The Bipartisan Campaign Reform Act of 2002 (“BCRA”), Public Law 107-155, 116 Stat. 81 (March 27, 2002), contains extensive and detailed amendments to the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. 431 et seq. This is one in a series of Notices of Proposed Rulemakings (“NPRM”) the Commission has recently published to meet the rulemaking deadlines set out in BCRA. The deadline for the promulgation of these rules is 270 days after the date of enactment, which is December 22, 2002.

This NPRM addresses: (1) Reporting of electioneering communications; (2) reporting of independent expenditures; (3) quarterly reporting by the principal campaign committees of candidates for the House of Representatives and the Senate; (4) monthly reporting by political party committees; and (5) the reporting of funds for political party committee office buildings.

The Commission sought comments on two of these topics previously in Notices of Proposed Rulemakings on “Electioneering Communications,” 67 FR 51,131 (August 7, 2002); and “Coordinated and Independent Expenditures,” 67 FR 60,042 (September 25, 2002). Another topic, addressing the reporting of funds for the purchase or construction of party office buildings, is based on a recently published final rule (“Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money; Final Rule,” 67 FR 49,123 and 49,127 (July 29, 2002)). The last two topics addressing the schedule of reporting for national political party committees and the principal campaign committees of House and Senate candidates have not previously been addressed in a BCRA-related NPRM.

In BCRA, Congress required the Commission to promulgate standards for reporting software, and also imposed certain other requirements on the Commission, and on various persons who file reports with the Commission, that will take effect when that computer software becomes available. 2 U.S.C. 434(a)(12). Although these Congressional mandates are related to reporting, which is the subject of this NPRM, the Commission does not propose to address the mandates here. The computer software standards will depend largely upon the results of this reporting rulemaking, and on the development of reporting forms following the completion of this rulemaking. Therefore, the Commission proposes to address the mandates in 2 U.S.C. 434(a)(12) as soon as feasible, and will solicit public comments on the mandates at that time.

The Commission's regulations at 11 CFR 100.19 define file, filed, and filing. Paragraph (a) of section 100.19 would be unaffected by this rulemaking, except for a new heading. Proposed paragraph (b) of section 100.19 would retain the pre-BCRA general rule that a document is considered timely filed if it is: (1) Delivered to the appropriate filing office (either the Commission or the Secretary of the Senate), or (2) sent by registered or certified mail and postmarked by 11:59 p.m. Eastern Standard/Daylight Time of the prescribed filing date—except for pre-election reports. The proposed revisions to paragraph (b) of section 100.19 would clarify that paragraph (b) is the general rule, but does not apply to reports addressed by paragraph (c) through proposed new paragraph (f).

Those exceptions would be as follows: Paragraph (c) for electronic filing—“filed” means received by the Commission at or before 11:59 p.m. Eastern Standard/Daylight Time on the filing date; paragraph (d) for 24-hour and 48-hour reports of independent expenditures—“filed” means received by the Commission no later than 11:59 p.m. Eastern Standard/Daylight Time of the day following (24-hour reports) or the second day following (48-hour reports) the date on which the spending threshold is reached in accordance with 11 CFR 104.4(f); paragraph (e) for “48-hour notices of last-minute contributions” (48-hour notices filed by authorized committees of candidates of contributions of $1,000 or more received after the 20th day but more than 48 hours before 12:01 a.m. of the day of an election)—“filed” means received by the Commission or the Secretary of the Senate within 48 hours of the receipt of a “last-minute” contribution of $1,000 or more; proposed paragraph (f) for 24-hour statements of electioneering communications—“filed” means received by the Commission by 11:59 p.m. Eastern Standard/Daylight Time of the day following the disclosure date (see 11 CFR 104.20).

Paragraphs (c) and (e) of §100.19 would remain unchanged, except for new headings.

Proposed revisions to paragraph (d) of section 100.19 would also require that the new 48-hour reports of independent expenditures, like the 24-hour reports, must be received rather than filed by the filing deadline. The proposed 48-hour reporting provision would allow filers to submit their reports using facsimile machines or electronic mail, as long as they are not required under 11 CFR 104.18 to file electronically. Under pre-BCRA paragraph (d) of §100.19, 24-hour reports of independent expenditures are only considered timely filed if they are received by the Commission or Secretary of the Senate within 24 hours of the time the expenditure is made. 1 Sending 24-hour reports by mail is not a viable option because it is unlikely these reports will be received by the Commission within 24 hours of the making of the expenditure. See “Final Rules and Explanation and Justification for 11 CFR 100.19,” 67 FR 12,834 (March 20, 2002). Pre-BCRA paragraph (d) also states that 24-hour reports may be filed by facsimile machine or electronic mail, in addition to other permissible means of filing ( e.g. , hand-delivery or overnight courier). Because the reasons behind the handling of 24-hour reports apply equally to the essentially similar 48-hour reports, the Commission is proposing this parallel rule.

Under 2 U.S.C. 434(f)(1), electioneering communications must be reported within 24 hours of the “disclosure date.” See proposed 11 CFR 104.20. The Commission proposes to add new paragraph (f) to 11 CFR 100.19 to require these 24-hour statements to be received by the Commission no later than 11:59 p.m. Eastern Standard/Daylight Time of the day following the disclosure date, rather than filed by that time. In addition, to assist filers with meeting this deadline, the proposed rule would allow them to file their 24-hour statements by facsimile machine or electronic mail. For the same reasons that are discussed with regard to proposed paragraph (d) of 11 CFR 100.19, this proposed paragraph would follow the timing and filing methods of 24-hour reports for independent expenditures.

Proposed paragraph (g) of 11 CFR 104.5 would move the pre-BCRA contents of paragraph (g) to proposed paragraph (g)(2) with revisions, and would add a new paragraph (g)(1), which would require that 48-hour reports of independent expenditures must be received by the Commission no later than 11:59 p.m. Eastern Standard/Daylight Time of the second day following the date on which a communication is publicly distributed or otherwise publicly disseminated. Note that the term “publicly distributed” refers to communications distributed by radio or television ( see 11 CFR 100.29(a)(5)) and the term “publicly disseminated” refers to communications that are made public via other media, e.g. , newspaper, magazines, handbills. Pre-BCRA paragraph (g) of 11 CFR 104.5 states that 24-hour reports of independent expenditures must be received by the appropriate officers no later than 24 hours after such independent expenditure is made.

Proposed paragraph (j) of §104.5 would address the filing dates for electioneering communications. Specifically, it would provide that the 24-hour statements must be received by the Commission by 11:59 p.m. Eastern Standard/Daylight Time on the day following the date of disclosure.

The Commission's pre-BCRA regulations require that 24-hour reports of independent expenditures supporting or opposing Senate candidates be filed with the Secretary of the Senate. See pre-BCRA 11 CFR 104.4(c), 109.2(b). In BCRA, Congress establishes the Commission as the place of filing for both 24- and 48-hour reports of independent expenditures, regardless of the office being sought by the clearly identified candidate. 2 U.S.C. 434(g)(3)(A). The proposed revisions to §105.2 would place the text of pre-BCRA 11 CFR 105.2 in proposed paragraph (a), adding the heading, “General Rule.” New proposed paragraph (b) of 11 CFR 105.2 would be headed, “Exception,” and would state that 24- and 48-hour reports of independent expenditures, must be filed with the Commission even if the communication refers to a candidate for the Senate. 2 U.S.C. 434(f).

The Commission has established reporting requirements for political committees making independent expenditures in accordance with 2 U.S.C. 434(b) and (g). See pre-BCRA 11 CFR 104.4. Paragraph (a) of §104.4 would be unaffected, other than the addition of a new heading, a grammatical correction, and an updated cross-reference.

Proposed new paragraph (b) would address reports of independent expenditures made by a political committee at any point in the campaign up to and including the 20th day before an election. Proposed paragraph (b)(1) would address independent expenditures aggregating less than $10,000 with respect to a given election during the calendar year, up to and including the 20th day before an election. This calendar year aggregation would be based on 2 U.S.C. 434(b)(4), which requires calendar year aggregation for reports of independent expenditures by political committees. Under this calendar year approach, political committees would report the independent expenditures on Schedule E of FEC Form 3X, filed no later than the regular reporting date under 11 CFR 104.5. The Commission would interpret 2 U.S.C. 434(g), added to the Act by BCRA, to require aggregation toward the various thresholds for independent expenditure reporting to be done on a per election basis within the calendar year. For example, if a political committee made $5,000 in independent expenditures with respect to a Senate race, and $5,000 in independent expenditures with respect to a House race, and both of these events occurred before the 20th day before the election, that political committee would not be required to file 48-hour reports, but would be required to disclose the independent expenditures in its regularly scheduled reports. If the political committee makes $5,000 in independent expenditures with respect to a clearly identified candidate in the primary, and an additional $5,000 in independent expenditures with respect to the same candidate in the general election, no 48-hour reports would be required; but again the committee would be required to disclose the independent expenditures in its regularly scheduled reports. The Commission requests comments on whether a different time period, such as an election cycle, should be employed instead of the calendar year period.

Paragraph (b)(2) would address independent expenditures aggregating $10,000 or more during the calendar year up to and including the 20th day before an election. These reports would also be filed on Schedule E of FEC Form 3X. However, these reports would be required to be received by the Commission no later than 11:59 p.m. Eastern Standard/Daylight Time of the second day following the date on which a communication that constitutes an independent expenditure is publicly distributed or otherwise publicly disseminated. Further, political committees would have to file an additional 48-hour report each time subsequent independent expenditures reach the $10,000 threshold with respect to the same election to which the first report related.

The Commission proposes revisions to renumbered paragraph (c) ( i.e. , pre-BCRA 11 CFR 104.4(b)) stating that 24-hour reports must be received by the Commission no later than 11:59 p.m. Eastern Standard/Daylight Time of the day following the date on which the $1,000 threshold is reached during the final 20 days before the election. Further, proposed revisions to this paragraph would specifically state that additional 24-hour reports must be filed each time during the 24-hour reporting period in which subsequent independent expenditures reach or exceed the $1,000 threshold with respect to the same election to which the previous report related.

Proposed paragraph (d) would contain the report verification information currently found in pre-BCRA paragraph (b) of §104.4. There would be non-substantive grammatical changes to conform this paragraph to other changes in the overall section.

Proposed paragraph (e) would largely restate pre-BCRA paragraph (c) of §104.4. The most significant proposed change to this paragraph would be to make the Commission and not the Secretary of the Senate the place of filing for 24- and 48-hour reports of independent expenditures relating to Senate candidates. 2 U.S.C. 434(g)(3). See the discussion of 11 CFR 105.2, above.

Proposed paragraph (f) of 11 CFR 104.4 would address aggregation of independent expenditures for reporting purposes. The provisions of pre-BCRA 11 CFR 109.1(f) would be redesignated and revised to explain when and how political committees and other persons making independent expenditures must aggregate independent expenditures for purposes of determining whether 48-hour and 24-hour reports must be filed. Note that this proposed aggregation rule would apply to independent expenditures by political committees, as well as other persons; proposed 11 CFR 109.10(c) and (d) would cross-refer to this paragraph. Proposed paragraph (f) would establish that every date on which a communication that constitutes an independent expenditure is “publicly distributed” or otherwise publicly disseminated serves as the date that every person must use to determine whether the total amount of independent expenditures has, in the aggregate, reached or exceeded the threshold reporting amounts ($1,000 for 24-hour reports or $10,000 for 48-hour reports). The term “publicly distributed” would have the same meaning as in new 11 CFR 100.29(b)(6), which the Commission is promulgating as part of a separate rulemaking. Thus, proposed paragraph (f) would set the same date as the starting date from which a person would have one or two days, where applicable, to file a 24-hour or 48-hour report on independent expenditures.

In addition, Congress changed the reporting requirements by adding the phrase “or contracts to make” to the statute. 2 U.S.C. 434(g)(1), (2). BCRA ties 24-hour and 48-hour reporting of independent expenditures to the time when a person “makes or contracts to make independent expenditures * * *” aggregating at or above the $1,000 and $10,000 thresholds, respectively. 2 U.S.C. 434(g)(4). Therefore, under proposed 11 CFR 104.4(f), each person would be required to include as of the proposed trigger date, in the calculation of the aggregate amount of independent expenditures, both disbursements for independent expenditures and all contracts obligating funds for disbursement for independent expenditures. Under this approach and the proposed timing requirements described above, once a communication that constitutes an independent expenditure is publicly distributed or disseminated as explained above, the person who paid for, or who contracted to pay for, the communication would be able to determine whether the communication satisfied the “express advocacy” requirement of the definition of an independent expenditure ( see 11 CFR 100.16) and would therefore be able to determine whether the disbursement for that communication constituted an independent expenditure. A person reaching or exceeding the applicable reporting threshold would be responsible for submitting a report by 11:59 p.m. Eastern Standard/Daylight Time of the day after, for 24-hour reporting, or two days after, for 48-hour reporting, the date of the public distribution or dissemination of that communication. Please note that under the proposed rules, independent expenditures would be reported by political committees after a disbursement is made, or a debt reportable under 11 CFR 104.11(b) is incurred, for an independent expenditure, but no later than 11:59 p.m. of the day following the day on which the independent expenditure is first publicly distributed or otherwise publicly disseminated.

In some situations, a political committee will not make payment or incur a reportable debt before the communication underlying the independent expenditure is publicly distributed or otherwise publicly disseminated. If the communication is both publicly distributed or otherwise publicly disseminated and paid for in the same reporting period, then the committee would report the independent expenditure on Schedule E for that reporting period. If the communication is aired in one reporting period ( e.g. , during the 24-hour reporting period) and payment is made in a later reporting period ( e.g. , during the post-general election period), then the committee would report the independent expenditure as a memo entry on Schedule E in the reporting period in which payment is made.

In other situations, however, a political committee may pay the production and distribution costs associated with an independent expenditure in one reporting period, but not publicly distribute or otherwise publicly disseminate it until a later reporting period. In this case, the committee would report the payment as a disbursement on Schedule B for operating expenditures. When, in a subsequent reporting period, the communication is publicly distributed or otherwise publicly disseminated, the committee would file a Schedule E for the independent expenditure referencing the earlier Schedule B transaction. The committee would also report the disbursement for the independent expenditure as a negative entry on Schedule B so the total disbursements are not inflated. Alternatively, if the committee wishes to disclose the independent expenditure before the communication is publicly disseminated, it could report the independent expenditure on Schedule E for the reporting period in which the disbursement is made, with no further reporting obligation except for the 48-hour report if the total disbursements for independent expenditures equal or exceed $10,000 at the time the communication is publicly distributed or otherwise publicly disseminated.

Obligations incurred but not yet paid (that are reportable debts), must be reported on Schedule D. When, in a subsequent reporting period, the communication is publicly distributed or otherwise publicly disseminated, the committee must file a Schedule E referencing the debt on Schedule D. The committee must continue to report the debt on Schedule D (and any payment on it on Schedule E), until the debt is extinguished.

The Commission seeks comment on its proposed interpretation of BCRA's “makes or contracts to make” language and the triggering mechanism for 24-hour and 48-hour reports. Specifically, the Commission seeks comment on an alternative interpretation that would make the actual disbursement or the execution of the contract to make the disbursement for an independent expenditure, rather than the public distribution or dissemination of the resulting communication, the triggering mechanism for the reporting requirements once the disbursements and obligations equal or exceed the respective thresholds. This change would require earlier reporting than is currently required or proposed ( i.e. , when the communication is publicly disseminated). The policy reasons for adopting this alternative interpretation would be similar to those described in the NPRM on the reporting of electioneering communications. See “Electioneering Communications” NPRM, 67 FR 51,131 (Aug. 7, 2002).

Proposed new § 109.10 would set forth the revised reporting requirements of pre-BCRA § 109.2. Under proposed new § 109.10, persons other than political committees would have to report their independent expenditures on either FEC Form 5 or in a signed statement containing certain information regarding the person who made the independent expenditure and the nature of the expenditure itself.

Proposed paragraph (a) of 11 CFR 109.10 would provide a cross-reference to 11 CFR 104.4 for political committees, under which they must report independent expenditures. Paragraph (a) of pre-BCRA 11 CFR 109.2 would be moved to proposed paragraphs (b) and (c) of § 109.10.

Proposed paragraph (c) would address reports of independent expenditures aggregating $10,000 or more with respect to a given election from the beginning of the calendar year up to and including the 20th day before an election. This proposed paragraph would require that 48-hour reports of independent expenditures be received rather than filed by 11:59 pm of the second day after the date on which the $10,000 threshold is reached. See discussion of received versus filed in § 100.19, above. Pre-BCRA paragraph (b) of § 109.2 indicates that 24-hour reports must be received after a disbursement is made for an independent expenditure, but no later than 24 hours after an independent expenditure is “made” under pre-BCRA paragraph 109.1(f). See the discussion of proposed 11 CFR 104.4(f), above. Under the proposed rules, paragraph (b) of pre-BCRA § 109.2 would be moved to new paragraph (d) of 11 CFR 109.10 and revised to reflect the modification to the aggregation and filing requirements in proposed 11 CFR 100.19(d) and 104.4 that are discussed above.

Proposed revisions to paragraph (d) of 11 CFR 109.10 (pre-BCRA 11 CFR 109.2(b)) would also mirror the changes in 11 CFR 104.4(c) as to when 24-hour reports of independent expenditures aggregating $1,000 or more after the 20th day before the election.

Proposed paragraph (e) of 11 CFR 109.10 ( i.e. , pre-BCRA 11 CFR 109.2(a)(1) and (c)) would address the contents and verification of statements filed in lieu of FEC Form 5. Proposed paragraph (e) would include one significant change from pre-BCRA 109.2(a)(1) and (c): A person making an independent expenditure would now be required to certify that the expenditure was made independently from a political party committee and its agents, in addition to the pre-BCRA requirement of certification that the expenditure was not coordinated with a candidate, the candidate's authorized committee, or an agent of either of the foregoing. This change reflects the addition of political party committees to the definition of “independent expenditure” in 2 U.S.C. 431(17) and the description of coordination in 2 U.S.C. 441a(a)(7)(B)(ii) under BCRA. For the same reasons explained with reference to the definition of “independent expenditure” in proposed 11 CFR 100.16, the Commission would continue to include “consultation” in the description of activity that would cause an expenditure to lose its independence ( i.e. , “in cooperation, consultation, or concert with” a candidate or political party committee) even though the statutory definition in 2 U.S.C. 431(17) does not retain the term.

In the Electioneering Communications Final Rules, the Commission stated it would revise the proposed rules on reporting electioneering communications and re-propose the rules as part of this rulemaking. 2 Consequently, these proposed rules include the reporting requirements for electioneering communications. Although, the Electioneering Communications NPRM originally would have designated the reporting of electioneering communications as § 104.19, the proposed rules would designate reporting of electioneering communications as section proposed § 104.20. Please note that in the narrative that follows, citations to § 104.19 refer to the original proposed rules in the Electioneering Communications NPRM, and citations to § 104.20 refer to the proposed rules in this BCRA reporting NPRM.

BCRA requires persons who make electioneering communications costing more than $10,000 to file disclosure statements with the FEC within 24 hours of the disclosure date. 2 U.S.C. 434(f)(1). In the Electioneering Communications NPRM, proposed § 104.19(b) would have defined “disclosure date” as “the first date by which a person has made one or more disbursements, or has executed one or more contracts to make disbursements, for the direct costs of producing or airing electioneering communications aggregating in excess of $10,000; * * *” 67 FR at 51,145 (August 7, 2002). The Electioneering Communications NPRM, however, sought comment on whether the disclosure date should be the date on which the electioneering communication aired. Thus, under this proposal, an organization could make disbursements or enter into a contract to make disbursements that exceed $10,000, but would not be required to disclose the disbursements or contract until the electioneering communication is aired. Although BCRA uses the term “airing,” the Commission has determined that “publicly distributed” more accurately encompasses how electioneering communications are disseminated to the public, including the airing of these communications. In the Electioneering Communications Final Rules, the Commission defines “publicly distributed” to mean “aired, broadcast, cablecast, or otherwise disseminated through the facilities of a television station, radio station, cable television system, or satellite system.” 11 CFR 100.29(b)(6). Therefore, the proposed § 104.20(a)(5) would adopt the definition of “publicly distributed” in 11 CFR 100.29(b)(6) and the term “publicly distributed” would be used throughout the proposed rules instead of “airing.”

All of the commenters who addressed this issue disagreed with the proposed rule and advocated adopting a final rule that would define “disclosure date” as the date of the public distribution of the electioneering communication. 3 They argued that there is no electioneering communication, and therefore no reporting requirement, until the communication is actually publicly distributed. One witness at the August 28, 2002 public hearing on electioneering communications did acknowledge that in some cases it may be difficult to ascertain when an electioneering communication is publicly distributed for purposes of triggering the 24-hour reporting period because the contract may not specify a precise time that the communication will be publicly distributed or because in some instances the broadcaster does not air the communication during the block of time specified in the contract. In addition, the Commission believes that there could be legal and practical concerns with compelling disclosure of potential electioneering communications before they are finalized and publicly distributed, particularly when such disclosure could force reporting entities to divulge confidential strategic and political information about their possible future activities.

Taking into consideration the comments described above, the Commission proposes to make the date that an electioneering communication is publicly distributed as the disclosure date under proposed §104.20(a)(1). The Commission's proposal reflects its concerns that there are legal and practical issues associated with compelling disclosure of potential electioneering communications before they are finalized and publicly distributed. To address the concern that a person may not know the exact time an electioneering communication will be publicly distributed during the day that it is scheduled to air, the Commission is proposing to interpret the 24-hour period in which to report the electioneering communication as starting at the end of the day in which the communication is publicly distributed. Therefore, proposed §104.20(b) would require reporting of an electioneering communication by the end of the following day. The Commission seeks comment on this interpretation.

In the Electioneering Communications NPRM, proposed §104.19(a) would have required every person who makes a disbursement, or executes a contract, for the direct costs of producing or airing electioneering communications that aggregate in excess of $10,000 during a calendar year to file a statement with the Commission. Furthermore, proposed §104.19(a)(2) would have included a non-exhaustive list of what constitutes direct costs of electioneering communications. The Commission sought comment on two issues relating to this proposed requirement. The first was whether the list in proposed §104.19(a)(2) was adequate and whether the list should be exhaustive. The second issue was whether the direct costs of producing an electioneering communication and the direct costs of airing it should be aggregated separately or together to determine whether the $10,000 threshold has been reached.

The commenters to the Electioneering Communications NPRM were split on the issue of whether the list of direct costs in proposed §104.19(a)(2) should be exhaustive or non-exhaustive. One commenter who supported an exhaustive list argued that it is clear what is involved in producing a communication, and the proposed rule adequately addresses that. Another commenter recommended a non-exhaustive list so that the Commission could retain flexibility to identify other costs associated with producing and airing communications not listed in the proposed rules.

In order to provide clear guidance on this issue, proposed 11 CFR 104.20(a)(2) would include an exhaustive list of direct costs associated with producing or airing electioneering communications within the proposed definition of “direct costs of producing or airing electioneering communications.” The Commission seeks comments on whether there are other direct costs associated with producing or airing electioneering communications that should be included in the proposed definition. In particular, the Commission seeks comment on what, if any, other in-house production costs should be considered direct costs. The Commission also welcomes additional comments on whether the list in proposed §104.20(a)(2) should be exhaustive.

The commenters also disagreed on the question of the aggregation of direct costs of producing or airing electioneering communications. Some commenters argued that BCRA should be read to require that these costs should be aggregated separately. Under this interpretation, if it costs a person $7,000 to produce the electioneering communication and $7,000 to air it, the threshold has not been met because neither the direct costs of producing or airing the electioneering communication reached $10,000. In contrast, other commenters argued that BCRA mandates that the direct costs of producing and airing the electioneering communication be aggregated. Under this approach, the example above would result in the $10,000 threshold being met because the direct costs of producing and airing would be $14,000.

The language in proposed §104.20(b) would be identical to the language originally proposed in §104.19(a). Thus, when the direct costs of producing or airing an electioneering communication exceed $10,000 when aggregated together, the person who is making the electioneering communication would be required to file a statement with the Commission when the electioneering communication is publicly distributed.

The Electioneering Communication NPRM included two proposed alternatives, identified as Alternative 4-A and Alternative 4-B, to implement the BCRA requirement to disclose “any person sharing or exercising direction or control over the activities” of the person making the disbursement for electioneering communications. See 2 U.S.C. 434(f)(2)(A). Many of the commenters expressed concern that both alternatives are vague and could encompass a large number of people, especially for electioneering communications made by membership organizations. Some of the commenters were also concerned that disclosing this information may reveal sensitive or confidential information and the decision-making processes of organizations, especially non-profit organizations, thereby placing them at a competitive disadvantage. For these reasons, these commenters argued that the Commission should require limited, if any, disclosure of persons who share or exercise direction or control over the person who makes disbursements for electioneering communications or the activities involved in making electioneering communications.

In contrast, several commenters, including the Congressional sponsors of BCRA, disagreed with both alternatives because in their view neither would disclose sufficiently the information required by BCRA. See id. They argued that the purpose of this disclosure requirement is to reveal not only those who have direction or control over the electioneering communications, but also those who have direction or control over the organization that makes the electioneering communications.

While the Commission appreciates the concerns of those who objected to disclosure of the decision-making process of their organizations, BCRA requires persons who make electioneering communications to disclose those who share or exercise direction or control over the person making the disbursement for electioneering communications. 2 U.S.C. 434(f)(2)(A). Because neither Alternative 4-A nor Alternative 4-B in the Electioneering Communications NPRM appear to encompass the disclosure required by BCRA, proposed §104.20(c)(2) would not incorporate either of the two alternatives. Instead, proposed paragraph (c)(2) would adopt the language of 2 U.S.C. 434(f)(2)(A).

The Electioneering Communications NPRM sought comment on whether the proposed rules should define “direction or control over the activities” and whether such definition should draw upon the existing earmarking regulations at 11 CFR 110.6(d) or the definition of “to direct” at 11 CFR 300.2(n). A commenter suggested that the definition should be broadly defined and should include those persons with the ability to influence the decision-making process concerning electioneering communications. While this same commenter agreed that the definition of “to direct” could be modified for inclusion into the definition of “direction or control over the activities,” another commenter stated that it is unsuitable to use the definition of “to direct” or the earmarking regulations in this context.

To provide further guidance on proposed §104.20(c)(2), the proposed rules would include a definition of “sharing or exercising direction or control.” Because it appears that “direction or control” in the context of 2 U.S.C. 434(f)(2)(A) refers to the management or decision-making process of an organization or a qualified nonprofit corporation (“QNC”), proposed §104.20(a)(3) would define “sharing or exercising direction or control” to mean exercising authority or responsibility for policy formulation, day-to-day management, obligation of funds, or hiring or firing employees. The Commission believes that these functions would provide sufficient scope to capture responsible persons and entities without sweeping too broadly.

In the alternative, the Commission could define “sharing or exercising direction or control” to mean the officers, directors, partners, or any other individuals who have the authority to bind the organization, entity, or person making the disbursement for electioneering communication. This alternative, which is not reflected in the proposed rules, seeks a more objective, bright-line definition of “direction or control” and would focus the definition on those persons who have the authority to act on behalf of the organization. The Commission seeks comments on these approaches to implementing 2 U.S.C. 434(f)(2)(A). The Commission also seeks comments on how these proposals would apply to individuals making electioneering communications.

Under 2 U.S.C. 434(f)(2)(D), the elections to which the electioneering communications pertain, as well as the names of all clearly identified candidates referred to in the communications, must be disclosed. The Electioneering Communications NPRM provided two alternatives to proposed 11 CFR 104.19(b)(5), identified as Alternative 5-A and Alternative 5-B, which would implement this statutory provision. 67 FR 51,146. Both alternatives would require disclosure of the election and all clearly identified candidates who are referred to in the electioneering communication, but contain different language. Commenters preferred the language of Alternative 5-B because it would be easier to read and would be more consistent with 2 U.S.C. 434(f)(2)(D). Alternative 5-B arguably also is more consistent with what the Commission is proposing as the disclosure date, see above, as there is no doubt as to the names of clearly identified candidates appearing in a communication once a communication is publicly distributed. Accordingly, proposed §104.20(c)(5) would incorporate the language of Alternative 5-B of the Electioneering Communications NPRM.

BCRA requires persons who make electioneering communications and create segregated bank accounts for electioneering communications to disclose the names and addresses of contributors who contribute an aggregate of $1,000 or more to that segregated account. 2 U.S.C. 434(f)(2)(E). If the organization that makes electioneering communications does not use a segregated bank account, then it would be required to disclose the names and addresses of contributors who contribute an aggregate of $1,000 or more to that organization from the beginning of the preceding year through the disclosure date. 2 U.S.C. 434(f)(2)(F).

In the Electioneering Communications NPRM, the Commission sought comment on whether amounts given to persons who make disbursements for electioneering communications are contributions subject to the limitations, prohibitions, and reporting requirements of the Act. The Commission proposed to treat amounts given to political committees as contributions because BCRA refers to “funds contributed” and “contributors.” See 2 U.S.C. 434(f)(2)(E) and (F). Conversely, amounts given to persons who are not political committees would not be considered contributions. Comments on this issue were generally favorable to the Commission's approach. 4

Upon further analysis of this issue, the Commission proposes a different approach as to the question of whether amounts given for electioneering communications are contributions or donations. As stated in the Electioneering Communications Final Rules, the definition of “electioneering communications” does not include expenditures or independent expenditures that are subject to the limitations, prohibitions, and reporting requirements of the Act and the Commission's regulations. 11 CFR 100.29(c)(3). Communications made by political committees that would otherwise qualify as electioneering communications would be reported as expenditures or independent expenditures because they are made in connection with Federal elections. By operation of the exemption of expenditures and independent expenditures from the definition of “electioneering communications,” these communications would not be considered electioneering communications. Therefore, political committees, by definition, do not make electioneering communications. Consequently, only persons who are not political committees would make disbursements for electioneering communications.

As stated above and in the Electioneering Communications NPRM, the Commission proposed to designate amounts given for electioneering communications purposes to persons who are not political committees as “donations.” The Commission believes that amounts given to entities that are not political committees for electioneering communications should not be treated as contributions and should not count towards political committee status, unless these amounts would otherwise constitute a contribution under subparts B and C of part 100. Although the statutory language of BCRA uses the terms “contributor” and “contributed,” it does not use the term “contribution” nor does it amend the definition of “contribution” in 2 U.S.C. 431(8). Thus, it appears that Congress did not intend these amounts to be contributions automatically to persons who are not political committees, especially in light of the statutory exemption for expenditures and independent expenditures from the definition of “electioneering communications.” Accordingly, proposed §104.20(c) refers to amounts given for electioneering communications as “donations” and the givers of the amounts as “donors.” Additionally, all comments on the Electioneering Communications NPRM on this issue favored this approach. The Commission again seeks comment on this approach.

In reading 2 U.S.C. 434(f)(2)(E) and (F) together with 2 U.S.C. 441b(c)(3)(B), the Commission stated in the Electioneering Communications NPRM that these disclosure requirements for segregated bank accounts appear to apply only to qualified nonprofit corporations organized under 26 U.S.C. 501(c)(4). See 67 FR 51,143. Therefore, proposed 11 CFR 104.19(b)(6) would have required only QNCs to disclose their contributors for purposes of electioneering communications. See 11 CFR 114.10 for QNC status.

The Electioneering Communications NPRM narrative that explained proposed section 104.19(b)(7) clearly states that all persons who make electioneering communications, including QNCs that do not use segregated bank accounts, would be required to disclose their contributors who contribute an aggregate of over $1,000 during the prescribed time period. 67 FR 51,143. Nevertheless, some commenters interpreted proposed §104.19(b)(7) to apply only to QNCs and objected to limiting the disclosure requirements to only QNCs. They argued that BCRA does not limit the requirements of 2 U.S.C. 434(f)(2)(E) and (F) to just QNCs. Consequently, they recommended that all persons who make electioneering communications should be required to disclose their contributors under proposed §104.19(b)(7) and the option for segregated bank accounts in proposed §104.19(b)(6) should be extended to all persons who make electioneering communications. Additionally, some commenters expressed concern as to the requirement that organizations would be required to disclose their donors because donors may become inhibited from making donations aggregating over $1,000.

Because the Commission sees merit in these arguments, the revised proposed rules reflect the commenters' suggestions and would make clear that the application of proposed §§104.20(c)(7) and (8) would include all persons who make electioneering communications, not just QNCs. Proposed paragraphs (c)(7) and (8) would incorporate the language in proposed §§104.19(b)(6) and (7) with modifications as discussed below.

(1) Disclosure of donors when exclusively using segregated bank accounts to make disbursements for electioneering communications

Under proposed §104.19(b)(6) in the Electioneering Communications NPRM, QNCs that use segregated bank accounts to make disbursements for electioneering communications would be required to disclose only contributors who contributed an aggregate in excess of $1,000 to that segregated bank account. As stated above, the Commission agrees with the suggestion that this option should be made available to all persons who may make electioneering communications. Accordingly, proposed § 104.20(c)(7) would allow all such persons to establish a separate bank account to limit their reporting of the identities of their donors of $1,000 or more to those who have donated directly to that bank account, as long as only funds from the separate bank account are used to pay for electioneering communications. Additionally, the Commission notes that the final rules at 11 CFR 114.14(d) provide such persons that are not QNCs with the option of establishing a segregated bank account similar to that allowed to QNCs.

(2) Disclosure of donors when not exclusively using segregated bank accounts to make disbursements for electioneering communications

Because there was some confusion as to the scope of the reporting requirement in proposed 11 CFR 104.19(b)(7), proposed 11 CFR 104.20(c)(8) would differ from proposed § 104.19(b)(7) in that it would remove the reference to QNCs. Thus, proposed § 104.20(c)(8) would make clear that all persons who make electioneering communications would be required to disclose their donors who donate over $1,000 in the aggregate, if they do not use segregated bank accounts.

One commenter to the Electioneering Communications NPRM argued that the members of the organizations it represented could be subject to negative consequences if their names are disclosed in connection with an electioneering communication. The FECA provides for an advisory opinion process concerning the application of any of the statutes within the Commission's jurisdiction or any regulations promulgated by the Commission, and such a group could also seek an advisory opinion from the Commission to determine if the group would be entitled to an exemption from disclosure that would be analogous to the exemption provided to the Socialist Workers Party in Advisory Opinions 1990-13 and 1996-46 (both of which allowed the Socialist Workers Party to withhold the identities of its contributors and persons to whom it had disbursed funds because of a reasonable probability that the compelled disclosure of the party's contributors' names would subject them to threats, harassment, or reprisals from either Government officials or private parties.). BCRA's legislative history recognizes the need for limited exceptions in these circumstances. See 148 Cong. Rec. S2136 (daily ed. Mar. 20, 2002) (remarks of Sen. Snowe).

Proposed § 104.20(c) would require disclosure of additional information, not described above, in connection with the reporting of electioneering communications as mandated by BCRA. See 2 U.S.C. 434(f)(2)(A) and (C). Proposed paragraph (c)(1) would require identification of the person making the disbursement or the person's principal place of business. Proposed paragraph (c)(3) would require identification of the custodian of the books and accounts. Proposed paragraph (c)(4) would require disclosure of information about disbursements that exceed $200. Proposed paragraph (c)(6) would require identifying the disclosure date.

Proposed 11 CFR 104.20(d) would require all persons who make electioneering communications or accept donations for the purpose of making electioneering communications to maintain records in accordance with 11 CFR 104.14. In the Electioneering Communications NPRM, proposed § 104.19(c) would have exempted QNCs from the recordkeeping requirements. The commenters who addressed this issue were split on whether QNCs should be exempted from the recordkeeping requirements. A commenter who did not support the exemption argued that because these entities are required to report their electioneering communications, they should also be required to maintain records that relate to the electioneering communications in order to support their reports.

In determining that all of the reporting and recordkeeping requirements for political committees were too burdensome for QNCs making independent expenditures, the Supreme Court in FEC v. Massachusetts Citizens For Life, Inc. (“MCFL”) noted that MCFL, Inc. was subject to more “extensive requirements and more stringent restrictions” than unincorporated nonprofit organizations. 479 U.S. 238, 254-255 (1986). In contrast, proposed § 104.20(d) would require QNCs to maintain only those records that pertain to their electioneering communications which should not be burdensome for them. Additionally, this recordkeeping requirement is no different than what is required of any other person, including unincorporated nonprofit organizations, that make disbursements for electioneering communications. Furthermore, the availability of these records would be necessary to assess the accuracy of the electioneering communications reports filed by QNCs. Therefore, proposed paragraph (d) would not include an exemption for QNCs. The Commission welcomes further comments on this issue.

The Electioneering Communications NPRM proposed amending current 11 CFR 105.2 to require principal campaign committees of Senatorial candidates and other political committees that support only Senatorial candidates to file their statements of electioneering with the Commission. The Commission, however, has determined that political committees do not make electioneering communications by operation of the definition of “electioneering communications” in 11 CFR 100.29. Therefore, proposed § 105.2(b) would not incorporate the language from the electioneering communications NPRM or include mention of statements of electioneering communications.

Unlike the proposed provisions for independent expenditures, the proposed rules for electioneering communications do not include provisions that remove the requirement to file reports of electioneering communications with the Secretary of State if that state has obtained a waiver under 11 CFR 108.1(b). See proposed 11 CFR 104.4(e), below. The Commission seeks comments on whether proposed 11 CFR 104.20 should include such a provision. (At the current time, only 1 state, Montana, and two territories, Guam and Puerto Rico, have not obtained waivers.)

Proposed 11 CFR 104.5(a) would set forth the new reporting schedule for the principal campaign committees of House of Representatives and Senate candidates. Prior to BCRA, the principal campaign committees of House and Senate candidates were allowed, in the non-election years, to file semi-annually. After November 6, 2002, excluding reports for runoff elections, principal campaign committees of House and Senate candidates must file quarterly in non-election years, as well as in the election year. 2 U.S.C. 434(a)(2)(B). Proposed revised § 104.5(a)(1) would state that these committees must file quarterly. Like other quarterly reports, these must be complete as of March 31, June 30, September 30, and December 31, and must be filed by April 15, July 15, October 15, and January 31 of the following year, respectively. Proposed paragraph (a)(2) of 11 CFR 104.5 would set forth the requirements for pre-election and post-general election reports in the election year, which would be identical to paragraphs (a)(1)(i) and (ii) of the pre-BCRA section. The rules regarding semi-annual reporting (in pre-BCRA § 104.5(a)) would be deleted. Please note that these new reporting dates do not affect the principal campaign committees or other authorized committees of Presidential candidates.

Proposed revisions to the introductory language for paragraph (c) would clarify that while non-authorized political committees may choose to file quarterly or monthly, a national committee of a political party must report monthly under proposed 11 CFR 104.5(c)(4).

Proposed 11 CFR 104.5(c)(4) would be a new provision implementing the BCRA requirement that national political party committees must report on a monthly basis. 2 U.S.C. 434(a)(4)(B). Previously, national party committees were allowed to file quarterly in the election year and semi-annually in the non-election years. The changes to the Act by BCRA specifically state that national political party committees must file monthly, including pre-general election and post-general election reports. These changes may have been intended to remove any doubt as to whether national political party committees that filed quarterly had to file these reports if they did not make any contributions or expenditures on behalf of candidates in these elections during pre-BCRA election reporting periods. These rules would implement BCRA's amendment.

The proposed rules would apply to the Congressional campaign committees of the political parties as national political party committees. The Commission seeks comments on whether Congressional campaign committees should so specifically be included in the regulations.

Before BCRA, the Act and Commission regulations provide an exception to the definition of contribution and expenditure for donations to a national or State party committee that are specifically designated to defray any cost incurred for the construction or purchase of its office facility. Pre-BCRA 2 U.S.C 431(8)(B)(vii); pre-BCRA 11 CFR 100.7(b)(12). This exception is reflected in current 11 CFR 104.3(g), which provides that funds or anything of value that were designated for party office building funds and received by a party committee must be reported as memo entries.

To implement BCRA, the Commission adopted new regulations at 11 CFR 300.12 and 300.35, which eliminate this exception for national party committees and provide that the source and reporting of donations used for the costs incurred by a State, district, or local party committee for the purchase or construction of its office building are subject to State law if donated to a non-Federal account of the committee. “Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money; Final Rule,” 67 FR 49,123 and 49,127. However, if funds or things of value are contributed to (or for use by) the Federal account of a State, district, or local party committee for the purchase or construction of its office building, then the amounts donated are contributions under the Act. Consequently, proposed paragraph (g) of 11 CFR 104.3 would make it clear that any funds or things of value received by a Federal account and used for the purchase or construction of an office building, regardless of a specific contributor designation, are contributions and are not treated differently from other funds or things of value donated to a Federal account.

The Commission certifies that the attached proposed rules, if promulgated, would not have a significant economic impact on a substantial number of small entities. The bases of this certification are several. There are four areas in which new rules are being proposed. The economic impact on small entities of each subject of new proposed rules is addressed below.

Independent expenditure reporting First, with regard to the proposed new rules addressing independent expenditures that the national, State, and local party committees of the two major political parties, and other political committees are not small entities under 5 U.S.C. 601 because they are not small businesses, small organizations, or small governmental jurisdictions. Further, individual citizens operating under these rules are not small entities.

The small entities to which the rules would apply would not be unduly burdened by the proposed rules because there is no significant extra cost involved, as independent expenditures must already be reported. Collectively, the differential costs will not exceed 100 million dollars per year. In addition, new reporting requirements would not significantly increase costs, as they only apply to those spending $10,000 or more on independent expenditures, and the actual reporting requirements are the minimum necessary to comply with the new statute enacted by Congress.

Electioneering communications Second, with regard to the proposed rules addressing electioneering communications, the only burden the proposed rules impose is on persons who make electioneering communications, and that burden is a minimal one, requiring persons who make such communications to provide the names and addresses of those who made donations to that person when the costs of the electioneering communication exceed $10,000. If that person is a corporation that qualifies as a QNC, then it must also certify that it meets that status. The number of small entities affected by the proposed rules is not substantial.

The Commission would adopt several rules that seek to reduce any burden that might accrue to persons who must file reports. First, the Commission would interpret the reporting requirement such that no reporting is required until after an electioneering communication is publicly distributed. More than likely, this would only require that person to file one report with the Commission. Also, the Commission would allow all persons paying for electioneering communications to establish segregated accounts, and to report the names and addresses of only those persons who contributed to those accounts. Further, the Commission would interpret the statute to not require that a certification of QNC status be filed until the person is also required to file a disclosure report. These are significant steps the Commission would take to reduce the burden on those who would make electioneering communications. The overall burden on the small entities affected by these proposed rules for reporting electioneering communications would not amount to $100 million on an annual basis. Moreover, these proposed rules would be no more than what is strictly necessary to comply with the new statute enacted by Congress.

Reporting schedules for house and senate candidates Third, regarding the new rules requiring a different non-election year reporting schedule for the authorized committees of House and Senate candidates, the reporting frequencies have increased, however, the burden would not amount to $100 million on an annual basis. Moreover, these proposed rules would be no more than what is strictly necessary to comply with the new statute enacted by Congress.

Reporting schedules for national committees of political parties Fourth, regarding the new rules requiring a different reporting schedule for national committees of political parties, as noted above, the two major national party committees are not small entities under 5 U.S.C. 601.

The FAA invites comments on this proposed rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments to the address specified under the caption ADDRESSES. We will consider all comments received on or before the closing date. We may amend this proposed rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of this proposed AD action and determining whether we need to take additional rulemaking action.

The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this proposed rule that might suggest a need to modify the rule. You may view all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each contact we have with the public that concerns the substantive parts of this proposed AD.

If you want FAA to acknowledge the receipt of your mailed comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2002-CE-18-AD.” We will date stamp and mail the postcard back to you.

Reports of chafing and/or arcing of the fuel boost pump wiring inside the fuel pump reservoir that supplies fuel to each engine on Cessna Model 441 airplanes caused us to issue AD 2002-09-13, Amendment 39-12746 (67 FR 31117, May 9, 2002). AD 2002-09-13 requires you to: (1) Do a one-time inspection of the electrical wiring going to the fuel boost pump reservoir and the boost pump wiring inside the reservoir for chafing or damage, and (2) repair or replace the wiring as necessary.

These actions are required in accordance with Cessna Conquest Service Bulletin No.: CQB02-1R1, Revision 1, dated April 22, 2002.

Further analysis of this situation reveals that:

—The actions required by AD 2002-09-13 should also apply to Model F406 airplanes;

—The inspection should be repetitive; and

—Improved design wire harnesses and fuel boost pumps should eventually be installed as terminating action for the repetitive inspections.

Cessna has issued Caravan Service Bulletin No.: CAB02-8, dated June 3, 2002, Fuel Boost Pump Wiring Harness Inspection/Modification. This service bulletin affects the Model F406 airplane, a model of similar type design as the Model 441 airplane.

Cessna has also replaced Conquest Service Bulletin No.: CQB02-1, Revision 1, with Conquest Service Bulletin No.: CQB02-1, Revision 2, dated October 7, 2002.

Service Bulletins Numbers: CAB02-8 and CQB02-1, Revision 2, also specify and include procedures for installing improved design wire harnesses and fuel boost pumps (as a terminating action for the repetitive inspections).

After examining the circumstances and reviewing all available information related to the incidents described above, we have determined that:

—The unsafe condition referenced in this document exists or could develop on other Cessna Models 441 and F406 airplanes of the same type design;

—The actions of AD 2002-09-13 should be repetitive and the improved design parts eventually incorporated; and

—AD action should be taken in order to correct this unsafe condition.

This proposed AD would supersede AD 2002-09-13 with a new AD that would require repetitive inspections of the Models 441 and F406 airplanes fuel boost pump wiring inside and outside the boost pump reservoir for chafing or damage and replacement of the wiring and (for the Model F406) fuel boost pump, as necessary, and require eventual installation of an improved design wire harness and fuel boost pump as terminating action for the repetitive inspections.

The FAA's aging commuter aircraft policy briefly states that when a modification exists that could eliminate or reduce the number of required critical inspections, the modification should be incorporated. This policy is based on the FAA's determination that reliance on critical repetitive inspections on airplanes utilized in commuter service carries an unnecessary safety risk when a design change exists that could eliminate or, in certain instances, reduce the number of those critical inspections. In determining what inspections are critical, the FAA considers (1) the safety consequences of the airplane if the known problem is not detected by the inspection; (2) the reliability of the inspection such as the probability of not detecting the known problem; (3) whether the inspection area is difficult to access; and (4) the possibility of damage to an adjacent structure as a result of the problem.

The alternative to replacing the fuel boost pump wiring and fuel boost pump would be to repetitively inspect this area for the life of the airplane. Therefore, FAA has determined that the improved design wire harness and fuel boost pump should be incorporated in all affected airplanes.

We estimate that this proposed AD affects 370 airplanes in the U.S. registry.

We estimate the following costs to accomplish the proposed inspection:

For Model 441 airplanes, we estimate the following costs to accomplish the proposed replacements:

For Model F406 airplanes, we estimate the following costs to accomplish the proposed replacements:

The initial compliance time of this proposed AD is presented in both hours TIS (25 hours) and calendar time (60 days). Because the affected airplanes are used in general aviation operations, some operators may accumulate 25 hours TIS on the airplane in a week while others may not accumulate 25 hours TIS in a year. Although the condition specified by this proposed AD is only unsafe during airplane operation, the condition could exist on an airplane with 500 hours TIS or 2,000 hours TIS. We have determined that the dual compliance time:

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposed rule would not have federalism implications under Executive Order 13132.

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

Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments will be considered before taking action on the proposed rule. The proposals contained in this document may be changed in light of the comments received.

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

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this proposal must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2002-SW-01-AD.” The postcard will be date stamped and returned to the commenter.

Transport Canada, the airworthiness authority for Canada, notified the FAA that an unsafe condition may exist on BHT Model 206A, 206A-1, 206B, 206B-1, 206L, 206L-1, 206L-3, and 206L-4 helicopters. Transport Canada advises that Tedeco B3188B and B4093 chip detectors could possibly have poor or no continuity between the insert and the chip detector housing. This could result in no chip indication when the chip detector has been bridged by metal particles.

Bell Helicopter Textron has issued Alert Service Bulletin No. 206-01-96, Revision A, and No. 206L-01-119, Revision A, both dated May 7, 2001, which specify accomplishing the Eaton Tedeco Product Bulletins attached to their Alert Service Bulletin. The Eaton Tedeco Product Bulletins contain procedures for performing a continuity test and repair of chip detectors and replacing repaired chip detectors. Transport Canada classified these alert service bulletins as mandatory and issued AD No. CF-2001-33, dated August 24, 2001, to ensure the continued airworthiness of these helicopters in Canada.

These helicopter models are manufactured in Canada and are type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral agreement, Transport Canada has kept the FAA informed of the situation described above. The FAA has examined the findings of Transport Canada, reviewed all available information, and determined that AD action is necessary for products of these type designs that are certificated for operation in the United States.

This unsafe condition is likely to exist or develop on other helicopters of the same type designs registered in the United States. Therefore, the proposed AD would require performing a continuity test, repairing the chip detectors, and replacing repaired chip detectors. The actions would be required to be accomplished in accordance with the alert service bulletins and attached technical bulletin described previously. Repairing the chip detectors is intended to serve as an interim action until the repaired chip detectors are replaced.

The FAA estimates that 2,262 helicopters of U.S. registry would be affected by this proposed AD, that it would take approximately 0.5 work hours per helicopter to initially inspect the chip detectors, and 0.5 work hours per helicopter to repair and ultimately replace any chip detectors that were previously temporarily repaired, and that the average labor rate is $60 per work hour. Cost of the chip detector is estimated to be $75. Based on these figures, the total cost impact of the proposed AD on U.S. operators is estimated to be $186,615, assuming half of the fleet will require repairing and replacing the chip detectors. The chip detector manufacturer has stated that it may provide reworked or replacement parts at no charge at its discretion.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

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

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

The Federal Alcohol Administration Act (FAA Act) at 27 U.S.C. 205(e) requires that alcohol beverage labels provide the consumer with adequate information regarding a product's identity while prohibiting the use of deceptive information on such labels. The FAA Act also authorizes the Bureau of Alcohol, Tobacco and Firearms (ATF) to issue regulations to carry out the Act's provisions.

Regulations in 27 CFR Part 4, Labeling and Advertising of Wine, allow the establishment of definitive viticultural areas. The regulations allow the name of an approved viticultural area to be used as an appellation of origin on wine labels and in wine advertisements. A list of approved viticultural areas is contained in 27 CFR part 9, American Viticultural Areas.

Section 4.25a(e)(1), title 27, CFR, defines an American viticultural area as a delimited grape-growing region distinguishable by geographic features, the boundaries of which have been delineated in subpart C of part 9.

Section 4.25a(e)(2) outlines the procedure for proposing or amending an American viticultural area. Any interested person may petition ATF to establish a grape-growing region as a viticultural area or modify an existing area. A petition for a new area should include:

(a) Evidence that the name of the proposed viticultural area is locally and/or nationally known as referring to the area specified in the petition;

(b) Historical or current evidence that the boundaries of the viticultural area are as specified in the petition;

(c) Evidence relating to the geographical characteristics (climate, soil, elevation, physical features, etc.) which distinguish the viticultural features of the proposed area from surrounding areas;

(d) A description of the specific boundaries of the viticultural area, based on features which can be found on United States Geological Survey (U.S.G.S.) maps of the largest applicable scale; and

(e) A copy (or copies) of the appropriate U.S.G.S. map(s) with the boundaries prominently marked.

A petition requesting the modification of an established viticultural area should include information, evidence, and maps appropriate to support the requested change(s).

ATF established the Temecula viticultural area (27 CFR 9.50) in Treasury Decision ATF-188, which was published in the Federal Register on October 23, 1984 (See 49 FR 42563). Located in southern California, the 33,000-acre Temecula viticultural area is in southwestern Riverside County in the Temecula Basin. The viticultural area covers the southern portion of the former Vail Ranch, and its outer boundaries generally follow those of the historical Santa Rosa, Temecula, Little Temecula, and Pauba land grants.

Treasury Decision ATF-188 stated that the name “Temecula” was derived from the Luiseno Indian word “Temeku,” which means “a place where the sun breaks through the white mist.” The original Temecula petition stated that this description applied to the entire viticultural area, which is in a valley characterized by bright sun and misty marine air that flows inland from the Pacific Ocean. The 1984 decision noted that it is this marine air, which enters the Temecula Valley through gaps in the Santa Ana Mountains, that allows grape growing in this area.

The Temecula Valley Winegrowers Association has submitted a petition to ATF requesting that the Temecula viticultural area's name be changed to “Temecula Valley.” The petitioners believe this name change will provide a more accurate description of the Temecula area's geography and provide greater clarity as to the area's location for wine consumers and the public. This proposed name change does not affect the boundaries of the established Temecula viticultural area.

When the Temecula viticultural area was originally petitioned twenty years ago, the Association's petition states, the area was largely rural and agricultural. The small, unincorporated village of Temecula was located near the middle of the area's southern boundary. This village is now an incorporated city, larger in size, with a growing population. According to the petitioners, the city of Temecula's growth has accentuated the differences between the city and the surrounding agricultural region known as the Temecula Valley.

The current petition states that when the Temecula viticultural area was petitioned 20 years ago, the terms “Temecula” and “Temecula Valley” were used interchangeably. The petition cites evidence from Tom Hudson's book “A Thousand Years in the Temecula Valley” (Temecula Valley Chamber of Commerce, 1981), including its many uses of the term “Temecula Valley,” in support of this position. The original Temecula petition and the 1984 Treasury Decision also cited this work. The current petition also cites the local telephone directory, which shows that numerous businesses and agencies use the name “Temecula Valley” in conjunction with their operating name. The 1984 Treasury Decision additionally noted the planned establishment of the new Temecula Valley High School within the viticultural area's boundaries.

The Temecula Valley Winegrowers Association petition also comments on the importance of the word “valley” in relation to the Temecula area by noting that the Association itself is a merger of the Temecula Valley Vintners Association and the Temecula Winegrape Growers Association. In addition, the petition cites the use of “Napa” and “Napa Valley” as an example of how the differences between a city (Napa) and the surrounding agricultural area (Napa Valley) are recognized in a viticultural area name. The petition states, “To continue to mandate the term “Temecula” is to honor a loose and ill-defined use of the term.”

The current petition also cited a letter from Mr. Gary McMillan, one of the original Temecula viticultural area petitioners, supporting the name change. Mr. McMillan sent his letter directly to ATF, and a copy of was included with the Association's petition. According to his letter, Mr. McMillan recalls that the original Temecula petitioners desired to use a true, historical name for their proposed viticultural area and not the more recent commercial name of “Rancho California,” which was originally favored by some growers in the area. In his letter, Mr. McMillan agrees with the Association's contention that the names Temecula and Temecula Valley were often used interchangeably at the time of the original petition.

ATF requests comments from all interested persons. Comments received on or before the closing date will be carefully considered. Comments received after that date will be given the same consideration if it is practical to do so. However, assurance of consideration can only be given to comments received on or before the closing date.

ATF will not recognize any submitted material as confidential and comments may be disclosed to the public. Any material which the commenter considers to be confidential or inappropriate for disclosure to the public should not be included in the comments. The name of the person submitting a comment is not exempt from disclosure.

By U.S. Mail: Written comments may be mailed to ATF at the address listed in the ADDRESSES section above.

By Fax: Comments may be submitted by facsimile transmission to (202) 927-8525, provided the comments: (1) Are legible; (2) are 8 1/2 ″ x 11″ in size; (3) contain a written signature; and (4) are five pages or less in length. This limitation is necessary to assure reasonable access to the equipment. Comments sent by fax in excess of five pages will not be accepted. Receipt of fax transmittals will not be acknowledged. Facsimile transmitted comments will be treated as originals.

By E-mail: Comments may be submitted by e-mail to nprm@atfhq/treas.gov. E-mail comments must: (1) Contain your name, mailing address, and e-mail address; (2) reference this notice number; and (3) be legible when printed on 8 1/2 x 11 inch size paper. We will not acknowledge the receipt of e-mail. We will treat comments submitted by e-mail as originals.

Comments may also be submitted using the comment form provided with the online copy of this proposed rule on the ATF Internet Web site at http://www.atf.treas.gov/alcohol/rules/index.htm.

Public Hearing: Any person who desires an opportunity to comment orally at a public hearing on the proposed regulation should submit his or her request, in writing, to the Director within the 60-day comment period. The Director, however, reserves the right to determine, in light of all circumstances, whether a public hearing will be held.

You may view copies of the full comments in response to this notice of proposed rulemaking by appointment at the ATF Reference Library, Room 6480, 650 Massachusetts Avenue, NW., Washington, DC 20226, telephone 202-927-7890. You may request paper copies of the full comments (at 20 cents per page) by writing to the ATF Reference Librarian at the address shown above.

For the convenience of the public, ATF will post copies of the comments received in response to this notice on the ATF web site. All comments posted on our web site will show the name of the commenter, but will have street addresses, telephone numbers, and e-mail addresses removed. We may also omit voluminous attachments or material that we do not consider suitable for posting. In all cases, the full comment will be available in the ATF library as noted above. To access online copies of the comments on this rulemaking, visit http://www.atf.treas.gov/, and select “Regulations,” then “Notices of Proposed Rulemaking (Alcohol),” and then this notice. Then click on the “view comments” link.

The provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this notice because no requirement to collect information is proposed.

It is hereby certified that this proposed regulation will not have a significant impact on a substantial number of small entities. The establishment of a viticultural area is neither an endorsement nor approval by ATF of the quality of wine produced in the area, but rather an identification of an area that is distinct from surrounding areas. ATF believes that the establishment of viticultural areas merely allows wineries to more accurately describe the origin of their wines to consumers, and helps consumers identify the wines they purchase. Thus, any benefit derived from the use of a viticultural area name is the result of the proprietor's own efforts and consumer acceptance of wines from that area.

No new requirements are proposed. Accordingly, a regulatory flexibility analysis is not required.

ATF has been determined that this proposed regulation is not a significant regulatory action as defined by Executive Order 12866. Accordingly, this proposal is not subject to the analysis required by this Executive Order.

The principal author of this document is N. A. Sutton, Regulations Division (San Francisco), Bureau of Alcohol, Tobacco and Firearms.

Title 27, Code of Federal Regulations, Part 9, American Viticultural Areas, is proposed to be amended as follows:

Background on Viticultural Areas What Is ATF's Authority To Establish a Viticultural Area?

The Federal Alcohol Administration Act (FAA Act) at 27 U.S.C. 205(e) requires that alcohol beverage labels provide the consumer with adequate information regarding a product's identity and prohibits the use of deceptive information on such labels. The FAA Act also authorizes the Bureau of Alcohol, Tobacco and Firearms (ATF) to issue regulations to carry out the Act's provisions.

Regulations in 27 CFR part 4, Labeling and Advertising of Wine, allow the establishment of definitive viticultural areas. The regulations allow the name of an approved viticultural area to be used as an appellation of origin on wine labels and in wine advertisements. A list of approved viticultural areas is contained in 27 CFR, part 9, American Viticultural Areas.

Section 4.25a(e)(1), Title 27, CFR, defines an American viticultural area as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been delineated in subpart C of part 9. Viticultural features such as soil, climate, elevation, topography, etc., distinguish it from surrounding areas.

Section 4.25a(e)(2), Title 27, CFR, outlines the procedure for proposing an American viticultural area. Any interested person may petition ATF to establish a grape-growing region as a viticultural area. The petition must include:

• Evidence that the name of the proposed viticultural area is locally and/or nationally known as referring to the area specified in the petition;

• Historical or current evidence that the boundaries of the viticultural area are as specified in the petition;

• Evidence relating to the geographical features (climate, soil, elevation physical features, etc.) which distinguish the viticultural features of the proposed area from surrounding areas;

• A description of the specific boundaries of the viticultural area, based on features which can be found on United States Geological Survey (U.S.G.S.) maps of the largest applicable scale; and

• A copy of the appropriate U.S.G.S. map(s) with the boundaries prominently marked.

ATF has received a petition from Ms. Beverly Stamp of Lakewood Vineyards in Watkins Glen, New York proposing to establish the “Seneca Lake” viticultural area. The proposed area includes portions of Schuyler, Yates, Ontario, and Seneca counties in upstate New York and covers approximately 204,600 acres of primarily rural agricultural and forestland. Of that total, 3,756 acres are planted to grapes. There are currently 33 wineries on or near Seneca Lake, one of New York's eleven Finger Lakes. The Cayuga Lake viticultural area lies to the east of proposed area, and both are entirely within the established Finger Lakes viticultural area.

According to the petitioner, Seneca Lake was named after the Seneca people of the Iroquois Nation who lived along its shores hundreds of years ago. Many local places and geographic features are named after the Seneca people. These include, for example, Seneca Lake, Seneca County, the Seneca River, Seneca Castle, Seneca Army Depot, and Seneca Lake State Park. An organization known as the Seneca Lake Winery Association includes many of the proposed area's wineries.

To demonstrate that the proposed area is locally and nationally known as “Seneca Lake,” the petition included several newspaper and magazine articles as evidence of the name's use. In an article from the Rochester, New York Democrat and Chronicle newspaper of November 15, 1999, entitled “Your Land, Our Land: Finger Lakes in the Fast Lane,” Ray Spencer, vice president of operations of Glenora Wine Cellers, stated that many “already refer to Seneca Lake as ‘the Napa Valley of the East.’ ” In the February 1997 issue of Wines & Vines, a California based magazine, author Philip Hiaring described his visit to the Seneca Lake region and his interviews with winery owners and winemakers.

In addition, Seneca Lake is mentioned in “The Oxford Companion to the Wines of North America.” The book states that Seneca Lake is encircled by more than two dozen wineries, is one of the two largest Finger Lakes, and is the deepest with the greatest heat storing capacity, offering the surrounding hillsides the strongest mesoclimatic benefit. While the lake's first winery was built in 1866, the book notes that the 1980s saw a wave of winery openings when the appearance of vinifera varieties brought new momentum to the region's grape-growing industry.

The boundaries of the proposed Seneca Lake viticultural area encompass about 204,600 acres of largely rural land surrounding Seneca Lake, the largest of upstate New York's eleven Finger Lakes. While some of the road names used in the boundary description do not appear on the submitted U.S.G.S. maps, the petitioner provided the locally known names of these roads, as well as a more detailed map of the town of Watkins Glen indicating minor roads.

Using roads and streams, the petitioner drew the proposed Seneca Lake viticultural area's boundaries to contain the vineyards influenced by the lake's climatic effect. In addition, the petition notes, distinct ridges divide Seneca Lake from its closest neighbor, Cayuga Lake, and the nearly 800-foot elevation change within the 7.5 miles between them gives the two lakes their own microclimates.

The “lake effect” weather phenomenon makes the proposed Seneca Lake viticultural area a “unique and superb” wine-growing region, according to the petitioner. The “Oxford Companion to Wine”, published by the Oxford University Press, Inc., New York, describes the lake effect as “the year-round influence on vineyards from nearby large lakes which permits vine-growing in the northeast United States and Ontario in Canada despite their high latitude.”

The “Oxford Companion” also notes that the lake effect's influence on grape vines changes with the seasons. While the lakes provide moisture to the prevailing westerly winds in winter and prevent vines from freezing even in very low temperatures, in spring:

* * * the westerly winds blow across the frozen lake and become cooler. These cooler breezes blowing on the vines retard bud-break until the danger of frost has passed. In summer the lake warms up. By autumn/fall, the westerly winds are warmed as they blow across the lake. The warm breezes on the vines lengthen the growing season (balancing the late start to the growing season) by delaying the first frost.

The petitioner also provided an extract from Richard Figiel's book “Culture in a Glass,” that describes how the lake effect phenomenon affects the Finger Lakes region. Noting that both Seneca and Cayuga Lakes drop well below sea level, Figiel states that since the lakes are “(n)arrow slices of water with relatively little surface area, they tend to maintain a stable temperature throughout the year.” This causes the lakes to act as a large radiator for the surrounding area during the winter months. “Not only do the lakes take the edge off frigid upstate winters, often keeping vineyards 10-15° warmer than locations just a half mile away,” the book adds, “but they also cushion the transitions of spring and fall.” Figiel also points out that the “(d)istinct microclimates along the hillsides rising from the lakeshores make it possible to reliably ripen grapes in a region that is generally too cold for viticulture * * *.”

The petitioner states that it is the size and depth of Seneca Lake that gives the lake its ability to influence the local climate. Seneca Lake is the largest of the Finger Lakes, covering 67.7 square miles, is 35.1 miles long, and is an average of 1.9 miles wide with a shoreline of 75.4 miles. It has a volume of 4.2 trillion gallons with a maximum depth of 635 feet. Below 150 feet, the lake's water temperature remains 39 °F (4 °C) year around. Above that depth, the water temperature varies seasonally. While Seneca Lake chills down, the petition adds, it rarely freezes during the winter months. The petition also notes that the Seneca region has the longest frost-free period in the Finger Lakes, with a growing season of about 190 days. In contrast, neighboring Cayuga Lake's growing season is only 165 to 170 days long.

Seneca Lake's latent heat storage capacity alters the local climate to such an extent, the petition states, that grapes can be grown in an area where they otherwise would not survive the cold temperatures of early spring, or the late autumn frosts. Together with the good air drainage offered by the slopes leading to its shore, the lake's water temperature provides cool breezes in the spring, preventing early bud break in the fruit. In the fall, the lake's warmth delays early frosts, and in the winter it raises temperatures so that bud damage is lessened.

It is this ability to protect a crop from extreme temperatures, during both the growing and dormant seasons that makes the proposed Seneca Lake viticultural area distinct from surrounding areas, according to the petitioner. This lake effect is strongest within about one-half mile of Seneca Lake. For this reason, the more tender vinifera varieties are planted within this zone, while hardier American varieties and hybrids can be planted higher on the slopes. The petitioner adds that smaller lakes, even those the size of Cayuga Lake, do not have the same level of latent heat capacity and, therefore, do not modify the local climate to the same extent as Seneca Lake.

ATF has determined that this proposed regulation is not a significant regulatory action as defined in Executive Order 12866. Accordingly, this proposal is not subject to the analysis required by this Executive Order.

ATF certifies that the proposed regulations will not have a significant economic impact on a substantial number of small entities. The establishment of a viticultural area is neither an endorsement nor approval by ATF of the quality of wine produced in the area, but rather an identification of a grape-growing area that is distinct from surrounding areas. ATF believes that the establishment of viticultural areas merely allows wineries to more accurately describe the origin of their wines to consumers, and helps consumers identify the wines they purchase. Thus, any benefit derived from the use of a viticultural area name is the result of the proprietor's own efforts and consumer acceptance of wines from that area.

No new requirements are proposed. Accordingly, a regulatory flexibility analysis is not required.

The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this notice of proposed rulemaking because no new or revised record keeping or reporting requirements is proposed.

ATF requests comments from all interested parties. In addition, ATF specifically requests comments on the clarity of this proposed rule and how it may be made easier to understand. Comments received on or before the closing date will be carefully considered. Comments received after that date will be given the same consideration if it is practical to do so. However, assurance of consideration can only be given to comments received on or before the closing date.

During the comment period, any person may request an opportunity to present oral testimony at a public hearing. However, the Director reserves the right to determine, in light of all circumstances, whether a public hearing will be held.

Copies of the petition, the proposed regulations, the appropriate maps, and any written comments received will be available for public inspection by appointment at the ATF Library, Room 6480, 650 Massachusetts Avenue, NW., Washington, DC 20226. To make an appointment, telephone 202-927-7890. You may request copies (at 20 cents per page) of the comments received in response to this notice by writing to the ATF Reference Librarian at the address shown above.

For the convenience of the public, ATF will post comments received in response to this notice on the ATF web site. All comments posted on our web site will show the name of the commenter, but will have street addresses, telephone numbers and e-mail addresses removed. We may also omit voluminous attachments or material that we do not consider suitable for posting. In all cases, the full comment will be available in the ATF Library as noted above. To access online copies of the comments on this rulemaking, visit http://www.atf.treas.gov/ , and select “Regulations,” then “Proposed rules (alcohol)” and this notice. Click on the “view comments” link.

ATF will not recognize any comment as confidential. All comments and materials may be disclosed to the public. If you consider your material to be confidential or inappropriate for disclosure to the public, you should not include it in your comments. We may also disclose the name of any person who submits a comment.

You may submit comments by facsimile transmission to (202) 927-8525. Facsimile comments must:

• Be legible.

• Reference this notice number.

• Contain a legible written signature.

• Be on not more than five 8 1/2 by 11” pages.

We will not acknowledge receipt of facsimile transmissions. We will treat facsimile transmissions as originals.

You may submit comments by e-mail by sending the comments to nprm@atfhq.atf.treas.gov . You must follow these instructions. E-mail comments must:

• Contain your name, mailing address, and e-mail address.

• Reference this notice number.

• Be legible when printed.

We will not acknowledge receipt of e-mail. We will treat comments submitted by e-mail as originals.

You may also submit comments using the comment form provided with the online copy of the proposed rule on the ATF Internet web site at http://www.atf.treas.gov .

The principal author of this document is Kristy Colón, Regulations Division, Bureau of Alcohol, Tobacco and Firearms.

Title 27, Code of Federal Regulations, Part 9, American Viticultural Areas, is proposed to be amended as follows:

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD08-02-023), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know that they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. You may submit a request for a public meeting by writing to the Commander, Eighth Coast Guard District, Bridge Administration Branch at the address under ADDRESSES explaining why a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place to be announced by notice in the Federal Register .

The existing drawbridge operating regulations at 33 CFR 117.455 require the draw of the bridge across the Houma Navigation Canal at S661, mile 36.0 at Houma, to open on signal, except that the draw need not be opened for the passage of vessels Monday through Friday except holidays from 7 a.m. to 8:30 a.m. and 4:30 p.m. to 6 p.m.

The bridge owner requested a modification to the morning closure periods to allow the bridge to remain closed to navigation from 6:30 a.m. until 8:30 a.m. vice 7 a.m. to 8:30 a.m. Approximately 13,000 vehicles cross the bridge daily, 10% of which cross the bridge during the requested closure times. The adjustment to the morning closure time reflects a change to expand the closure period to align with the heaviest commuter traffic. The bridge averages 953 openings a month. It is estimated that 3 tows a month will be delayed by the additional 30-minute morning closure request. In a 17-day review period in July 2002, two tows requiring bridge openings were delayed during the requested additional time period. The average length of the bridge opening is less than ten minutes, delaying an average of 60 vehicles for each opening. Based upon our review of the documentation provided by the bridge owner, the closure of an additional 30 minutes in the morning will have a minimal effect on vessels wishing to transit the waterway.

In its current form, § 117.455 refers to the affected highway as “S661.” This proposed rule will change the name of the affected highway to its correct name, “SR661.”

The proposed rule would modify the existing regulation in 33 CFR 117.455 to facilitate the movement of high volumes of vehicular traffic across the bridge during peak traffic hours. The change will now allow the State Route 661 bridge to remain closed to navigation from 6:30 a.m. to 8:30 a.m. vice the presently published times of 7 a.m. to 8:30 a.m. The regulation will also identify the roadway across the bridge as SR661.

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

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

This proposed rule allows vessels ample opportunity to transit this waterway with proper notification before and after the peak vehicular traffic periods. According to the vehicle traffic surveys, the public at large is better served by closure times between 6:30 a.m. and 8:30 a.m.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. The proposed rule would affect the following entities, some of which might be small entities: the owners and operators of vessels needing to transit the bridge from 6:30 a.m. to 7 a.m. on weekdays. From traffic and vessel counts it is estimated that only an additional 3 tows per month will be delayed by the thirty-minute extension to the morning closure. This is not considered to have a significant impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this proposed rule would economically affect it.

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 this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the Bridge Administration Branch, Eighth Coast Guard District at the address above.

This proposed rule would call 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 cost of compliance on them. We have analyzed this proposed rule under Executive Order 13132 and have determined that this proposed 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

This proposed 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 proposed rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

We have analyzed this proposed 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 considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph 32(e), of Commandant Instruction M16475.lD, this proposed rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES .

For the reasons set out in the preamble, the Coast Guard proposes to amend part 117 of title 33, Code of Federal Regulations, as follows:

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD08-02-022), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know that they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. You may submit a request for a public meeting by writing to the Commander, Eighth Coast Guard District, Bridge Administration Branch at the address under ADDRESSES explaining why a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place to be announced by notice in the Federal Register .

The existing drawbridge operating regulations at 33 CFR 117.451(c) requires the draw of the Bayou Dularge bridge, mile 59.9, at Houma, to open on signal; except that, the draw need not be opened for the passage of vessels Monday through Friday except holidays from 6:45 a.m. to 8:30 a.m. and from 4:30 p.m. to 6 p.m.

The bridge owner requested a modification to the morning closure period to allow the bridge to remain closed to navigation from 6:30 a.m. until 8:30 a.m. vice 6:45 a.m. to 8:30 a.m. Approximately 21,000 vehicles cross the bridge daily, 10% of which cross the bridge during the requested closure times. The adjustment to the morning closure time reflects a change to align the closure periods with the times of the heaviest commuter traffic. The bridge averages 325 openings a month. The requested 15-minute closure increase in the morning will delay approximately 7 additional tows a month. In a 17-day review period in July 2002, four tows requiring bridge openings were delayed during the requested additional time period. The average length of a bridge opening is less than five minutes, delaying an average of 90 vehicles per opening. Based upon our review of the documentation provided by the bridge owner, the closure of an additional 15 minutes in the morning will have a minimal affect on vessels wishing to transit the waterway.

Additionally, by this rulemaking, the Coast Guard plans to reinsert the word “Monday” into the rule. The word was omitted in previous editions of the Code of Federal Regulations. This proposed rulemaking will clarify the days when the special operation regulation is in effect.

The proposed rule would modify the existing regulation in 33 CFR 117.451(c) to facilitate the movement of high volumes of vehicular traffic across the bridge during peak traffic hours. The change would allow the Bayou Dularge bridge to remain closed to navigation from 6:30 a.m. to 8:30 a.m. vice the presently published times of 6:45 a.m. to 8:30 a.m. The regulation will also state that it is in effect Monday through Friday except holidays.

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

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

This proposed rule allows vessels ample opportunity to transit this waterway with proper notification before and after the peak vehicular traffic periods. According to the vehicle traffic surveys, the public at large is better served by closure times between 6:30 a.m. and 8:30 a.m.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. The proposed rule would affect the following entities, some of which might be small entities: the owners and operators of vessels needing to transit the bridge from 6:30 a.m. to 6:45 a.m. on weekdays. From traffic and vessel counts it is estimated that only an additional 7 tows per month will be delayed by the fifteen-minute extension to the morning closure. This is not considered to have a significant impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this proposed rule would economically affect it.

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 this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the Bridge Administration Branch, Eighth Coast Guard District at the address above.

This proposed rule would call 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 cost of compliance on them. We have analyzed this proposed rule under Executive Order 13132 and have determined that this proposed 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

This proposed 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 proposed rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

We have analyzed this proposed 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 considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph 32(e), of Commandant Instruction M16475.lD, this proposed rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES .

For the reasons set out in the preamble, the Coast Guard proposes to amend part 117 of title 33, Code of Federal Regulations, as follows:

This notice provides an analysis of the one-hour ozone attainment demonstration SIP submitted by the New Hampshire Department of Environmental Services (New Hampshire DES) for the New Hampshire portion of the Boston-Lawrence-Worcester MA-NH serious nonattainment area. Table of Contents:

The Clean Air Act requires EPA to establish national ambient air quality standards (NAAQS or standards) for certain widespread pollutants that cause or contribute to air pollution that is reasonably anticipated to endanger public health or welfare. CAA sections 108 and 109. In 1979, EPA promulgated the one-hour 0.12 parts per million (ppm) ground-level ozone standard. 44 FR 8202 (February 8, 1979). Ground-level ozone is not emitted directly by sources. Rather, emissions of nitrogen oxides (NO X ) and volatile organic compounds (VOCs) react in the presence of sunlight to form ground-level ozone. NO X and VOC are referred to as precursors of ozone.

An area exceeds the one-hour ozone standard each time an ambient air quality monitor records a one-hour average ozone concentration of 0.125 ppm or higher. 1 An area is violating the standard if, over a consecutive three-year period, more than three exceedances are expected to occur at any one monitor. The area's 4th highest ozone reading at a single monitor is its design value. The CAA, as amended in 1990, required EPA to designate as nonattainment any area that was violating the one-hour ozone standard, generally based on air quality monitoring data from the three-year period from 1987-1989. CAA section 107(d)(4); 56 FR 56694 (November 6, 1991). The CAA further classified these areas, based on the area's design value, as marginal, moderate, serious, severe or extreme. CAA section 181(a). Marginal areas were suffering the least significant air pollution problems while the areas classified as severe and extreme had the most significant air pollution problems.

The control requirements and dates by which attainment needs to be achieved vary with the area's classification. Marginal areas are subject to the fewest mandated control requirements and have the earliest attainment date. Severe and extreme areas are subject to more stringent planning requirements but are provided more time to attain the standard. Serious areas were required to attain the one-hour ozone standard by November 15, 1999 and severe areas are required to attain by November 15, 2005 or November 15, 2007. The Boston-Lawrence-Worcester, MA-NH ozone nonattainment area is classified as serious and its attainment date is November 15, 1999.

Under section 182(c)(2) of the CAA, serious areas were required to submit by November 15, 1994 demonstrations of how they would attain the one-hour ozone standard and how they would achieve reductions in VOC emissions of 9 percent for each three-year period until the attainment year. In some cases, NO X emission reductions can be substituted for the required VOC emission reductions.

In general, an attainment demonstration SIP includes a modeling analysis component showing how the area will achieve the standard by its attainment date and the control measures necessary to achieve those reductions. Another component of the attainment demonstration SIP is a motor vehicle emissions budget for transportation conformity purposes. Transportation conformity is a process for ensuring that states consider the effects of emissions associated with new or improved federally-funded roadways and transit on attainment of the standard. As described in section 176(c)(2)(A) of the CAA, attainment demonstrations necessarily include the estimates of motor vehicle emissions that are consistent with attainment, which then act as a budget or ceiling for the purposes of determining whether federally-supported transportation plans and projects conform to the attainment demonstration SIP.

The Boston-Lawrence-Worcester, MA-NH ozone nonattainment area is a multi-state nonattainment area consisting of a small portion of southern New Hampshire and the entire eastern half of Massachusetts. In New Hampshire, the nonattainment area consists of 28 individual cities and towns in portions of Hillsborough and Rockingham counties. In Hillsborough County, the individual cities and towns included in the nonattainment area are: Amherst Town, Brookline Town, Hollis Town, Hudson Town, Litchfield Town, Merrimack Town, Milford Town, Mont Vernon Town, Nashua City, Pelham Town, and Wilton Town. In Rockingham, the individual towns included in the nonattainment area are: Atkinson Town, Brentwood Town, Danville Town, Derry Town, E. Kingston Town, Hampstead Town, Hampton Falls Town, Kensington Town, Kingston Town, Londonderry Town, Newton Town, Plaistow Town, Salem Town, Sandown Town, Seabrook Town, South Hampton Town, and Windham Town. In Massachusetts, the nonattainment area includes a much larger area, consisting of 10 counties in their entirety ( i.e. , Barnstable, Bristol, Dukes, Essex, Middlesex, Nantucket, Norfolk, Plymouth, Suffolk, and Worcester counties). Based on 1999 emission estimates by the New Hampshire DES and the Massachusetts Department of Environmental Protection (DEP), the New Hampshire portion of the nonattainment area accounted for only 6 percent of the total VOC emissions in the nonattainment area, and only 4 percent of the total NO X emissions.

Historically and throughout most of the 1990's, ozone monitors throughout the Boston-Lawrence-Worcester, MA-NH nonattainment area violated the one-hour ozone standard. Directly downwind of the Boston-Lawrence-Worcester, MA-NH nonattainment area, there were also a number of other nonattainment areas violating the one-hour ozone standard during the 1990's in other parts of New Hampshire and in portions of southern Maine. On June 9, 1999, however, EPA determined that the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area had attained the 1-hour ozone standard (64 FR 30911). 2 This determination was based on data collected from 1996-1998. On June 9, 1999, EPA also determined that the Portsmouth-Dover-Rochester, New Hampshire ozone nonattainment area and the Portland, Maine ozone nonattainment area had also attained the 1-hour ozone standard based on data collected from 1996-1998. See 64 FR 30911. At the time of these determinations of attainment, there were no areas in any portion of New Hampshire or Maine that violated the one-hour ozone standard.

The Boston-Lawrence-Worcester, MA-NH nonattainment area continued to have air quality meeting the one-hour ozone standard in 1999 (based on data from 1997-1999) and in 2000 (based on data from 1998-2000). Based on data collected in 1999-2001, however, the Boston-Lawrence-Worcester, MA-NH area now has air quality violating the one-hour ozone standard. The violating monitors are in the southern portion of the multi-state nonattainment area in Fairhaven and Truro, Massachusetts, which are at least 75 miles from the Massachusetts-New Hampshire state border. The other nine ozone air quality monitors in the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area ( i.e, in the Massachusetts cities and towns of Easton, Stow, Boston (two sites), Lynn, Lawrence, Worcester, and Newbury, and in Nashua, New Hampshire) continue to show attainment of the one-hour ozone NAAQS, based on 1999-2001 data. Preliminary (not quality assured) ozone data readings from the monitors for the area from the summer of 2002 show only the Truro monitor registering a violation of the one-hour ozone NAAQS for the three-year period 2000-2002.

Notwithstanding significant efforts by the states, in 1995 EPA recognized that many states in the eastern half of the United States could not meet the November 1994 time frame for submitting an attainment demonstration SIP under the Act because emissions of NO X and VOCs in upwind states (and the ozone formed by these emissions) affected these nonattainment areas and the full impact of this effect had not yet been determined. This phenomenon is called ozone transport.

On March 2, 1995, Mary D. Nichols, EPA's then Assistant Administrator for Air and Radiation, issued a memorandum to EPA's Regional Administrators acknowledging the efforts made by states but noting the remaining difficulties in making attainment demonstration SIP submittals. 3 Recognizing the problems created by ozone transport, the March 2, 1995 memorandum called for a collaborative process among the states in the eastern half of the country to evaluate and address transport of ozone and its precursors. This memorandum led to the formation of the Ozone Transport Assessment Group (OTAG)  4 and provided for the states to submit the attainment demonstration SIPs based on the expected time frames for OTAG to complete its evaluation of ozone transport.

In June 1997, OTAG concluded and provided EPA with recommendations regarding ozone transport. The OTAG generally concluded that transport of ozone and the precursor NO X is significant and should be reduced regionally to enable states in the eastern half of the country to attain the ozone NAAQS.

In recognition of the length of the OTAG process, in a December 29, 1997 memorandum, Richard Wilson, EPA's then Acting Assistant Administrator for Air and Radiation, provided until April 1998 for states to submit the following elements of their attainment demonstration SIPs for serious and severe nonattainment areas: (1) Evidence that the applicable control measures in subpart 2 of part D of title I of the CAA were adopted and implemented or were on an expeditious course to being adopted and implemented; (2) a list of measures needed to meet the remaining rate-of-progress (ROP) emissions reduction requirement and to reach attainment; (3) for severe areas only, a commitment to adopt and submit target calculations for post-1999 ROP and the control measures necessary for attainment and ROP plans through the attainment year by the end of 2000; (4) a commitment to implement the SIP control programs in a timely manner and to meet ROP emissions reductions and attainment; and (5) evidence of a public hearing on the state submittal. 5 This submission is sometimes referred to as the Phase 2 submission. Motor vehicle emissions budgets can be established based on a commitment to adopt the measures needed for attainment and identification of the measures needed. Thus, state submissions due in April 1998 under the Wilson policy should have included motor vehicle emissions budgets.

Building upon the OTAG recommendations and technical analyses, in November 1997, EPA proposed action addressing the ozone transport problem. In its proposal, EPA found that current SIPs in 22 states and the District of Columbia (23 jurisdictions) were insufficient to provide for attainment and maintenance of the one-hour ozone standard because they did not regulate NO X emissions that significantly contribute to ozone transport. 62 FR 60318 (November 7, 1997). The EPA finalized that rule in September 1998, calling on the 23 jurisdictions to revise their SIPs to require NO X emissions reductions within the state to a level consistent with a NO X emissions budget identified in the final rule. 63 FR 57356 (October 27, 1998). This final rule is commonly referred to as the NO X SIP Call.

On June 30, 1998, New Hampshire DES submitted an ozone attainment demonstration for the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area as a revision to its SIP. On June 9, 1999, however, EPA determined that the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area had attained the 1-hour ozone standard (64 FR 30911). This determination was based on data collected from 1996-1998. Consistent with then current EPA policy, 6 since the Boston-Lawrence-Worcester, MA-NH area had attained the standard by November 15, 1999, its statutory attainment date, EPA took no action on the New Hampshire attainment demonstration SIP submittal for the Boston-Lawrence-Worcester, MA-NH area. The Boston-Lawrence-Worcester, MA-NH nonattainment area continued to have air quality meeting the one-hour ozone standard through the summer of 2000.

As mentioned above, based on data collected in 1999-2001, the Boston-Lawrence-Worcester, MA-NH area now has air quality violating the one-hour ozone standard. Thus, this nonattainment area is once again required to have an approved attainment demonstration and 9% ROP plan with respect to section 182(c)(2) of the CAA. Today, in this proposed rule, EPA is proposing action on the attainment demonstration SIP submitted by the New Hampshire DES on June 30, 1998 for the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH area. EPA approved the state's 9% ROP plan for the area via a direct final rulemaking on April 16, 2002 (67 FR 18547). In an earlier action, EPA proposed approval of the attainment demonstration for the Massachusetts portion of this same nonattainment area. In that proposed action, EPA proposed approval of an attainment date of November 15, 2007 for the Boston-Lawrence-Worcester, MA-NH nonattainment area. EPA plans to take action separately on contingency measures for both the New Hampshire and Massachusetts portions of the Boston-Lawrence-Worcester, MA-NH nonattainment area.

The statutory attainment date for the Boston-Lawrence-Worcester, MA-NH nonattainment area is November 15, 1999. The area attained the standard as of its attainment date, but then subsequently experienced a violation. The CAA does not expressly address the appropriate attainment date for an area that attains the standard by its attainment date but then subsequently violates the standard nor does it address the planning requirements that apply to such an area. (CAA sections 179(c) and (d) and 181(b)(2) establish requirements only for those areas that EPA determines do not attain the standard by their attainment date.) With respect to the attainment date, both subparts 1 and 2 of Part D of the Act specify outside dates for attainment and provide that attainment must be “as expeditiously as practicable” within those outside dates. CAA sections 172(a)(2) and 181(a)(1). With respect to control obligations, EPA generally attempts first to work with the State to submit a revised SIP and, where necessary, would issue a SIP Call pursuant to section 110(k)(5) if additional controls were needed. See e.g. , 65 FR 64352 (Oct. 27, 2000). Here, Massachusetts has already submitted an attainment demonstration and has indicated that the demonstration provides for attainment, by November 15, 2007, which is as expeditiously as practicable, within the multi-state area. We review New Hampshire's 1998 attainment demonstration SIP submission in conjunction with the more recent attainment demonstration SIP submitted by Massachusetts in the following sections.

The EPA provides that states may rely on a modeled attainment demonstration supplemented with additional evidence to demonstrate attainment. 7 In order to have a complete modeling demonstration submission, states should have submitted the required modeling analysis and identified any additional evidence that EPA should consider in evaluating whether the area will attain the standard.

For purposes of demonstrating attainment, section 182(c) of the CAA requires serious areas to use photochemical grid modeling or an analytical method EPA determines to be as effective. 8 The photochemical grid model is set up using meteorological conditions conducive to the formation of ozone. Emissions for a base year are used to evaluate the model's ability to reproduce actual monitored air quality values and to predict air quality changes in the attainment year due to the emission changes which include growth up to and controls implemented by the attainment year. A modeling domain is chosen that encompasses the nonattainment area. Attainment is demonstrated when all predicted concentrations inside the modeling domain are at or below the NAAQS or at an acceptable upper limit above the NAAQS consistent with conditions specified by EPA's guidance. When the predicted concentrations are above the NAAQS, an optional Weight of Evidence (WOE) determination which incorporates, but is not limited to, other analyses, such as air quality and emissions trends, may be used to address uncertainty inherent in the application of photochemical grid models.

The EPA guidance identifies the features of a modeling analysis that are essential to obtain credible results. First, the state must develop and implement a modeling protocol. The modeling protocol describes the methods and procedures to be used in conducting the modeling analyses and provides for policy oversight and technical review by individuals responsible for developing or assessing the attainment demonstration (state and local agencies, EPA Regional offices, the regulated community, and public interest groups). Second, for purposes of developing the information to put into the model, the state must select air pollution days, i.e., days in the past with poor air quality, that are representative of the ozone pollution problem for the nonattainment area. Third, the state needs to identify the appropriate dimensions of the area to be modeled, i.e., the domain size. The domain should be larger than the designated nonattainment area to reduce uncertainty in the boundary conditions and should include large upwind sources just outside the nonattainment area. In general, the domain is considered the local area where control measures are most beneficial to bring the area into attainment. Fourth, the state needs to determine the grid resolution. The horizontal and vertical resolutions in the model affect the dispersion and transport of emission plumes. Artificially large grid cells (too few vertical layers and horizontal grids) may dilute concentrations and may not properly consider impacts of complex terrain, complex meteorology, and land/water interfaces. Fifth, the state needs to generate meteorological data that describe atmospheric conditions and emissions inputs. Finally, the state needs to verify that the model is properly simulating the chemistry and atmospheric conditions through diagnostic analyses and model performance tests. Once these steps are satisfactorily completed, the model is ready to be used to generate air quality estimates to support an attainment demonstration.

The modeled attainment test compares model-predicted one-hour daily maximum concentrations in all grid cells for the attainment year to the level of the NAAQS. A predicted concentration above 0.124 ppm ozone indicates that the area is expected to exceed the standard in the attainment year and a prediction at or below 0.124 ppm indicates that the area is expected to attain the standard. This type of test is often referred to as an exceedance test. The EPA's guidance recommends that states use either of two modeled attainment or exceedance tests for the one-hour ozone NAAQS: a deterministic test or a statistical test.

The deterministic test requires the state to compare predicted one-hour daily maximum ozone concentrations for each modeled day  9 to the attainment level of 0.124 ppm. If none of the predictions exceed 0.124 ppm, the test is passed.

The statistical test takes into account the fact that the form of the one-hour ozone standard allows exceedances. If, over a three-year period, the area has an average of one or fewer exceedances per year, the area is not violating the standard. Thus, if the state models a very extreme day, the statistical test provides that a prediction above 0.124 ppm up to a certain upper limit may be consistent with attainment of the standard. (The form of the one-hour ozone standard allows for up to three readings above the standard over a three-year period before an area is considered to be in violation.)

The acceptable upper limit above 0.124 ppm is determined by examining the size of exceedances at monitoring sites which meet the one-hour NAAQS. For example, a monitoring site for which the four highest one-hour average concentrations over a three-year period are 0.136 ppm, 0.130 ppm, 0.128 ppm and 0.122 ppm is attaining the standard. To identify an acceptable upper limit, the statistical likelihood of observing ozone air quality exceedances of the standard of various concentrations is equated to the severity of the modeled day. The upper limit generally represents the maximum ozone concentration observed at a location on a single day and it would be the only reading above the standard that would be expected to occur no more than an average of once a year over a three-year period. Therefore, if the maximum ozone concentration predicted by the model is below the acceptable upper limit, in this case 0.136 ppm, then EPA might conclude that the modeled attainment test is passed. Generally, exceedances well above 0.124 ppm are very unusual at monitoring sites meeting the NAAQS. Thus, these upper limits are rarely substantially higher than the attainment level of 0.124 ppm.

When the modeling does not conclusively demonstrate attainment, additional analyses may be presented to help determine whether the area will attain the standard. As with other predictive tools, there are inherent uncertainties associated with modeling and its results. For example, there are uncertainties in some of the modeling inputs, such as the meteorological and emissions data bases for individual days and in the methodology used to assess the severity of an exceedance at individual sites. The EPA's guidance recognizes these limitations, and provides a means for considering other evidence to help assess whether attainment of the NAAQS is likely. The process by which this is done is called a weight of evidence (WOE) determination.

Under a WOE determination, the state can rely on and EPA will consider factors such as: other modeled attainment tests, e.g. , a rollback analysis; other modeled outputs, e.g. , changes in the predicted frequency and pervasiveness of exceedances and predicted changes in the design value; actual observed air quality trends; estimated emissions trends; analyses of air quality monitored data; the responsiveness of the model predictions to further controls; and, whether there are additional control measures that are or will be approved into the SIP but were not included in the modeling analysis. This list is not an exclusive list of factors that may be considered and these factors could vary from case to case. The EPA's guidance contains no limit on how close a modeled attainment test must be to passing to conclude that other evidence besides an attainment test is sufficiently compelling to suggest attainment. However, the further a modeled attainment test is from being passed, the more compelling the WOE needs to be.

The EPA's 1996 modeling guidance also recognizes a need to perform a mid-course review as a means for addressing uncertainty in the modeling results. Because of the uncertainty in long term projections, EPA believes a viable attainment demonstration that relies on WOE needs to contain provisions for periodic review of monitoring, emissions, and modeling data to assess the extent to which refinements to emission control measures are needed. The mid-course review is discussed below.

In addition to the modeling analysis and WOE support demonstrating attainment, the EPA has identified the following key elements which generally must be present in order for EPA to approve the one-hour attainment demonstration SIPs. These elements are: control measures required by the CAA that provide reductions towards attainment and measures relied on in the modeled attainment demonstration SIP; NO X reductions affecting boundary conditions; motor vehicle emissions budgets; any additional measures needed for attainment; 10 and a Mid-Course Review (MCR).

The states should have adopted the control measures already required under the CAA for the area classification. In addition, a state may have included control measures in its attainment strategy that are in addition to measures required in the CAA. For purposes of fully approving the state's SIP, the state needs to adopt and submit all VOC and NO X controls within the local modeling domain that were relied on for purposes of the modeled attainment demonstration.

The information in Table 1 is a summary of the CAA requirements that should be met for a serious area for the one-hour ozone NAAQS. These requirements are specified in section 182 of the CAA. EPA must have taken final action approving all measures relied on for attainment, including the required ROP control measures and target calculations, before EPA can issue a final full approval of the attainment demonstration as meeting CAA section 182(c)(2). This was done for all measures relied on in the attainment demonstration for New Hampshire.

Adopted and submitted rules for all previously required CAA mandated measures for the specific area classification that are being relied on in the attainment demonstration are required. This also includes measures that may not be required for the area classification but that the state relied on in the SIP submission for attainment. As explained in Table 2, New Hampshire has submitted SIPs for all of the measures they are relying on for attainment.

On October 27, 1998 , EPA completed rulemaking on the NO X SIP call, which required states to address transport of NO X and ozone to other states. To address transport, the NO X SIP call established emissions budgets for NO X that 23 jurisdictions were required to show they would meet by 2007 through enforceable SIP measures adopted and submitted by September 30, 1999. The NO X SIP call is intended to reduce emissions in upwind states that significantly contribute to nonattainment problems. The EPA did not identify specific sources that the states must regulate nor did EPA limit the states' choices regarding where to achieve the emission reductions. The courts have largely upheld EPA's NO X SIP Call, Michigan v. United States Env. Prot. Agency , 213 F.3d 663 (D.C. Cir. 2000), cert. denied, U.S., 121 S.Ct. 1225, 149 L.Ed. 135 (2001); Appalachian Power v. EPA , 251 F.3d 1026 (D.C. Cir. 2001). Although a few issues were vacated or remanded to EPA for further consideration, states subject to the NO X SIP call have largely adopted the controls necessary to meet the budgets set for them under the NO X SIP call rule. The controls to achieve these reductions should be in place by May 2004.

New Hampshire used the best available NO X SIP Call information in its modeling analysis. The modeling analysis is discussed in more detail below. New Hampshire itself, however, was not one of the states required to adopt enforceable SIP measures to meet EPA's NO X SIP call. New Hampshire has adopted regulations consistent with the NO X Memorandum of Understanding (NO X MOU) adopted by the Ozone Transport Commission on September 27, 1994. When the NO X MOU was developed, New Hampshire voluntarily assigned their largest utility NO X source, the Merrimack Station, to the zone where reductions of 65 percent in 1999 and 75 percent in 2003 are required. This measure is significant because otherwise there would be no requirements for this plant under the NO X MOU until 2003, at which time a 55 percent reduction is required. EPA approved the regulation New Hampshire adopted pursuant to the NO X MOU on June 2, 1999 (64 FR 29567).

The EPA believes that attainment demonstration SIPs must necessarily estimate the level of motor vehicle emissions, which when considered with emissions from all other sources (stationary, area and other mobile source), is consistent with attainment. The estimate of motor vehicle emissions is used to determine the conformity of transportation plans and programs to the SIP, as described by CAA section 176(c)(2)(A). For transportation conformity purposes, the estimate of motor vehicle emissions is known as the motor vehicle emissions budget. The EPA believes that appropriately identified motor vehicle emissions budgets are a necessary part of an attainment demonstration SIP. A SIP cannot effectively demonstrate attainment unless it identifies the level of motor vehicle emissions that can be produced while still demonstrating attainment.

A mid-course review (MCR), which generally is performed midway between approval of the attainment demonstration and the attainment date, is a reassessment of modeling analyses and more recent monitored data to determine if a prescribed control strategy is resulting in emission reductions and air quality improvements needed to attain the ambient air quality standard for ozone as expeditiously as practicable.

Section 172(c)(1) of the CAA requires SIPs to contain all RACM and provide for attainment as expeditiously as practicable. EPA has previously provided guidance interpreting the requirements of 172(c)(1). See 57 FR 13498, 13560. In that guidance, EPA indicated its interpretation that potentially available measures that would not advance the attainment date for an area would not be considered RACM. EPA also indicated in that guidance that states should consider all potentially available measures to determine whether they were reasonably available for implementation in the area, and whether they would advance the attainment date. Further, states should indicate in their SIP submittals whether measures considered were reasonably available or not, and if measures are reasonably available they must be adopted as RACM. Finally, EPA indicated that states could reject measures as not being RACM because they would not advance the attainment date, would cause substantial widespread and long-term adverse impacts, would be economically or technologically infeasible, or would otherwise be inappropriate for local reasons, including costs. The EPA also issued a memorandum re-confirming the principles in the earlier guidance, entitled, “Guidance on the Reasonably Available Control Measures (RACM) Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas.” John S. Seitz, Director, Office of Air Quality Planning and Standards. November 30, 1999. Web site: http://www.epa.gov/ttn/oarpg/t1pgm.html.

When EPA presented its statutory argument in support of its RACM policy to the U.S. Court of Appeals for the DC Circuit in defense of its approval of the Washington, DC, ozone SIP, the DC Circuit found reasonable EPA's interpretation that measures must advance attainment to be RACM. Sierra Club v. EPA , 294 F.3d 155, 162 (D.C.Cir. 2002). Specifically, the Court found that:

This proposal has cited several policy and guidance memoranda. The documents and their location on EPA's web site are listed below; these documents will also be placed in the docket for this proposal action.

1. “Guidance for Improving Weight of Evidence Through Identification of Additional Emission Reductions, Not Modeled.” U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Emissions, Monitoring, and Analysis Division, Air Quality Modeling Group, Research Triangle Park, NC 27711. November 1999. Web site: http://www.epa.gov/ttn/scram (file name: “ADDWOE1H”).

2. “Serious and Severe Ozone Nonattainment Areas: Information on Emissions, Control Measures Adopted or Planned and Other Available Control Measures.” November 24, 1999. OAQPS. U.S. EPA, RTP, NC.

3. Memorandum, “Guidance on Motor Vehicle Emissions Budgets in One-Hour Attainment Demonstrations,” from Merrylin Zaw-Mon, Office of Mobile Sources, to the Air Division Directors, Regions I-VI. November 3, 1999. Web site: http://www.epa.gov/oms/transp/trafconf.html.

4. Memorandum from Lydia Wegman and Merrylin Zaw-Mon to the Air Division Directors, Regions I-VI, “1-Hour Ozone Attainment Demonstrations and Tier 2/Sulfur Rulemaking.” November 8, 1999. Web site: http://www.epa.gov/oms/transp/trafconf.html.

5. Memorandum from John Seitz, Director, Office of Air Quality Planning and Standards, “Mid-Course Review Guidance for the 1-Hour Ozone Nonattainment Areas that Rely on Weight-of-Evidence for Attainment Demonstration.” Web site: http://www.epa.gov/scram001/tt25.htm (file name: “MCRGUIDE”).

6. Memorandum, “Guidance to Clarify EPA's Policy on What Constitutes “As Expeditiously as Practicable” for Purposes of Attaining the One-Hour Ozone Standard for Serious and Severe Ozone Nonattainment Areas.” John S. Seitz, Director, Office of Air Quality Planning and Standards. November 1999. Web site: http://www.epa.gov/ttn/oarpg/t1pgm.html.

7. U.S. EPA, (1991), Guideline for Regulatory Application of the Urban Airshed Model, EPA-450/4-91-013, (July 1991). Web site: http://www.epa.gov/ttn/scram/ (file name: “UAMREG”).

8. U.S. EPA, (1996), Guidance on Use of Modeled Results to Demonstrate Attainment of the Ozone NAAQS, EPA-454/B-95-007, (June 1996). Web site: http://www.epa.gov/ttn/scram/ (file name: “O3TEST”).

9. Memorandum, “Ozone Attainment Demonstrations,” from Mary D. Nichols, issued March 2, 1995. Web site: http://www.epa.gov/ttn/oarpg/t1pgm.html.

10. December 29, 1997 Memorandum from Richard Wilson, Acting Assistant Administrator for Air and Radiation “Guidance for Implementing the 1-Hour Ozone and Pre-Existing PM10 NAAQS.” Web site: http://www.epa.gov/ttn/oarpg/t1pgm.html.

This section provides a review of New Hampshire” submittal and an analysis of how this submittal satisfies the framework discussed in Section V. of this notice.

The attainment demonstration SIP submitted by the New Hampshire DES for the Boston-Lawrence-Worcester, MA-NH area includes a modeling analysis using the CALGRID model which demonstrates attainment using the weight-of-evidence approach. This was submitted on June 30, 1998. The SIP was subject to public notice and comment and a hearing was held on June 1, 1998. Information on how the photochemical grid modeling meets EPA guidance is summarized below.

The one-hour attainment demonstration submitted by New Hampshire is for both the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area as well as the New Hampshire Portsmouth-Dover-Rochester serious area. 12 EPA is only acting on the attainment demonstration as it applies to the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH nonattainment area.

The key element of the attainment demonstration is the photochemical grid point modeling required by the CAA. The New Hampshire attainment demonstration submittal used the CALGRID model which was approved for use by EPA since it was found to be at least as effective as the guideline model which is UAM-IV. The modeling domain for CALGRID extends from southwest Connecticut, northward 340 km to northern Vermont, and eastward to east of Nantucket, Massachusetts. For the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area, the domain meets EPA guidance since it contains adequate areas both upwind and downwind of the nonattainment area. The domain also includes the monitors with the highest measured peak ozone concentrations in Massachusetts and coastal Maine and New Hampshire. Since the original modeling was done for a much larger domain that includes not only all of the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area but also includes all of Rhode Island, most of Connecticut, all of Massachusetts, southern Vermont, and most of southern Maine, the CALGRID model has several “source” areas and several receptor areas. The receptor area of importance for the New Hampshire SIP submittal is the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area. For the purposes of this notice, only model results in this geographic area will be used, unless otherwise noted. As shown below, EPA believes the modeling portion of the attainment demonstration meets EPA guidance.

The model was run for 10 days during four distinct episodes (August 14-17, 1987, June 21-22, 1988, July 7-8, 1988 and July 10-11, 1988). These episodes represent a variety of ozone conducive weather conditions, and also include the three worst ranked ozone episodes (1987 to 1998) for the domain. The episodes selected reflect days with high measured ozone in a variety of areas within the entire domain. This is because, as stated above, the domain covers several nonattainment areas, and in order to model the meteorology that causes high ozone, several different episodes were needed. The model results for the first day of each episode are not used for attainment demonstration purposes, because they are considered “ramp-up days.” Ramp-up days help reduce impacts of initial conditions; after ramp-up days, model results are more reflective of actual emissions being emitted into the atmosphere. Since the first day of each episode was not considered, this leaves six days for strategy assessment. August 16, 1987 was also not used for strategy assessment. This leaves five strategy days: August 15, 1987; August 17, 1987; June 22, 1988; July 8, 1988 and July 11, 1988.

The CALGRID model was run using the CALMET meteorological processor. This processor took actual meteorological data collected by the National Weather Service and the State Air Pollution Agencies and using extrapolation and other analysis techniques provided winds, temperatures and other meteorological parameters at approximately 400 specific grid points for each hour of the episode at up to 14 levels ( i.e. , from the surface to top of the model which is about 5000 feet). CALMET is described in detail in the New Hampshire attainment demonstration, and was approved by EPA for use in the CALGRID modeling system.

The CALGRID model was run with emissions data prepared by EPA Region I and/or a contractor working with EPA Region I. The data were taken from the EPA Aerometric Informational Retrieval System (AIRS) data base in late 1993 and reflect the emission data supplied from the six New England States. The emission data for the small portion of New York state that forms the western edge of the domain was supplied by New York. EPA Region I quality assured all the New England AIRS data, the New York supplied data and all necessary modifications to the data. The data was further processed through the Emissions Preprocessor System (EPS Version 2.0). To more accurately model ozone in New England, day specific emissions were simulated for on-road mobile sources (cars, trucks, buses, etc.), and for large fossil-fueled fired power plants in New England. The base case CALGRID model is consistent with EPA guidance on model performance.

Future emissions were projected to 1999 and 2007 accounting for both emission increases due to industrial growth, population growth and growth in the number of miles traveled by cars, as well as emission reductions due to cleaner gasoline, cleaner cars and controls on industrial pollution. Growth factors were derived using the EPA-approved Bureau of Economic Analysis (BEA) factors and all the emissions were processed using the EPS 2.0 system.

Model runs were also performed for the year 2007. The runs employed 2007 emission estimates inside the New England Domain, along with boundary conditions files reflecting EPA's NO X SIP Call emission estimates in upwind areas. Year 2007 emissions estimates for the states inside the modeling domain reflected EPA's NO X SIP call as well as other federal and state control strategies being implemented by the beginning of the 2007 ozone season. This was accomplished using a two-step process. The first step was to project emissions using growth factors to account for increases or decreases in economic activity by industrial sector. In general, the states projected their emissions using the same growth factors that were used in the OTAG modeling effort. The second step involved applying control factors to source categories that would be regulated by the year 2007. States used a combination of information for control levels: those used for the OTAG modeling effort, and state-specific information relating to the effectiveness of control programs planned or in place. These 2007 emission estimates did not, however, include the Tier 2/Gasoline Sulfur program that was subsequently adopted by EPA on February 10, 2000 (65 FR 6698).

EPA guidance for approval of the modeling aspect of a one-hour ozone attainment demonstration is to use the one-hour ozone grid modeling to apply one of two modeled attainment tests (deterministic or statistical) with optional weight of evidence analyses to supplement the modeled attainment test results when the modeled attainment test is failed. Neither the 1999 or 2007 modeling performed for the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area shows attainment of the one-hour ozone standard (0.124 parts per million) at every grid cell for every hour of every strategy day modeled (August 15, 1987; August 17, 1987; June 22, 1988; July 8, 1988 and July 11, 1988). The maximum predicted base case concentration in the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area for the modeled episodes is 0.230 ppm, for the August 15, 1987 episode. The strategy run for this episode shows a future value in 1999 of 0.186 ppm. For the July 1988 episodes, which are modeled for both 1999 and 2007, New Hampshire looked at the predicted peaks for 1999 and 2007 in the portion of the modeling domain directly influenced by New Hampshire emissions ( i.e. , southern New Hampshire and northeastern Massachusetts). Those peaks remain above the one-hour ozone standard, with a peak concentration of 0.188 ppm in 1999, and 0.177 ppm in 2007. None of the future case strategy modeling runs pass the strict deterministic test. Since the CALGRID model, as run for the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area, does not pass the strict deterministic attainment test, additional weight of evidence analyses are performed. When these additional weight of evidence analyses are considered, attainment is demonstrated for the Boston-Lawrence-Worcester, MA-NH area.

The paramount element in the New Hampshire weight of evidence analysis is the actual air quality monitoring data. The air quality monitoring data show that the area attained the one-hour NAAQS in 1998, based on 1996-1998 ozone data. The area remained in attainment until the summer of 2001. In the summer of 2001, the violations of the standard occurred to the south of New Hampshire. Both trajectory analyses and zero-out model runs show that the source regions for these violations is not New Hampshire, and there is nothing New Hampshire can do to eliminate or reduce these violations. This information is, in itself, enough to pass a weight-of-evidence test. However, for thoroughness, EPA analyzed more information.

Another element in a weight of evidence analysis is use of the model predicted change in ozone to estimate a future air quality design value. This uses the air quality modeling in a relative sense. An analysis of the modeled ozone data, from the CALGRID model used in the New Hampshire attainment demonstration, in conjunction with monitored air quality data shows that, with the planned emission reductions in the two precursor emissions (VOC and NO X ), ground-level ozone concentrations will be below the ambient standard by the 2007 attainment date.

More specifically, EPA used the New Hampshire attainment demonstration in a relative sense to estimate a future design value. EPA compared base case CALGRID runs to future case CALGRID runs to estimate the improvement in ozone air quality levels between the base and future cases. Four strategy days (August 15 and 17 1987; July 8, 1988 and July 11, 1988) 13 are used in this analysis, which compared the improvement in modeled air quality between the base and future modeling cases. The following procedure is applied. First, base case CALGRID runs are examined to discern the maximum one-hour ozone concentration modeled in the area of concern, in this case a large area to the north of Boston. This is the only area which New Hampshire has any chance of affecting during meteorological conditions that result in one-hour ozone exceedances in New England. The four strategy days are all examined. Next, the same area is used to determine future modeled ozone values. The modeled maximum results of the four strategy days are averaged and a reduction factor calculated from the base case to the future case. This reduction factor represent the amount of ozone reduced in this area, as the result of the emission reductions modeled. This reduction factor is used to adjust the average ozone design value for this part of the model domain, as monitored between 1985 and 1990. This monitored design value represent both the base case model years of 1987 and 1988 and also the design values used in 1991 to classify one-hour nonattainment areas.

This analysis shows that air quality design values can reasonably be expected to be reduced below 0.124 ppm based on continued additional reductions within the domain ( e.g. , areas in CT, RI and MA) and reductions upwind, reflected in the future year boundary conditions. Furthermore, the emissions sensitivity modeling performed by the State of New Hampshire indicates that ozone reductions from emission reductions within the New England domain will be greater when boundary conditions become cleaner. So emission reductions from future programs like the Tier 2/sulfur gasoline program and the NO X SIP call will further aid in achieving attainment of the one-hour ozone standard within the nonattainment area.

In addition to this analysis performed by EPA, the New Hampshire DES ozone attainment demonstration also contains a future design value analysis which shows similar results. The New Hampshire DES used a different set of design values than the EPA analysis. The New Hampshire DES analysis used 1995-1997 design values for all of the ozone monitors in New Hampshire. For each monitor, New Hampshire DES calculated the percent improvement in air quality necessary to bring these monitors into attainment of the NAAQS. Then, using the 1999 and 2007 CALGRID modeling runs for the July 8 and July 11 episode, 14 the New Hampshire DES calculated the percent improvement between 1999 and 2007. If this percent model improvement is greater than the improvement needed to achieve the one-hour ozone NAAQS, then the New Hampshire DES contends that attainment is shown. The results of the analysis show that New Hampshire can achieve attainment of the one-hour standard by 2007. This analysis by the New Hampshire DES adds to the weight of evidence.

In summary, the CALGRID modeling submitted by the New Hampshire DES for the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area, when analyzed using the future design value approach, shows attainment of the one-hour NAAQS will be achieved by 2007. This modeling is consistent with EPA guidance. Other information, which provides additional favorable evidence that the Boston-Lawrence-Worcester, MA-NH area, will attain in 2007, are the ambient ozone data trends, a trajectory analysis of exceedance days in the area, and zero-out modeling for New Hampshire.

In total, there are 11 ozone air quality monitors in the Boston-Lawrence-Worcester, MA-NH nonattainment area that have data from 1999-2001, ten in Massachusetts and only one in New Hampshire. They are in the Massachusetts cities and towns of Boston (two sites), Easton, Fairhaven, Lawrence, Lynn, Newbury, Stow, Truro, and Worcester, and Nashua, New Hampshire. All of the monitors show attainment with the one-hour ozone NAAQS for the period 1999-2001, except for the Fairhaven and Truro, MA sites.

The original serious classification of the nonattainment area was based on data from the 1987 through 1989 time period. Since then and including 2001 ozone data, the latest available quality assured ozone data for the area, all 11 sites show a decrease in ozone due to emission reductions, both within Massachusetts and New Hampshire and also upwind. The monitoring sites north of the city of Boston are showing the greatest decline. For example, the one-hour ozone design value for the site in Newbury has dropped from 0.139 ppm in 1989 to 0.112 ppm in 2001, a drop of 19 percent. At the Nashua, NH site, the only site in the nonattainment area in New Hampshire, the design value has dropped from 0.121 ppm in 1989 to 0.103 ppm in 2001, a drop of 15 percent.

If we look at three additional monitors downwind of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area, we see similar downward trends. The three monitors are Rye, NH, Kennebunkport, ME and Cape Elizabeth, ME. At the Rye, NH site, the design value has dropped from 0.156 ppm in 1989 to 0.123 ppm in 2001, a drop of 21 percent. At the Kennebunkport, ME site, the design value has dropped from 0.152 ppm in 1989 to 0.120 ppm in 2001, also, a drop of 21 percent. At the Cape Elizabeth, ME site the design value has dropped from 0.156 ppm in 1989 to 0.111 ppm in 2001, a drop of 29 percent. These substantial decreases in ozone are the result of emission reductions both within the tri-state area of Massachusetts, New Hampshire and Maine, as well as reduction in longer-range transport emissions from upwind areas.

At the two eastern Massachusetts monitors recording violations of the ozone standard in 2001 ( i.e. , Fairhaven and Truro, Massachusetts), the ozone trend is also downward. These two sites are in the extreme southern portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area, and were monitoring attainment until the summer of 2001. At the Fairhaven, MA site, the one-hour ozone design value has dropped from 0.150 ppm in 1989 to 0.125 ppm in 2001, a drop of 17 percent. This site is not in attainment, based on 1999-2001 ozone data. At the Truro, MA site, the one-hour design value has dropped from 0.146 ppm in 1989 to 0.138 ppm in 2001, for a drop of 5 percent. This site, too, is not in attainment, based on 1999-2001 ozone data. Furthermore, preliminary ozone data for the Boston-Lawrence-Worcester, MA-NH area collected during the summer of 2002, a hot summer, show that of the 11 monitors that have recorded ozone data for the past three years, only the Truro, MA monitor has an ozone design value of 0.125 ppm or above. Truro's preliminary design value for 2000-2002 is 0.130 ppm, a drop of 0.008 ppm from 2001. During 2000-2002, the fifth highest value at the Truro site is below the level of the one-hour ozone standard.

Based on the overall downward trend in one-hour ozone concentrations in this area, and because precursor emissions are projected to keep falling, both within the nonattainment area and upwind from it, there is no reason to believe that the downward trend in ozone concentrations will not continue over the near term, based on the projected emission reductions. The future emission reductions will be a result of the following: continued benefits from tighter standards on vehicles due to fleet turnover (California Low Emission Vehicles (CA LEV) in Massachusetts and New York and National Low Emission Vehicles in New Hampshire and other upwind areas); the reductions from large point sources due to the OTC NO X Budget Program and EPA's NO X SIP call; other federal control measures such controls on non-road engines; and the Tier 2 vehicle and low sulfur gasoline program.

The State of New Hampshire performed many emission sensitivity model runs for the four ozone episodes (August 15-17, June 22, July 8 and July 11). A sensitivity run is a model run to determine how the model reacts to certain controlled changes to one of its inputs. An emission sensitivity run shows how the model reacts to changes in anthropogenic ozone precursor emissions (VOC, NO X and carbon monoxide (CO)). For example, how does the CALGRID model respond to a drop in ozone precursor emissions of 50 percent. Some of the most useful, although not achievable in actuality, of these emission sensitivity runs are the so-called zero-out runs, where instead of lowering emissions by 50 or 75 percent, the emissions are completely eliminated from within a certain portion of the domain ( i.e. , the anthropogenic emissions are set to zero). The CALGRID zero-out runs (model runs that assume no anthropogenic emissions in a given area) show that when the anthropogenic ozone precursor emissions (VOC, NO X and Carbon monoxide (CO)) are set to zero in the State of New Hampshire for each of the four episodes modeled, there is no change in predicted ozone in the Cape Cod and southeastern Massachusetts region. The model does show decreases in ozone concentrations along the New Hampshire coast and over inland sections of New Hampshire and Maine, and in northeastern Massachusetts, but no change over Cape Cod and southeastern Massachusetts, the portion of the nonattainment area still recording ozone violations. This is to be expected on these days since the surface winds were primarily blowing from the southwest toward the northeast. But to have this shown definitively by the CALGRID model is important, because it adds to the argument that there is nothing more New Hampshire can do to lower ozone concentrations over southeastern Massachusetts, and nothing New Hampshire can presently do to advance the attainment date of the nonattainment area. To achieve attainment throughout the entire Boston-Lawrence-Worcester, MA-NH ozone nonattainment area, New Hampshire is beholden to emissions reductions from other states.

One question that the zero-out modeling runs discussed above, do not answer is “Does New Hampshire contribute to ozone exceedances on Cape Cod on other days not modeled?” In order to answer this question, EPA looked at all days on which there were exceedances of the one-hour ozone standard on Cape Cod, in southeastern Massachusetts, and/or in Rhode Island, over the last three years when we have quality assured and quality controlled ozone data (1999-2001). This area encompasses the ozone monitoring sites in Truro, MA; Fairhaven, MA; Narragansett, RI; East Providence, RI; and West Greenwich, RI. The exceedance days at these sites during 1999-2001 are as follows: June 7, 1999, July 6, 1999, July 16, 1999, June 10, 2000, June 30, 2001, July 25, 2001, August 7, 2001, and August 9, 2001. In order to determine the most probable source region of emissions for the exceedances measured on these days, EPA performed a trajectory analysis for each day.

A trajectory is the path a parcel of air follows from point A to point B ( e.g. from New York to Cape Cod). A backward trajectory is the reverse, where did a parcel of air come from ( e.g. , where did the ozone on Cape Cod most likely originate?)? The path and/or trajectory depends mostly on the wind speed and direction, but other weather parameters do come into play, such as how sunny it is, and whether the air is rising or sinking as it moves. One way of determining trajectories is with trajectory models. The model EPA used to compute backward trajectories is the HYSPLIT-4 (Hybrid Single-Particle Lagrangian Integrated Trajectory) model, developed by NOAA Air Resources Lab. Input meteorological data fields were from the National Centers for Environmental Prediction Eta Data Assimilation System. Details of this analysis are found in the technical support document for this action. EPA's trajectory analysis of the days with ozone exceedances at these sites (Truro, MA, Fairhaven, MA, Narragansett, RI, East Providence, RI and West Greenwich, RI) support the CALGRID modeling which shows that the most probable source region of the exceedances at these sites is southern New England and areas to the south and west of New England. In none of the cases modeled, do the HYSPLIT trajectories show New Hampshire as a probable source region for this ozone. This confirms the zero-out runs discussed above, and adds to the weight-of-evidence analysis.

The Boston-Lawrence-Worcester, MA-NH ozone nonattainment area was in attainment for three consecutive, three-years periods from 1998-2000 ( i.e. 1996-1998, 1997-1999, and 1998-2000). As discussed above, the violation based on the three-year period from 1999-2001 occurred at two monitors in extreme southeastern Massachusetts. Based on zero-out modeling performed by the New Hampshire DES, the emissions that are causing these violations are not emanating from New Hampshire, but rather from sources near and upwind of these monitors.

Massachusetts, the other state in this multi-state nonattainment area, has performed additional analyses with regard to the remaining violations in the Boston-Lawrence-Worcester, MA-NH nonattainment area. Those additional analyses were submitted to EPA by the Massachusetts DEP on September 6, 2002. Those additional analyses concluded that the emission reductions that upwind states will achieve under the NO X SIP Call, beginning in 2003, should help bring the area back into attainment. Massachusetts also analyzed how reductions from the EPA's Tier 2 vehicle and low sulfur gasoline program promulgated on February 10, 2000 (65 FR 6697) will benefit the area. In a separate action, EPA has proposed approval of the Massachusetts attainment demonstration for this nonattainment area based on the conclusion that attainment will be achieved in the future once scheduled federal and local control measures are implemented.

Even though the upwind reductions are most critical in ensuring that this area is brought back into attainment, EPA notes that there are additional control strategies and emission reductions within New Hampshire that will not fully be implemented until 2003 and beyond. These measures include: the State of New Hampshire NO X budget and allowance trading program, additional reductions from fleet turn-over and non-road equipment turnover. These reductions will continue to help ensure that air quality improves in the area, and that maintenance of the ozone standard in southern New Hampshire is continued.

The Boston-Lawrence-Worcester, MA-NH area attained the one-hour ozone standard as of 1999, its statutory deadline under the CAA. Moreover, the Boston-Lawrence-Worcester, MA-NH nonattainment area continued to have air quality meeting the one-hour ozone standard until the 1999 through 2001 time period. In the Massachusetts DEP attainment demonstration supplement that was submitted to EPA on September 6, 2002, Massachusetts provides evidence that the entire nonattainment area will once again attain by an attainment date of November 15, 2007, once a variety of scheduled control strategies are more fully implemented. In a separate action, EPA has proposed approval of the Massachusetts attainment demonstration for this nonattainment area and has proposed an attainment date of November 15, 2007. This attainment date will be for the entire nonattainment area including the New Hampshire portion.

As discussed above, the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area attained the ozone standard based on ozone data collected in 1997-1999 and 1998-2000, and is now violating the standard only in the southern portion of the multi-state nonattainment area, in Massachusetts. As described in EPA's proposed approval of the Massachusetts attainment demonstration for this area, the Massachusetts Department of Environmental Protection has committed to perform a mid-course review for this area by December 31, 2004. As discussed above, EPA has concluded that based on ozone modeling and trajectory analyses performed by New Hampshire DES and EPA, that New Hampshire emissions are not contributing to the continued violations in the nonattainment area. Nevertheless, New Hampshire in its attainment demonstration SIP submittal has committed to “work with neighboring states and EPA Region I to determine the magnitude and geographic location of emission reductions required in order to most effectively attain and maintain ozone attainment for the 1-hour and then the 8-hour ozone standards.” EPA interprets this to mean that New Hampshire will work with Massachusetts in performing a mid-course review for this area by December 31, 2004. EPA believes this mid-course review will be sufficient to determine if the nonattainment area's control strategy is resulting in emission reductions and air quality improvements needed to attain the ozone standard in the nonattainment area as expeditiously as practicable.

The EPA has reviewed the SIP submittal for the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area to determine if it includes sufficient documentation concerning available RACM measures. In its June 30, 1998 attainment demonstration, New Hampshire DES describes the control measures that it is implementing to assure attainment. New Hampshire DES also analyzes how effective additional VOC and NO X reductions in various parts of the modeling domain would be at reducing predicted elevated concentrations of ozone.

As explained above, the analyses done by the New Hampshire DES included “zero-out” modeling runs for five separate episode days. In these model runs, all New Hampshire anthropogenic emissions of NO X and VOC are removed from the analysis. Those “zero-out” modeling runs shows the contribution that New Hampshire anthropogenic emissions have to various parts of the modeling domain. As explained above, ozone monitoring data from 1999 through 2001 for the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area shows that only ozone monitors in extreme southeastern Massachusetts currently violate the one-hour ozone NAAQS. A look at those “zero-out” modeling runs with this in mind shows that even if the State of New Hampshire eliminated all anthropogenic sources of ozone precursors (NO X and VOC), there would be no impact to the area in southeastern Massachusetts still recording NAAQs violations.

Furthermore, EPA performed a trajectory analysis of each of the days during 1999 through 2001 when exceedances of the one-hour ozone NAAQS were monitored in the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area. That analysis shows that the source region for these exceedances is southern New England and areas to the south and west of New England. None of the trajectories implicate the State of New Hampshire.

Therefore, EPA concludes based on the available information, that there are no additional emission control measures in New Hampshire that will advance the attainment date for the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area. Thus no potential measure can be considered RACM for purposes of section 172(c)(1) for southern New Hampshire for its one-hour ozone attainment demonstration. The EPA therefore proposes that the New Hampshire SIP meets the requirements for RACM.

Although EPA does not believe that section 172(c)(1) requires implementation of additional measures for this area, this conclusion is not necessarily valid for other areas.

New Hampshire's 15 percent plan submitted on February 3, 1994 included a year 1996 VOC motor vehicle emissions budget of 17.96 tons per summer day. On September 27, 1996 New Hampshire submitted its post-1996 plan which included a more stringent 1999 VOC motor vehicle emissions budgets of 16.56 tons per summer day VOC, as well as identified a new NO X budget of 22.96 tons per summer day of NO X . These 1999 motor vehicle emissions budgets were formally determined adequate by EPA New England for use in transportation conformity on April 29, 1999. Subsequent to the rate-of-progress SIPs, on June 30, 1998, New Hampshire submitted its ozone attainment demonstration to EPA which establishes motor vehicle emissions budgets for both VOC and NO X for 2003. The 2003 VOC and NO X budgets (10.72 tons per summer day and 21.37 tons per summer day respectively) established by the New Hampshire ozone attainment demonstration were formally determined adequate by EPA on August 19, 1998. These budgets are currently the controlling budgets for conformity determinations for 2003 and later years because the 2003 MVEBs are more stringent than the 1999 budget.

New Hampshire's current level of VOC and NO X emissions are consistent with a level required to attain and maintain the one-hour ozone NAAQS in New Hampshire and downwind areas. No ozone monitor in the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area has experienced a violation of the one-hour ozone NAAQS since the three year period from 1996-1998. Additional VOC and NO X emission reductions within the New Hampshire portion of the nonattainment area would not likely speed up attainment in the nonattainment area nor reduce elevated ozone levels measured in southeastern Massachusetts, the portion of the nonattainment area that still violates the one-hour ozone standard. This conclusion is justified by the zero-out modeling and trajectory analysis discussed above.

The 2003 MVEBs adopted by the State of New Hampshire are lower than the current level of motor vehicle emissions estimated in the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH nonattainment area. 15 While the 2003 MVEBs are not as stringent as the currently projected 2007 motor vehicle emissions for the area, 16 the motor vehicle emission budgets must only demonstrate that its emission level is sufficient to attain and maintain the one-hour NAAQS for ozone. For example, the projected 2007 motor vehicle emission levels can have an additional quantity of “safety margin” emissions to accommodate future growth added to them to create the attainment-level motor vehicle emission budgets, provided that the area continues to demonstrate attainment. The important criteria is that the motor vehicle emission level established in the attainment demonstration, when added to the stationary, area and other mobile sources are consistent with attainment of the one-hour NAAQS for ozone.

Since New Hampshire's current level of VOC and NO X emissions are consistent with a level required to attain the one-hour ozone NAAQS, the lower 2003 MVEBs adopted by the State of New Hampshire represent acceptable attainment-level MVEBs with a safety margin included. Since the State of New Hampshire has such discretion when setting motor vehicle emissions budgets provided its budgets are consistent with the measures in the SIP, EPA is proposing to approve the budgets submitted by New Hampshire. The attainment-level MVEBs are shown in Table 3 below.

By letter dated August 19, 1998, we informed New Hampshire that the motor vehicle emissions budgets contained within the state's ozone attainment demonstration were adequate for conformity purposes. Since that time, New Hampshire has been required to use these budgets in conformity. This notice proposes to approve the attainment-level motor vehicle emissions budgets into the SIP. Once New Hampshire's attainment demonstration is finally approved by EPA and an attainment date of November 15, 2007 is established for the entire nonattainment area, New Hampshire will be required to use 2007 as a milestone year in future transportation conformity determinations.

The EPA believes the contingency measure requirements of sections 172(c)(9) and 182(c)(9) of the CAA are independent requirements from the attainment demonstration requirements under sections 172(c)(1) and 182(c)(2)(A) and the rate-of-progress (ROP) requirements under sections 172(c)(2) and 182(c)(2)(B). The contingency measure requirements are to address the event that an area fails to meet a ROP milestone or fails to attain the ozone NAAQS by the attainment date established in the SIP. The contingency measure requirements have no bearing on whether a state has submitted a SIP that projects attainment of the ozone NAAQS or the required ROP reductions toward attainment. The attainment or ROP SIP provides a demonstration that attainment or ROP requirements ought to be fulfilled, but the contingency measure SIP requirements concern what is to happen only if attainment or ROP is not actually achieved. The EPA acknowledges that contingency measures are an independently required SIP revision, but does not believe that submission of contingency measures is necessary before EPA may approve an attainment or ROP SIP. 17 New Hampshire remains obligated to submit the contingency measures required by 172(c)(9) and 182(c)(2)(A), but EPA may approve this attainment demonstration at this time even though they have not yet done so.

EPA is proposing to fully approve as meeting CAA section 182(c)(2) the ground-level one-hour ozone attainment demonstration State Implementation Plan for the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area submitted by New Hampshire on June 30, 1998, as demonstrating that the area will attain the one-hour ozone standard. We are also proposing that no potential measures can be considered RACM for New Hampshire for purposes of section 172(c)(1). This notice also proposes to approve the attainment-level motor vehicle emissions budgets submitted by New Hampshire into the SIP.

EPA is soliciting public comments on the issues discussed in this proposal. These issues will be considered before EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional office listed in the ADDRESSES section of this action.

A more detailed description of the state submittal and EPA's evaluation are included in a Technical Support Document (TSD) prepared in support of this rulemaking action. A copy of the TSD is available upon request from the EPA Regional Office listed in the ADDRESSES section of this document.

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

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

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

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the federal program. As the federal program changes, states must change their programs and ask EPA to authorize the changes. Changes to state programs may be necessary when federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

EPA has determined that Ohio's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we are proposing to grant Ohio final authorization to operate its hazardous waste program with the changes described in the authorization application. Ohio will have responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New federal requirements and prohibitions imposed by federal regulations that EPA promulgates under the authority of HSWA take effect in authorized states before the states are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Ohio, including issuing permits, until the State is granted authorization to do so.

If Ohio is authorized for these changes, a facility in Ohio subject to RCRA will have to comply with the authorized State requirements in lieu of the corresponding federal requirements in order to comply with RCRA. Additionally, such persons will have to comply with any applicable federally-issued requirements, such as, for example, HSWA regulations issued by EPA for which the State has not received authorization, and RCRA requirements that are not supplanted by authorized State-issued requirements. Ohio continues to have enforcement responsibilities under its state hazardous waste management program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, the authority to:

• Do inspections, and require monitoring, tests, analyses or reports;

• Enforce RCRA requirements and suspend or revoke permits; and

• Take enforcement actions regardless of whether the State has taken its own actions.

The action to approve these revisions would not impose additional requirements on the regulated community because the regulations for which Ohio will be authorized are already effective under State law and are not changed by the act of authorization.

If EPA receives comments that oppose this authorization, we will address those comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

Ohio initially received final authorization effective June 30, 1989 (54 FR 27170-27174, June 28, 1989) to implement the RCRA hazardous waste management program. We granted authorization for changes to Ohio's program effective June 7, 1991 (56 FR 14203, April 8, 1991), as corrected effective August 19, 1991 (56 FR 28808, June 19, 1991)); effective September 25, 1995 (60 FR 51244, July 27, 1995); and effective December 23, 1996 (61 FR 54950, October 23, 1996).

On June 25, 2002, Ohio submitted complete program revision applications, seeking authorization of its changes in accordance with 40 CFR 271.21. We have determined that Ohio's hazardous waste program revisions satisfy all of the requirements necessary to qualify for final authorization.

Ohio's program revisions are based on changes to the federal program and modifications initiated by the State. The federal and analogous State provisions involved in this proposed decision and the relevant corresponding checklists (if applicable) are listed in the following tables:

Ohio will issue permits for all the provisions for which it is authorized and will administer the permits it issues. All permits issued by EPA prior to EPA authorizing Ohio for these revisions will continue in force until the effective date of the State's issuance or denial of a State RCRA permit, or the permit otherwise expires or is revoked. EPA will administer any RCRA hazardous waste permits or portions of permits which EPA issued prior to the effective date of this authorization until such time as Ohio has issued a corresponding State permit. EPA will not issue any more new permits or new portions of permits for provisions for which Ohio is authorized after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Ohio is not yet authorized.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart P for this authorization of Ohio's program changes until a later date.

Ohio is not authorized to carry out its hazardous waste program in Indian country, as defined in 18 U.S.C. 1151. Indian country includes:

1. All lands within the exterior boundaries of Indian reservations within or abutting the State of Ohio;

2. Any land held in trust by the U.S. for an Indian tribe; and

3. Any other land, whether on or off an Indian reservation that qualifies as Indian country.

Therefore, this action has no effect on Indian country. EPA retains the authority to implement and administer the RCRA program in Indian country. However, at this time, there is no Indian country within the State of Ohio.

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This action does not have tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 9, 2000). This action 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 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. This action does not include environmental justice-related issues that require consideration under Executive Order 12898 (59 FR 7929, February 16, 1994).

Under RCRA 3006(b), EPA grants a state's application for authorization as long as the state meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a state authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket Nos. 02-296,02-297, 02-298, 02-299, 02-300, 02-301, 02-302, adopted September 11, 2002, and released, September 27, 2002. The full text of this document is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

The Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows: