In the above-noted final rule amendments document published by the USDA, with OGE concurrence, the beginning of amendatory instruction 2.e. inadvertently omitted the words “Removing the” before the paragraph reference identified therein which was being replaced by a redesignated paragraph reference. This document corrects the error in amendatory instruction 2.e.

For the reasons set forth in the preamble, the Department of Agriculture, with the concurrence of the Office of Government Ethics, is correcting the September 16, 2002, publication of the final rule amendments on Supplemental Standards of Ethical Conduct for Employees of the Department of Agriculture, which was the subject of FR Doc. 02-23489, as follows:

The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (the Department) administers regulations at 9 CFR part 53 (referred to below as the regulations) that provide for the payment of indemnity to owners of animals that are required to be destroyed because of foot-and-mouth disease, pleuropneumonia, rinderpest, exotic Newcastle disease, highly pathogenic avian influenza, infectious salmon anemia, or any other communicable disease of livestock or poultry that, in the opinion of the Secretary of Agriculture, constitutes an emergency and threatens the U.S. livestock or poultry population. Payment for animals destroyed is to be based on the fair market value of the animals.

Section 53.2 of the regulations authorizes the APHIS Administrator to cooperate with a State in the control and eradication of disease. Paragraph (b) of this section allows for the payment of indemnity to cover the costs for purchase, destruction, and disposition of animals and materials required to be destroyed because of being contaminated by or exposed to such disease. In the case of low pathogenic avian influenza (LPAI), the Administrator may pay up to 50 percent of the costs.

Avian influenza (AI) viruses are classified into 15 subtypes based on their surface hemagglutinin (H) proteins. LPAI viruses constitute the vast majority of AI viruses and cause few clinical signs in infected birds. However, LPAI H5 and H7 viruses can mutate into highly pathogenic forms under field conditions.

Highly pathogenic AI (HPAI) is not known to exist in the United States. It is an extremely infectious and deadly form of the disease and can cause sudden death in poultry without any warning signs of infection. Recently, a subtype of the H7 virus, the H7N2 strain, was determined to be present in commercial poultry flocks in the State of Virginia. (To date, no poultry infected with the H5 virus have been found in Virginia.) Because of the possibility that LPAI H5 and H7 viruses could mutate into HPAI, we have determined that it is necessary to eliminate these specific viruses if they occur in poultry in relation to the disease situation occurring in Virginia.

Agricultural authorities in Virginia have taken action to control the disease through diagnostic activities, quarantines, surveillance, depopulation and disposal of infected and exposed poultry, and cleaning and disinfection or disposal of contaminated materials. To protect the poultry industry in the United States, APHIS is cooperating with Virginia in its control measures. Integral to these efforts is the destruction of all poultry known to be infected with or exposed to the disease.

In reviewing the regulations in § 53.2 regarding authorization of payments by the Department for losses growing out of the destruction of animals affected with the disease, we found the wording too narrow to cover costs borne by contract growers of poultry, who do not own the birds, but who nonetheless would suffer losses associated with their destruction. Therefore, we are adding a new § 53.11(a) to the regulations, in which we provide that, subject to available funding, in the case of the current disease situation in Virginia associated with the H5 or H7 virus, the Administrator may pay claims of up to 100 percent of eligible losses incurred by each contract grower resulting from the destruction of poultry affected with the disease, up to the amount that the owner of the poultry is eligible to receive before grower compensation is deducted, as discussed below.

We are also adding a new § 53.11(b) to provide that, in the case of the current LPAI situation in Virginia, the Administrator may pay up to 50 percent of all eligible losses incurred by each owner resulting from the destruction of poultry affected with the disease, minus any amount APHIS pays to the contract grower of the poultry under § 53.11(a). A copy of the LPAI compensation plan is available for review at the location listed in the ADDRESSES section at the beginning of this document and at http://www.aphis.usda.gov/ppd/rad/avianecon.pdf . Compensation will be made only for poultry destroyed and the costs of destruction and disposal, and not for materials.

Under the LPAI compensation plan, the total per bird compensation value is determined first. Compensation for growers is determined next, with the amount per bird based on the payments that growers have earned in previous production cycles. Once the amount to be paid to growers is arrived at, that amount is subtracted from the total compensation value to determine what owners will receive.

In general, the compensation plan will be applied according to the following formulas:

The compensation plan for growers allows for Federal payment of 100 percent of eligible losses suffered by a grower, up to the amount that the owner of the poultry is eligible to receive before grower compensation is deducted. In all cases, 100 percent of eligible grower losses will be less than 50 percent of the value of the birds.

By targeting growers for indemnities, the Federal Government enhances the probability of rapid reporting by growers who are in a position to quickly report a disease situation. This enhances the likelihood of prompt eradication. In addition, such payments will benefit poultry growers who could otherwise suffer uncompensated economic losses from participating in an eradication program. If growers are not compensated, any sunk mortgage, electricity, or labor costs a grower has invested in a flock are lost when the flock is depopulated. Some of these costs, such as mortgage costs, continue even if there are no poultry on the grower's premises.

We are providing in new § 53.11(c) that payments are conditioned on each claimant's complying with all applicable requirements of part 53 and, additionally, adhering to and complying with the specific conditions set forth in the “Avian Influenza Depopulation Agreement” regarding cleaning and disinfection, restocking, surveillance, and other disease prevention measures.

We will consider affected poultry to be related to the current disease situation in Virginia if they are located in Virginia or if they are poultry in another State that are determined to be affected with LPAI because of being epidemiologically linked to the disease situation in Virginia.

Owners who collect salvage value for poultry destroyed because of LPAI will have that value subtracted from the amount of indemnity they are eligible to receive.

Prior to this interim rule, § 53.4 provided, among other things, that poultry affected by disease must be killed promptly after appraisal. However, in the case of a disease such as LPAI that can spread rapidly among poultry in close proximity, it may be necessary in controlling the disease to destroy poultry before determining its value. Therefore, we are providing in a new § 53.4(b) that, in the case of the current disease situation in Virginia, the value of poultry may be calculated following destruction and disposal of the poultry, based on the number, type, and age of the poultry destroyed.

We are providing in § 53.8 that any claims for payment for poultry destroyed in relation to the current disease situation in Virginia must be submitted to APHIS within 90 days after the effective date of this rule or the destruction of the poultry, whichever is later. Additionally, we are revising § 53.8 to provide that claims for payment must simply be made on a form approved by the Administrator, and remove the requirement that a separate voucher be used for each type of commodity for which a claim is made. In the case of the disease situation in Virginia, compensation will be made for the poultry and for the costs of destruction and disposal of the poultry. In all other cases, the claim form approved by the Administrator can be used for claims for other eligible losses.

The Administration is examining how the costs of program activities, including the payment of claims, are shared among the Federal government and cooperators such as State and local governments, industry, and producers. Hence, in the future, the payment rate provided under this rule may change.

We are providing in § 53.7 that, in the case of LPAI related to the current disease situation in Virginia, premises that have contained poultry for which indemnity is paid under the provisions of this interim rule may not be restocked with poultry until at least 7 days following cleaning and disinfection of the premises, unless the Administrator determines that a shorter or longer period of time is adequate or necessary to protect new poultry against infection. Generally, we consider 7 days following cleaning and disinfection (which usually follows approximately 14 days after the removal of the poultry) to be a sufficient period of time for the elimination of any LPAI virus that might remain on the premises. However, in some cases it is possible it might not be entirely safe to restock a premises until more than 7 days following cleaning and disinfection, such as when poultry have not yet been removed from a premises contiguous to the premises that has been cleaned and disinfected, or when poultry litter is left in a barn that has been otherwise cleaned and disinfected. In such cases, an APHIS official will recommend to the Administrator that more than 7 days be required before restocking may occur. If on the other hand, owners or growers can demonstrate to the Administrator that less than a 7-day waiting period following cleaning and disinfection is sufficient to ensure that the virus has been eliminated, this interim rule allows the Administrator to approve such a shorter period.

The Administrator has determined that there is good cause for publishing this interim rule without prior opportunity for public comment. This rulemaking is necessary to allow contract growers, as well as owners, of poultry destroyed because of LPAI associated with a disease situation in Virginia to be compensated. The rulemaking is also necessary to allow the value of the poultry to be determined after destruction, and to specify how soon a premises that contained affected poultry may be restocked. These provisions are necessary to help control the disease in the United States.

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

This rule has been reviewed under Executive Order 12866. The rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

Below is a summary of the economic analysis for the changes in indemnity with regard to low pathogenic avian influenza in Virginia contained in this document. The economic analysis provides a cost-benefit analysis as required by Executive Order 12866 and an analysis of the potential economic effects on small entities as required by the Regulatory Flexibility Act. A copy of the full economic analysis is available for review at the location listed in the ADDRESSES section at the beginning of this document and at http://www.aphis.usda.gov/ppd/rad/avianecon.pdf .

We do not have enough data for a comprehensive analysis of the economic effects of this interim rule on small entities. Therefore, in accordance with 5 U.S.C. 603, we have performed an initial regulatory flexibility analysis for this rule. We are inviting comments about this rule as it relates to small entities. In particular, we are interested in determining the number and kinds of small entities who may incur benefits or costs from implementation of this interim rule and the economic effect of those benefits or costs.

The Secretary of Agriculture is authorized to carry out operations and measures to detect, control, or eradicate any diseases affecting livestock (7 U.S.C. 8308). These measures include the payment of claims growing out of the destruction of animals, articles, and means of conveyance (7 U.S.C. 8308).

Subject to available funding, this rule will permit compensation of up to 50 percent of the value of poultry destroyed because of LPAI associated with a disease situation in Virginia, plus 50 percent of the costs of the destruction and disposal of the poultry. It will allow both contract growers and owners to be compensated for losses, and for each contract grower to be compensated for 100 percent of his or her losses, up to the amount that the owner is eligible to receive before grower compensation is deducted. Language requiring appraisal before depopulation is amended to allow birds to be valued after depopulation based on the age and type of birds. Finally, except in limited situations, the rule requires a 7-day waiting period following cleaning and disinfection before poultry houses may be restocked. A key issue in terms of benefits and distributional issues is compensation to growers.

We consider it important to formalize provisions to share indemnity payments among poultry owners and poultry growers, both of whose productive assets are imbedded in the value of the birds. For example, an owner may own large numbers of birds located on several different farms where they are cared for by contract growers who provide the housing, equipment, labor, and other inputs. There is at present no formal requirement or procedure for assuring that the indemnity is properly shared with the contract grower, depending on the terms of the contractual arrangement. But if the owner does not pass on the proper amount to the grower, the grower loses costs committed to production when flocks under his or her care are depopulated.

The existing regulations provide that APHIS and the States will cooperate in controlling and eradicating disease. For most diseases, including LPAI, the regulations prior to this interim rule provided that APHIS may pay 50 percent of the costs of indemnity.

In assessing the need for this interim rule, we identified the baseline and an alternative:

1. The baseline option is to maintain the status quo, where State and industry efforts to control LPAI are supported by Federal technical assistance and by Federal compensation of up to 50 percent of the costs.

2. The alternative provides for up to 50 percent Federal compensation and allows for both growers and owners to be compensated for economic losses arising from depopulation. It also allows growers to be fully compensated for their losses, provided that the amount for each grower does not exceed the amount that the owner of the poultry is eligible to receive before grower compensation is deducted. In addition, appraisal and restocking provisions are added.

The baseline and the alternative differ with respect to three broad issues: (1) Distribution of compensation between owners and growers; (2) appraisal; and (3) restocking. The baseline and the alternative are alike in every respect except for the distribution of compensation paid by the Federal Government. In the baseline, the Federal Government pays all compensation to the owner and, in the alternative, the Federal Government pays compensation to the owner and the grower.

In this alternative, the key issue for comparison in terms of benefits and distributional issues is compensation of growers. APHIS is amending the regulations so that contract growers, as well as poultry owners, can be compensated for economic losses arising from depopulation.

For contract growers, this is a significant change from the baseline and a benefit. Prior to this interim rule, the regulations have been interpreted to mean that the owner of the bird should receive the compensation. Owners own the bird and provide most of the physical inputs, such as feed, into production. The farmer—or contract grower who raises the bird—provides inputs such as labor, electricity, and housing. Embedded in the value of a bird at any point in time is the value of the physical inputs as well as the value of the farmer's labor and inputs. In the past, only one payment check was issued. It went to the owner who, depending on the terms of the contractual relationship, could compensate the grower or not.

By targeting growers for indemnities, the Federal Government enhances the probability of rapid reporting by growers' agents who are in a position to quickly report a disease situation and thus enhances the likelihood of prompt eradication of the disease. In addition, this alternative will benefit poultry growers who could otherwise suffer uncompensated economic losses from participating in an eradication program. If growers are not compensated, any sunk mortgage, electricity, or labor costs a grower has invested in a flock are lost when the flock is depopulated. Some of these costs, such as mortgage costs, continue even if there are no poultry on the grower's premises.

Language relating to appraisal is also being changed in this interim rule. This change is more of a clarification than a substantive change with pronounced economic effects. Language in the regulations prior to this interim rule required that poultry be appraised before being depopulated. However, appraisal per se is often an impracticable approach for valuing commercial poultry flocks that can number hundreds of thousands of birds in size. Using a standard value per bird calculated by age (or weight) and type of bird (meat turkey, meat broiler, or breeder turkey, for example) is often more reasonable and effective than appraisal. Further, it could be difficult or unproductive to hold infected birds pending appraisal, or impossible to appraise birds that have already been incinerated, buried, or otherwise disposed of.

Finally, except in limited situations, the alternative requires a 7-day waiting period after cleaning and disinfection before poultry houses may be restocked. The baseline regulation is silent on the issue of restocking. This is a new requirement that will impose costs on industry, primarily on the growers whose houses will remain idle during cleaning and disinfection and the waiting period after, but that will confer benefits on industry as a whole in terms of reduced likelihood of reinfection.

On April 1, 2002, the Virginia Department of Agriculture and Consumer Services (VDACS) confirmed that 20 flocks of birds in 4 Shenandoah Valley, VA, counties were infected with LPAI. As of June 18, 2002, 11 weeks later, 165 farms had been quarantined and roughly 4.7 million birds had been depopulated. Turkey farms, raising both meat birds (126 farms) and breeder birds (26 farms), had been hardest hit, accounting for 152 of the affected premises. Six Virginia counties were affected, with the bulk of cases (142) reported in Rockingham County.

To control spread of disease, VDACS has set up quarantines around farms, implemented mandatory pre-slaughter testing on all breeder birds, commercial turkeys and broilers, as well as mandatory testing of any flocks with respiratory symptoms. If a flock tests positive, officials quarantine the farm immediately and order the destruction of the flock within 24 hours if logistically possible. State and industry have collaborated on surveillance, depopulation, disposal and diagnostics.

Beginning April 15, 2002, a significant Federal component joined the State of Virginia in an effort to contain the spread of the disease. The joint Federal/State task force has collaborated on diagnosis and inspection, disposal, cleaning and disinfection, vector control, and disease surveillance.

The United States is the world's largest producer and exporter of poultry meat. In 1999, the most recent year for which Economic Research Service (ERS) reports summarized data, U.S. poultry meat production totaled 35.3 billion pounds, of which 83 percent was broiler meat, 15 percent was turkey meat, and 2 percent was other chicken meat. The total farm value of U.S. poultry production in 1999 was $22.4 billion. Broiler production accounts for the majority of the value at $15.1 billion, followed by eggs at $4.3 billion, turkey at $2.8 billion, and other chicken at $68 million.

Broiler production is concentrated in a group of States stretching from Delaware, south along the Atlantic Coast to Georgia, then westward through Alabama, Mississippi, and Arkansas. In 1999, these States accounted for over 70 percent of broilers produced in the United States. The top broiler-producing States were: Georgia (1.24 billion head); Arkansas (1.2 billion head); Alabama (0.971 billion head); Mississippi (0.735 billion head); and North Carolina (0.674 billion head).

U.S. turkey production in 1999 totaled 273 million birds with a combined live weight of 6.9 billion pounds. Production of turkey is somewhat more scattered geographically than broiler production. The top five turkey-producing States are North Carolina, Minnesota, Arkansas, Virginia, and California.

The United States is the world's largest exporter of broilers. In 1999, broiler exports totaled 4.920 billion pounds (17 percent of total production), valued at $1.4 billion. Demand for U.S. broiler products has fluctuated over the last several years due to changing economic conditions and currency exchange rates in the major exporting countries. In 1999, the largest importers of U.S. broiler products were Russia (including the Baltic countries) and China (including Hong Kong), which together accounted for 62 percent of total shipments of U.S. broiler products, on a quantity basis.

The United States is also the world's largest exporter of turkey products. In 1999, U.S. turkey exports were 378 million pounds and were valued at $198 million. Only 11 percent of turkey exports were as whole birds, with the majority of shipments being lower-valued turkey parts or ground or mechanically deboned meat (MDM). Many importing countries mix ground or MDM turkey meat with other meats in sausage production.

In 2000, Virginia was the fourth ranking turkey-producing State and the eighth ranking broiler-producing State. Virginia produced 25.5 million turkeys (almost 10 percent of the U.S. total) valued at $238 million, and 265 million commercial broilers valued at $441 million. Gross income from Virginia broilers, turkeys, and all other poultry totaled over $700 million in 2000. Virginia's poultry industry is concentrated in the Shenandoah Valley. A recent industry survey determined that of the 1,285 poultry farms in Virginia, 1,100 were located in the Shenandoah Valley, and all were contract growers.

Contract production dominates the Virginia and the U.S. chicken, turkey, and egg industry. Owners place poultry on farms, and the farmer (or contract grower) cares for the birds until they reach processing size (usually 6.5 weeks for broilers, and 17-24 weeks for turkeys). Typically the owner provides chicks, feed, veterinary supplies and services, management services, field personnel, and transportation for the birds to and from the farm. The grower provides labor, land and housing facilities, utilities, and other operating expenses, such as repairs and maintenance.

Specific contract terms vary greatly from situation to situation. Farmers are compensated by owners at the end of the grow-out period. The compensation typically consists of three components: (1) A base payment (per-bird payment or a per-pound fee); (2) an incentive or performance payment to reward efficient producers; and (3) a disaster clause that may compensate the grower for losses resulting from natural disasters, such as flood, excessive heat, fire, or for damage or loss of potential production. Some contracts have provisions under which owners can compensate growers for losses arising from depopulation and others do not.

This interim rule will allow both owners and growers to be compensated for their losses arising from depopulation of birds affected with LPAI. When a bird is depopulated and an indemnity is paid solely to an owner who does not pass on a portion to the grower, the grower suffers uncompensated economic losses. The process of compensating growers and owners will have three separate steps: (1) Calculation of per bird payments by age and type of bird; (2) determination of how much of this payment should go to growers and how much to owners; and (3) development of procedures for paying growers and owners.

In conjunction with industry, production experts, and poultry price specialists, the Department has developed reference tables that specify per bird indemnity payments based on the age and type of bird. Fair market values have been developed for breeder birds (breeder broilers, breeder turkey hens, and breeder turkey toms), for meat birds (broilers, hens, and toms), and for table egg layers (two table egg layer flocks have been depopulated) using appropriate methodologies. These tables are available in the full economic analysis for this rule, which is available for review at the location listed in the ADDRESSES section at the beginning of this document and at http://www.aphis.usda.gov/ppd/rad/avianecon.pdf.

Because there is limited price information (the U.S. poultry industry is a vertically integrated industry with no markets for poultry at intermediate stages of development), it has been necessary to develop “fair market values” for meat birds depopulated prior to “grow-out” and for breeder birds, which are not typically sold at intermediate stages of development. In brief, the approach that has been taken is to start with published wholesale prices for meat birds (broilers and turkeys) and work backwards. Transportation and processing costs are subtracted out to arrive at broiler and turkey values. Then production costs are subtracted to arrive at the value of the chick. Then hatchery costs are subtracted to determine the value of a fertile egg. The value of a fertile egg times the number of fertile eggs laid equals the gross value of a breeding bird. Gross value less egg production cost equals the net value of a breeding bird. The value of birds at less than slaughter weight is calculated by adjusting for the cost of feed not fed. For breeders in production, adjustment is made for fertile eggs already produced and, for breeders being raised, adjustment is made for feed not fed.

The Department has determined that, subject to available funding, growers may recoup 100 percent of their eligible costs regardless of the age at which the birds are depopulated, up to 50 percent of all eligible losses incurred by each owner (as determined before grower compensation is deducted) resulting from the destruction of poultry affected with the disease. Grower payments will be based on historical contract settlement sheets or historical amounts paid per bird by companies in the past. Subject to available funding, payments to owners will equal 50 percent of the estimated value of the birds and the cost of destroying and disposing of the birds, minus grower compensation.

The final cost of this rule will depend on a number of factors, including the number, type, and age of birds depopulated; actual indemnity paid per bird; and other program costs. Given the provisions of this rule (a 50 percent compensation cap on total compensation to owners and growers, with growers being compensated up to 100 percent of their losses) and the depopulation numbers as of October 2, 2002, of 4.74 million birds, the total compensation bill is estimated at $51 million, with growers being compensated $13.9 million and owners being compensated $37.1 million.

The groups that primarily benefit because of a disease eradication campaign include consumers and those owners and growers whose flocks have remained healthy. The groups that bear the primary burden of the eradication effort are the owners and growers whose flocks are depopulated. In addition to the value of lost production, the owners and growers of affected birds may also bear costs of cleanup, disinfection, transportation, foregone income, and other financial hardships.

The benefits of this rule are not quantified, but are expected to significantly exceed the costs. They stem from the enhanced probability of rapid detection and prompt eradication of a disease situation. Benefits include: (1) Avoided owner and grower losses from disease morbidity and mortality; (2) avoided consumer price increases resulting from decreased supplies; and (3) avoided trade bans (State, regional, or national) that result when trading partners close markets because of disease. In addition by eradication of a disease situation of LPAI, we reduce the probability of the disease mutating into HPAI and spreading to densely populated poultry production areas on the eastern seaboard, which would have severe industry costs.

Although a quantified cost-benefit analysis was not conducted for this disease situation, the full economic analysis for this rule does summarize an economic analysis by ERS of a 1983-1984 outbreak of HPAI that affected parts of Pennsylvania, New Jersey, Maryland, and Virginia. That analysis found that the program and indemnity costs were small compared to losses avoided (consumer losses from increased prices). That analysis found that program and indemnity costs were $55 million ($98 million in 2002 dollars). If the outbreak had spread to the Delmarva Peninsula in Delaware, Maryland, and Virginia, consumer losses due to increased prices would have approached $492 million ($882.2 million in 2002 dollars). If the outbreak had spread to the entire eastern seaboard, consumer losses due to increased prices would have approached $5.6 billion ($10.04 billion in 2002 dollars) in increased consumer prices for eggs, fowl, broilers, turkeys, pork, and beef. Although market conditions have changed from the time that analysis was conducted, and although the current disease situation differs from the 1983-1984 outbreak, we believe that the conclusion holds that benefits of this action will significantly outweigh costs. Please also note that the ERS estimates do not include any potential effects on trade. We believe that the avoidance of potential reductions in trade increases the benefits of this interim rule substantially.

To the extent that the interim rule contributes to the elimination of AI in Virginia, all affected entities should benefit over the long term. In the short term, however, the economic effects will vary.

As of June 18, 2002, 163 Shenandoah Valley poultry farms in a six-county area of Virginia were quarantined because of LPAI. Assuming the LPAI event remains localized in this area, 5 or 6 poultry companies/integrators who own the affected poultry, and a minimum of 104 to a maximum of 1,100 contract growers could be affected by this rule. A minimum of 7 and maximum of 15 poultry processors could be affected by this rule. In addition, other entities not yet identified may be directly or indirectly affected by the disease situation and/or the interim rule.

The poultry companies/integrators who own the birds are all large, vertically integrated concerns that do not meet the Small Business Administration (SBA) small-entity criteria. There are 1,100 contract poultry growers in the Shenandoah Valley. It is unclear at this time how many contract growers will be affected by this rule, or how many of them will qualify for consideration as small entities. The SBA defines small poultry operations as those earning gross per-farm receipts of no more than $750,000 annually.

There were 15 poultry processing plants in the State of Virginia in 1997. Seven of the processing plants were located in Rockingham and Shenandoah Counties. The SBA defines small poultry processing plants as those earning receipts of no more than $500,000 annually. It is unclear at this time how poultry processing plants will be affected by this rule. Census data for 1997 suggests that most of the processing plants would not qualify as small businesses because their average revenues exceed $100 million annually.

The reporting and recordkeeping requirements in this rule are discussed below under the heading “Paperwork Reduction Act.”

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are in conflict with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection and recordkeeping requirements included in this interim rule have been submitted for emergency approval to the Office of Management and Budget (OMB). OMB has assigned control number 0579-0208 to the information collection and recordkeeping requirements.

We plan to request continuation of that approval for 3 years. Please send written comments on the 3-year approval request to the following addresses: (1) Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2) Docket No. 02-048-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comments refer to Docket No. 02-048-1 and send your comments within 60 days of publication of this rule.

This interim rule amends the regulations in a way that will allow the Department to pay indemnity to contract growers and owners relating to poultry destroyed because of low pathogenic avian influenza associated with a disease situation in Virginia. The Department may pay all eligible losses of a contract grower, up to the amount that the owner is eligible to receive before grower compensation is deducted, and up to 50 percent of eligible losses of owners, minus any amount paid to the contract grower of a flock. Implementing this program will require affected entities to complete an appraisal and indemnity claim form, its accompanying worksheet, and depopulation agreements. We are soliciting comments from the public (as well as affected agencies) concerning our information collection and recordkeeping requirements.

These comments will help us:

(1) Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. , permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 1 hour per response.

Respondents: Participating poultry owners and growers, APHIS accredited veterinarians, State animal health officials, and State personnel who perform appraisal work.

Estimated annual number of respondents: 800.

Estimated annual number of responses per respondent: 2.

Estimated annual number of responses: 1,600.

Estimated total annual burden on respondents: 1,600 hours.

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

The NRC has relocated its Public Document Room (PDR) to the NRC's headquarters building, One White Flint North, located at 11555 Rockville Pike (first floor), Rockville, Maryland. The NRC is amending portions of its regulations to reflect the relocation of the PDR. This final rule also corrects the paragraphs listing approved information collection requirements in the information collection sections of several 10 CFR parts. These corrections are necessary to reflect information collections that were added or removed by specific rulemaking actions for which conforming changes were not made.

Because these amendments deal solely with agency practice and procedures, the notice and comment provisions of the Administrative Procedure Act do not apply under 5 U.S.C. 553(b)(A). These amendments are effective upon publication in the Federal Register . Good cause exists to dispense with the usual 30-day delay in the effective date, because these amendments are of a minor and administrative nature, dealing with the relocation of the agency PDR and correction of information collection sections.

The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22 (c)(2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.

This rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget, approval numbers 3150-0043, -0044, -0014, -0146, -0017, -0016, -0015, -0130, -0011, -0021, -0151, -0155, -0018, -0008, -0132,—0002, -0055, -0093, and -0036.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

A regulatory analysis has not been prepared for this final rule because this rule is administrative in that it amends the regulations to reflect the current address for the Public Document Room and corrects information collection sections in the Code of Federal Regulations. These are considered minor non-substantive amendments and will not have a significant impact on NRC licensees or the public.

The NRC has determined that the backfit rule does not apply to this final rule because this rule does not involve any provisions that would impose a backfit as defined in 10 CFR Chapter I. Therefore a backfit analysis is not required for this rule.

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and verified this determination with the Office of Information and Regulatory Affairs of OMB.

When adopting the Regulatory Flexibility Program in 2001, NCUA amended its appraisal rule to raise the threshold for requiring an appraisal for real estate-related financial transactions from those over $100,000 to those over $250,000. 66 FR 58656, 58662, Nov. 23, 2001. NCUA also removed the provision creating a different threshold for appraisals related to member business loans. Id. The amendment, therefore, raised the appraisal threshold for all real estate-related financial transactions, including member business loans, to $250,000. The NCUA Board found that the raised appraisal threshold for a member business loan was consistent with the regulatory provisions adopted by the Federal banking agencies.

In the 2001 rulemaking, NCUA amended the transaction value threshold in paragraph (a)(1), the paragraph that requires certain types of transactions to have appraisals. 12 CFR 722.3(a). NCUA did not adjust the corresponding amount in paragraph (b)(2), the paragraph that determines the type of appraiser for certain nonresidential transactions, namely, member business loans. 12 CFR 722.3(b)(2). This has caused some confusion. Under paragraph (b)(2), only nonresidential transactions with a transaction value over $250,000 require an appraisal by a state-certified appraiser. 12 CFR 722.2(e), 722.3(a)(1), 722.3(b)(2). Some credit unions, however, have read the requirement in paragraph (b)(2) as requiring an appraisal for transactions with a value over $50,000.

This amendment conforms the transaction value that triggers the requirement for a state-certified appraiser's appraisal in paragraph (b)(2) to the transaction value threshold in paragraph (a)(1), which initially determines if the rule requires any appraisal. The amendment clarifies that a federally insured credit union must have an appraisal prepared by a state-certified appraiser for a nonresidential transaction if the value of the transaction exceeds $250,000.

The amendment to the final rule is technical rather than substantive. NCUA finds good cause that notice and public comment are unnecessary under sec. 553(b)(B) of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B).

NCUA also finds good cause to dispense with the 30-day delayed effective date requirement under sec. 553(d)(3) of the APA. The rule is technical rather than substantive. The rule will, therefore, be effective immediately upon publication of this notice.

An initial regulatory flexibility analysis under the Regulatory Flexibility Act is required only when an agency is required to publish a general notice of proposed rulemaking for any proposed rule. 5 U.S.C. 603. As noted previously, NCUA has determined that it is unnecessary to publish a notice of proposed rulemaking for this rule. Accordingly, an initial regulatory analysis is not required. Moreover, since this final rule imposes no new requirements and makes only a technical amendment, NCUA has determined and certifies that this rule will not have any significant economic impact on a substantial number of small credit unions (primarily those under $1 million in assets).

Title II of the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121) provides, generally, for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the Administrative Procedures Act. 5 U.S.C. 551. The Office of Management and Budget has reviewed this rule and has determined that for purposes of the Small Business Regulatory Enforcement Fairness Act of 1996 it is not a major rule.

NCUA has determined that the final rule does not increase paperwork requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and regulations of the Office of Management and Budget.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their regulatory actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. NCUA has determined that this final rule does not constitute a policy that has federalism implications for purposes of the executive order.

SBA published a direct final rule in the Federal Register on August 13, 2002, (67 FR 52597) amending its Small Business Size Regulations by incorporating the Office of Management and Budget's (OMB) 2002 modifications of the North American Industry Classification System (NAICS) into its table of small business size standards. The August 13, 2002, Federal Register publication omitted dollar signs for many of the monetary-based size standards. Therefore, SBA published the September 6, 2002 (67 FR 56905) correction. It included the entire table of size standards, with monetary-based and employee-based size standards in different columns for ease of use.

The table omitted the heading “Subsector 454—Nonstore Retailers” in the table, and SBA is therefore adding it with this correction. It does not affect any NAICS code or size standard.

Also, SBA inadvertently appended footnote 9 and footnote 10 to the industry descriptions of NAICS codes 531210 and 531311. However, footnote 9 correctly applies to the description of the “Exception” in NAICS 531190, and footnote 10 correctly applies to the industry description of NAICS 531210. There is no footnote to NAICS 531311. The “Footnotes” section at the end of the table correctly matches footnote 9 to the description of the exception to NAICS 531190 and footnote 10 to the industry description of NAICS 531210.

In FR Doc. 02-22200 published on September 6, 2002 (67 FR 56905) make the following two corrections:

The FAA and Hartzell Propeller Inc. have been reviewing and investigating reports of current design propeller blade thrust bearings, P/N's C-2882-1, C-2882-2, and C-7075, found fractured during disassembly, one or more blades becoming jammed in position during operation, pitch change fork fractures causing loss of blade pitch control, and excessive vibration. The current design thrust bearings have demonstrated a tendency to have brittle fracture and reduced strength characteristics, for which the cause has yet to be determined. This action requires replacement of the current design propeller blade thrust bearings, P/N's C-2882-1, C-2882-2, and C-7075, with a new design propeller blade thrust bearing, P/N C-7438, and a 10X magnification-assisted visual inspection and ECI of propeller hubs for cracks. This amendment is prompted by reports of fractured thrust bearings observed during disassembly, one or more blades becoming jammed in position during operation, pitch change fork fractures causing loss of blade pitch control, and excessive vibration. This condition, if not corrected, could result in loss of aircraft control due to loss of blade pitch control, inability to fully feather the propeller, hub fracture, and blade release.

The FAA has reviewed and approved the technical contents of the following Hartzell Propeller Inc. Alert Service Bulletins (ASB's):

• ASB HD-ASB-61-026, dated August 6, 2001, that describes the schedule and procedures for replacing P/N's C-2882-1, C-2882-2, and C-7075 propeller thrust bearings with blade thrust bearing P/N C-7438.

• ASB HD-ASB-61-023, Revision 1, dated May 23, 2001, that describes procedures for 10X magnification-assisted visual inspections of the O-ring groove and hub-half and parting surface areas and ECI inspections of propeller hubs, P/N D-5108-( ), for cracks in the bearing retention radius.

Since an unsafe condition has been identified that is likely to exist or develop on other Hartzell Propeller Inc. model HD-E6C-3( ) propellers of the same type design, this AD is being issued to prevent loss of aircraft control due to loss of blade pitch control, inability to fully feather the propeller, hub fracture, and blade release. This AD requires within 50 hours time-in-service (TIS) after the effective date of this AD, or nine months after the effective date of this AD, or when the propeller is next disassembled after the effective date of this AD, whichever occurs earliest:

• Replacement of the current design propeller blade thrust bearings P/N's C-2882-1, C-2882-2, and C-7075 with a new design propeller blade thrust bearing P/N C-7438.

• 10X Magnification-assisted visual inspections and ECI of propeller hubs for cracks.

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

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

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

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

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

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

On January 24, 1996, the Department added a new section 41.83 at 22 CFR ( see 61 FR 1837) to implement section 130003 of the Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103-322). This Act amended section 101(a)(15) of the Immigration and Nationality Act by adding a new category of nonimmigrants for aliens determined by the Attorney General to have critical and reliable information concerning a criminal organization or enterprise. The program, as originally enacted, was to terminate on September 12, 1999. The program was extended for an additional two years by Public Law 106-104 on November 13, 1999 and was made permanent by Public Law 107-45 on October 1, 2001.

The Department's interim rule (61 FR 1837) solicited comments from the public to be received by March 25, 1996. No comments were received.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. This rule is being promulgated without an NPRM due to the short time frame allowed between the submission of the request by the Illinois Department of Transportation to temporarily change the regulations governing the drawbridges on the Illinois Waterway at Joliet, Illinois and the start date of repairs to the Ruby Street Bridge. Structural repairs to the Ruby Street Bridge are scheduled to begin immediately. Thus, following normal rulemaking procedures would be impractical. Delaying implementation of the regulation will result in unnecessarily prolonged traffic management problems within the City of Joliet, Illinois because vehicle traffic will be unable to cross the Ruby Street Bridge while structural repairs are made.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . This rule should be made effective in less than 30 days due to the short time frame allowed between the submission of the request by the Illinois Department of Transportation to temporarily change the regulations governing the drawbridges on the Illinois Waterway at Joliet, Illinois and the start date of repairs to the Ruby Street Bridge. Structural repairs to the Ruby Street Bridge are scheduled to begin immediately. Thus, following normal rulemaking procedures would be impractical. Delaying implementation of the regulation will result in unnecessarily prolonged traffic management problems within the City of Joliet, Illinois because vehicle traffic will be unable to cross the Ruby Street Bridge while structural repairs are made.

Due to routine maintenance to the Ruby Street Bridge, mile 288.7, Illinois Waterway, the bridge must remain in the open to navigation (closed to motor vehicle traffic) position at all times. As a result, the Illinois Department of Transportation requested a temporary change to the current regulations for the remaining four bascule leaf drawbridges within the City of Joliet that carry vehicular traffic across the Illinois Waterway. Increasing the hours that the four remaining bridges are closed to navigation and available for vehicle use only during peak traffic periods will reduce traffic jams in the City of Joliet while having minimal impact on vessel traffic on the Illinois Waterway. Repairs to the Ruby Street Bridge are expected to be complete by December 16, 2002.

The current regulations permit the bridges to remain closed to navigation during commuter hours of 7:30 a.m. to 8:30 a.m. and 4:15 p.m. to 5:15 p.m., Monday through Saturday. By increasing the time the remaining bridges may remain closed to navigation by thirty minutes in the morning and afternoon, traffic buildup in the city will be greatly alleviated. This regulation will result in these bridges, with exception of the Ruby Street Bridge, being closed to navigation from 7:30 a.m. to 9 a.m. and from 4 p.m. to 5:30 p.m., Monday through Saturday. The Ruby Street Bridge will be in the open to navigation position for structural steel repairs. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. This temporary drawbridge operation regulation has been coordinated with commercial waterway operators. No objections to the proposed temporary rule were raised.

This 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).

The Coast Guard expects the economic impact of the temporary rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The temporary rule will have a negligible impact on vessel traffic. The primary users of the Illinois Waterway in Joliet are commercial towboat operators. On average, eight vessels per day transit the affected bridges. Of these, one or two may have to adjust their speed and schedules to arrive at the affected bridges prior to, or after, the times the bridges are closed to navigation.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Any individual that qualifies or, believes he or she qualifies as a small entity and requires assistance with the provisions of this rule, may contact Mr. Roger K. Wiebusch, Bridge Administrator, Eighth Coast Guard District, Bridge Branch, at (314) 539-3900, extension 2378.

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

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

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

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

This rule will not 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 rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

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

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

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

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. Promulgation of changes to drawbridge regulations has been found not to have significant effect on the human environment. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. Final approval and permitting of this event were not issued in time to engage in full notice and comment rulemaking. Publishing a NPRM and delaying the effective date would be contrary to the public interest since the event would occur before the rulemaking process was complete.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . In addition to the reasons stated above, it would be contrary to the public interest not to publish this rule because the event has been permitted and participants and the public require protection.

The Southern California Speedboat Club is sponsoring the Bluewater Resort and Casino Thanksgiving Regatta, which is held on the Lake Moovalya region of Parker, AZ. This temporary safety zone is necessary to provide for the safety of the participants, crew, spectators, sponsor vessels, and to protect participating vessels of the Bluewater Casino and Resort Thanksgiving Regatta. This temporary safety zone is also necessary to protect other vessels and users of the waterway.

The following area is a temporary safety zone: the portion of the Colorado River from Headgate Dam to 0.5 nautical miles north of Bluewater Marina, Parker, Arizona.

The Coast Guard proposes to establish one safety zone that will be enforced everyday from 6 a.m. (PST) to 6 p.m. (PST) from November 29, 2002, to December 1, 2002. This safety zone is necessary to provide for the safety of the crews, spectators, and participants of the Bluewater Resort and Casino Thanksgiving Regatta and to protect other vessels and users of the waterway. Persons and vessels will be prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. 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 rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary because of its limited duration of 12 hours per day for a period of three days and the limited geographic scope of the safety zone.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities because this safety zone is limited in scope and duration (in effect for only 12 hours per day for a period of three days, from November 29, 2002, to December 1, 2002). In addition the Coast Guard will publish local notice to mariners (LNM) before the safety zone is enforced.

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

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

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

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

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

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

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

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

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

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation because we are proposing to establish a safety zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

The Federal Civil Penalties Inflation Adjustment Act of 1990 (1990 Act), Public Law 101-410, 104 Stat. 890, 28 U.S.C. 2461 NOTE, as amended by the Debt Collection Improvement Act of 1996 (Act), Public Law 104-134, April 26, 1996, requires the inflation adjustment of civil monetary penalties (CMP) to ensure that they continue to maintain their deterrent value. The Act requires that not later than 180 days after its enactment, October 23, 1996, and at least once every four years thereafter, the head of each agency shall, by regulation published in the Federal Register , adjust each CMP within its jurisdiction by the inflation adjustment described in the 1990 Act. The cost-of-living adjustment is the percentage (if any) for each CMP by which the Consumer Price Index for all urban consumers (CPI), published annually by the Department of Labor, for the month of June of the calendar year preceding the adjustment, exceeds the CPI for the month of June of the calendar year in which the amount of the CMP was last set or adjusted pursuant to law. Nevertheless, the first adjustment to a CMP may not exceed 10 percent of that penalty amount. Any increased penalties shall apply only to violations that occur after the date on which the increase takes effect. 33 U.S.C. 1232(a) imposes a maximum $25,000 civil penalty for a violation of a regulation issued under the authority of the PWSA, which includes the Seaway Regulations and Rules in 33 CFR part 401. The penalty was set in 1978. Under the Act, the penalty amount was adjusted in 1996 to $27,500. The CPI for June 1996, was 156.6. The CPI for June 2002, is 179.2. The inflation factor, therefore, is 179.2/156.6 or 1.15. The maximum penalty amount after the increase and statutory rounding would be $31,625 (1.15 X 27,500). Accordingly, paragraph (a) of section 401.102 is being amended to change the amount of the penalty from $ 27,500 to $31,625.

This final rule is exempt from Office of Management and Budget review under Executive Order 12866 because it is limited to the adoption of statutory language, without interpretation. As stated above, the provisions contained in this final rulemaking set forth the inflation adjustments in compliance with the Act for a specific, applicable CMP under the authority of the Corporation. The great majority of individuals, organizations, and entities addressed through the Seaway Regulations and Rules do not commit violations and, as a result, we believe any aggregate economic impact of this revision will be minimal, affecting only those who violate the regulations. As such, the final rule and its inflation adjustment should have no effect on Federal and State expenditures. This final rule has also been evaluated under the Department of Transportation's Regulatory Policies and Procedures and the proposed regulation is not considered significant under those procedures and its economic impact is expected to be so minimal that a full economic evaluation is not warranted.

The Saint Lawrence Seaway Development Corporation certifies that this final rule will not have a significant economic impact on a substantial number of small entities. The St. Lawrence Seaway Regulations and Rules primarily relate to the activities of commercial users of the Seaway, the vast majority of whom are foreign vessel operators. Therefore, any resulting costs will be borne mostly by foreign vessels.

This final rule does not require an environmental impact statement under the National Environmental Policy Act (49 U.S.C. 4321, et seq. ) because it is not a major federal action significantly affecting the quality of human environment.

The Corporation has analyzed this final rule under the principles and criteria in Executive Order 12612 and has determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The Corporation has analyzed this proposed rule under title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48) and determined that it does not impose unfunded mandates on State, local, and tribal governments and the private sector requiring a written statement of economic and regulatory alternatives.

This proposed regulation has been analyzed under the Paperwork Reduction Act of 1995 and does not contain new or modified information collection requirements subject to the Office of Management and Budget review.

Notice and an opportunity for public comment under the Administrative Procedure Act (APA) (5 U.S.C. 553) are waived. The APA provides an exception to the notice and comment procedures when an agency finds there is good cause for dispensing with those procedures because they are impracticable, unnecessary, or contrary to the public interest. The Corporation has determined under 5 U.S.C. 553(b)(3) that good cause exists for dispensing with the notice of proposed rulemaking and public comment procedures for this rule. Specifically, this rulemaking comports with the statutory authority in the Act with no issues of policy discretion. Accordingly, the Corporation finds that the opportunity for prior comment is unnecessary and contrary to the public interest and is issuing this revised regulation as a final rule that will apply to all future cases under this authority.

In this final rulemaking, Environmental Protection Agency (EPA) is responding to comments made on EPA's proposed rulemaking published August 21, 2002 (67 FR 54159). In the August 21, 2002, Federal Register notice, EPA proposed to determine that the Birmingham marginal ozone nonattainment area (hereinafter referred to as the Birmingham area) attained the 1-hour ozone National Ambient Air Quality Standard (NAAQS) by November 15, 1993, the date required by the Clean Air Act (CAA) to be used for making this determination since it is Birmingham's attainment date.

On August 21, 2002, EPA published a proposed rule to determine that the Birmingham marginal ozone nonattainment area (hereinafter referred to as the Birmingham area) attained the 1-hour ozone National Ambient Air Quality Standard (NAAQS) by November 15, 1993, the date required by the Clean Air Act (CAA). The Birmingham area is comprised of Jefferson and Shelby Counties. On July, 10, 2002, the United States District Court for the District of Columbia concluded that EPA failed to exercise its non-discretionary duty to make a final attainment determination for the Birmingham area by May 15, 1994. The Court required that EPA make a formal attainment determination within 120 days from date of opinion. Sierra Club v. Whitman, No. 00-2206 (D.D.C. July 10, 2002). Therefore, in response to the Court's order, EPA is publishing this rule.

EPA received adverse comments from one commenter regarding the proposed determination that Birmingham attained the 1-hour ozone standard as of November 15, 1993. The commenter, Earthjustice, submitted the comments on behalf of the Sierra Club Alabama Chapter, the Sierra Club Cahaba Group, the Alabama Environmental Council, and Alabama Physicians for Social Responsibility. They raised a number of policy and legal issues that EPA has considered and is responding to below.

Comment 1: According to the commenter, “EPA's proposal flies in the face of the Clean Air Act's mandate to protect * * * people from the health threats posed by smog.”

Response: EPA is not failing to protect the people of Birmingham from the health threats posed by ozone. As described below in response to Comment 5, EPA has already taken steps to require the State of Alabama to deal with Birmingham's ozone problems and the State has taken the necessary steps and adopted additional significant control measures that will be implemented no later than the spring of next year. Furthermore, the State has demonstrated that those additional measures will lead to attainment of the 1-hour ozone standard in Birmingham by November of next year, which is the date for attainment that EPA determined was as expeditiously as practicable. That EPA disagrees with the commenter about the precise statutory mechanism to utilize in achieving attainment of the 1-hour ozone standard in Birmingham does not mean that EPA is not acting to fulfill the objective of the Clean Air Act of achieving attainment of the ozone standard as expeditiously as practicable. To the contrary, EPA has already acted to fulfill that objective and is protecting the people of Birmingham from ozone pollution.

Comment 2: The commenter asserts that EPA proposed to find that the Birmingham area “has attained” the 1-hour ozone standard “solely on the basis of air quality data in the 1991-93 period,” even though Birmingham has violated the standard since then and continues to do so. The commenter concludes that Birmingham has not attained the ozone NAAQS and that for “EPA to assert otherwise, based on air quality conditions ten years or more ago, defies reality.”

Response: The pertinent statutory provision of the Clean Air Act clearly and explicitly establishes the criteria to be applied in determining whether a 1-hour ozone nonattainment area classified under subpart 2 of part D of Title I of the Clean Air Act has failed to attain the 1-hour standard and must be reclassified by operation of law. Section 181(b)(2)(A) provides that: “Within 6 months following the applicable attainment date (including any extension thereof) for an ozone nonattainment area, the Administrator shall determine, based on the area's design value (as of the attainment date), whether the area attained the standard by that date. * * * [A]ny area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law * * *” (Emphasis added.) Thus, section 181(b)(2) clearly directs EPA to determine whether an area attained the ozone standard by its attainment date based on the area's design value as of that date. The only areas subject to mandatory reclassification under section 181(b)(2) are those that the Administrator finds have “not attained the standard by that date.” Whether or not Birmingham is attaining the ozone standard today or, for that matter, any date after its November 15, 1993 attainment date, is simply irrelevant to the determination of whether Birmingham had attained as of November 15, 1993. EPA is not purporting to determine that the Birmingham area “has attained” the standard in the sense that the area came into attainment and continues to be in attainment today; EPA is simply following the words of the statute to determine whether the Birmingham area attained the standard as of its November 15, 1993 attainment date. The fact that Birmingham violated the standard after November 15, 1993, does not, and cannot, detract from the conclusion that Birmingham “attained the standard by” its attainment date. Contrary to the suggestion of the commenter, the Act simply does not call for EPA, when acting pursuant to section 181(b)(2)(A), to determine whether an area is still attaining the standard after its attainment date. In contrast, in determining which classification an area being reclassified should receive, section 181(b)(2)(A)(ii) clearly and explicitly requires EPA to determine the design value of an area as of the time of the Federal Register notice identifying an area as having failed to attain by its attainment date. Clearly, Congress knew how to distinguish between directing EPA to make one determination as of the area's attainment date and a second determination as of the date of the Federal Register notice announcing the first determination. The commenter, however, advances an interpretation of the Act that it asserts EPA is compelled to follow that conflates one provision of a statute setting forth one criterion with another provision setting forth a different criterion. The validity and reasonableness of EPA's interpretation is supported by the 1998 decision of the U.S. District Court for the Northern District of Alabama in Vahle v. Browner (Memorandum Opinion, dated Sept. 4, 1998) concerning the reclassification of Birmingham. In that case, the plaintiff, just like the commenter, argued that section 181(b)(2) “should be interpreted so as to require the EPA to reclassify an area that “backslides” into nonattainment after its attainment date.” The court ruled, however, that “the clear wording of the statute prevents such interpretation. The statute provides that the determination shall be ‘whether the area attained the standard by that date. ’ 42 U.S.C. 7511(b)(2)(A) (emphasis added). There can be no question that the date referred to is the attainment date established in 42 U.S.C. 7511(a)(1), November 15, 1993, in the case of the Jefferson/Shelby area. Therefore, the statute is not remotely subject to the interpretation suggested by the plaintiff.” (Memorandum Opinion at 5-6.) EPA's interpretation is clearly a reasonable one.

Comment 3: The commenter claims that EPA's proposed action is based on a “crabbed reading” of the Clean Air Act. The commenter asserts that EPA's reading of the language of section 181(b)(2)(A) of the Act to limit the pertinent data to that for the 1991-93 period “improperly ignores subsequent language in the same subsection requiring reclassification of any area that ‘the Administrator finds has not attained the standard by that date.’ Thus, the issue is whether the Administrator can currently ‘find’ that the area ‘has attained’ the standard—not whether the area ‘was’ meeting the standard at some time in the past. Here, EPA cannot possibly find that the Birmingham area ‘has attained’ the standard by the attainment date, because that area continues to violate the standard.” The commenter further asserts that, in the context of redesignations to attainment, EPA stated that the statutory phrase “has attained” means that an area must be attaining the standard at the time of redesignation to attainment. According to the commenter, the “very same analysis applies here. EPA must reclassify any area that the Administrator finds ‘has not’ (in the present tense) attained the standard.”

Response: As explained more fully in response to Comment 2, EPA's reading of the Act is fully consistent with its language and with the opinion in the Vahle case, which rejected the view espoused by the commenter as an interpretation to which the Act is “not remotely subject.” As for the commenter's reference to redesignations to attainment, the statutory language that is pertinent to that issue differs from the language of section 181(b)(2)(A) regarding reclassifications. Section 107(d)(3)(e) prohibits EPA from redesignating an area from nonattainment to attainment unless it determines that the area “has attained” the standard. In contrast to the reclassification provision, which specifies the attainment date as the point of reference for making the attainment determination, section 107(d)(3)(E) sets no date to use for making that determination. Furthermore, in light of the fact that an attainment area is defined in section 107(d)(1) as an area that “meets” the standard it is clear that for EPA to take an action affirmatively designating an area as attainment it must be meeting the standard at the time of the decision to designate it as attainment. Section 181(b)(2)(A), however, expressly directs EPA to determine whether an area attained as of a specified date in the past, its attainment date.

Comment 4: The commenter asserts that language in section 181(b)(2)(A) expressly stating that EPA's determination of attainment is to be based on the area's design value as of the attainment date, “[b]y its terms * * * only applies to attainment determinations made within 6 months of the attainment date.” The commenter states that “nowhere did Congress suggest that EPA could ignore post-attainment date violations if the agency delayed its attainment determination substantially beyond the 6-month window.” The commenter also argues that even if EPA's reading of the first sentence of section 181(b)(2)(A) were correct “the second sentence of that subsection plainly requires reclassification to take place where the Administrator finds that the area “has not attained” by that date. Thus, even if EPA finds that the area was meeting the standard on November 15, 1993, the second sentence of section 181(b)(2)(A) still requires reclassification because, as EPA itself has found (and as the data unequivocally shows), the area “has not attained.’ ”

Response: EPA does not believe that Congress intended for the language regarding determining attainment as of the attainment date not to apply when an attainment determination occurs more than six months after the attainment date. There is no statutory language supporting the commenter's reading that eliminates this language from the Act when EPA takes action more than six months after an area's design value. Furthermore, contrary to the commenter's assertion, the second sentence of section 181(b)(2)(A) does not somehow override the language of the first sentence and require reclassification if an area slips back into nonattainment after its attainment date. Rather, the second sentence reinforces the validity of EPA's view of the straightforward language of the first sentence by stating that “[e]xcept for any Severe or Extreme area, any area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law * * *” (Emphasis added.) EPA is finding that Birmingham attained by “that date,” its November 15, 1993 attainment date, and, consequently, no reclassification occurs regardless of whether the area slipped back into nonattainment after that date. See also Responses to Comments 2 and 3.

Comment 5: According to the commenter, EPA's approach is “wholly inconsistent with the Act's structure and purpose. To accept EPA's reading, one must conclude that Congress did not care about unhealthful air after 1993, and meant to forever exempt such areas from reclassification even if their air pollution problems had not actually been cured.” The commenter further contends that there is no “plausible basis for denying to Birmingham residents the same level of air quality protection mandated for” other cities.

Response: EPA's approach is not only consistent with the express language of section 181(b)(2), it is consistent with the Clean Air Act's structure and purpose. Moreover, accepting EPA's reading of this provision does not mean that either Congress or EPA does not care about unhealthful air in Birmingham after 1993 and does not deny to the residents of Birmingham the same level of air quality protection that is afforded to the other residents of the United States. This comment would be accurate only if Congress precluded EPA from dealing with air quality problems in areas such as Birmingham. Congress has not done so, however, and EPA has exercised its authority available under other provisions of the Clean Air Act to require that steps be taken to improve air quality in Birmingham. In fact, EPA undertook a rulemaking action to require the State of Alabama to submit a SIP revision to provide for attainment of the 1-hour ozone standard in Birmingham. EPA took final action on this rulemaking on October 19, 2000. 65 FR 64352 (Oct. 27, 2000). The State of Alabama submitted a SIP revision to provide for attainment based on photochemical grid modeling (which is only required by the Clean Air Act for ozone nonattainment areas classified as serious or higher) on November 1, 2000. The attainment demonstration relied upon additional fuel controls and controls on emission controls on two major power plants and demonstrated that attainment would occur by November 15, 2003, on the basis of these additional control measures, which are to be implemented by May 2003. EPA approved that SIP submission on October 24, 2001. 66 FR 56223 (Nov. 7, 2001). Consequently, even though EPA is not reclassifying Birmingham as the commenter desires, EPA and the State of Alabama have taken steps to rectify the problems with Birmingham's SIP and to achieve attainment of the 1-hour ozone standard as expeditiously as practicable, thereby affording Birmingham's citizens the health protections of that air quality standard.

Comment 6: The commenter claims that in Whitman v. American Trucking Ass'ns , “the Supreme Court soundly rejected the very sort of evasion of the Act's reclassification provisions that EPA is proposing here.” According to the commenter, that decision held “that EPA could not construe the Act in a way that renders Subpart 2 “abruptly obsolete” * * * Yet that is precisely what the Agency proposes here.” In the view of the commenter, EPA's reliance on other provisions of the Act, such as section 110, is an approach that “effectively nullifies the Subpart 2 reclassification provisions as to the affected area” and claims that such an approach “was squarely rejected by the Supreme Court in Whitman.”

Response: The Supreme Court's decision in Whitman v. American Trucking Ass'ns , 431 U.S. 537, 121 S.Ct. 903 (2001), did not grapple with the issue presented in this rulemaking. At issue in Whitman was the implementation regime for the revised ozone standard, the 8-hour ozone standard promulgated by EPA in 1997. There, the Court dealt with the issue of “whether Subpart 1[of Part D] alone (as the agency determined), or rather Subpart 2 or some combination of Subparts 1 and 2, controls the implementation of the revised ozone NAAQS in nonattainment areas.” The Court ruled that EPA could not establish an implementation program for a new ozone NAAQS that eliminated subpart 2 but left it to the Agency to resolve ambiguities in the Clean Air Act concerning how subparts 1 and 2 interact with respect to the implementation of revised ozone standards. The Court did not deal with an issue of how a particular provision of subpart 2 should be interpreted and implemented, which is the issue in this rulemaking. In this rulemaking EPA is not seeking to supplant the provisions of subpart 2, it is merely applying those provisions in a way consistent with their language and a prior court decision interpreting the provisions at issue. The fact that EPA disagrees with the commenter's suggested interpretation of section 181(b)(2)(A) does not mean that EPA is effectively nullifying that provision, which, in EPA's review, provides for the reclassification of areas that fail to attain as of their attainment date.

Comment 7: The commenter also claims that EPA's reading of the Clean Air Act leads to absurd results because an area that was violating the standard on November 15, 1993, would be subject to more stringent requirements than Birmingham even if its air were cleaner than Birmingham's after 1993. Another absurd result that EPA's approach leads to in the eyes of the commenter is the possibility that Birmingham would remain classified as marginal, while other areas with better air quality could be reclassifed up to severe status “solely because they happened to be in violation on November 15, 1993.”

Response: EPA's approach does not lead to absurd results. EPA's approach merely follows the language of the statute and gives full force and effect to the clearly expressed intent of Congress. If EPA's approach meant that nothing could be done to address air quality problems in Birmingham because the area was not reclassified, then there might be legitimate questions that could be raised about the validity of such an approach, which would mean that the fundamental objective of attainment of the ozone standard could not be achieved. That is not the case, however. As described above in response to Comment 5, EPA exercised its statutory authority to issue a SIP call to the State of Alabama requiring an attainment demonstration for Birmingham. The State then submitted that SIP, which was based on photochemical modeling and which contained significant additional control measures. EPA approved that SIP and the SIP for Birmingham now provides for attainment of the 1-hour ozone standard next year. Also, the Clean Air Act clearly contemplates that areas that once achieved attainment of the ozone standard may be categorized differently than areas that have not achieved attainment even if an area that was once clean violates the standard again. Section 175A(d), which applies to areas that were once designated nonattainment but are seeking redesignation to attainment after attaining a standard, requires that such areas submit SIP revisions containing contingency provisions “to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area.” Neither section 175A nor any other provision of the Act establishes a mandatory duty for EPA to redesignate an attainment area back to nonattainment status after a violation, although such action by EPA is authorized by section 107(d)(3)(A). This is the case even though such an area could have air quality worse at some point than another area that had remained designated nonattainment and may have even been classified at a higher level than the area that had been redesignated to attainment. Clearly, Congress expected that there would be areas that had been redesignated to attainment that were in fact violating a standard but did not require that such areas be redesignated to nonattainment. Instead of compelling EPA to change their designation status, Congress required such areas to have provisions in their SIPs to address the air quality problems (the contingency measures). Thus, Congress clearly expected that two areas could be in different categories (one attainment and one nonattainment) even though the area designated attainment might have worse air quality than the area designated nonattainment. Congress also expected that the area designated attainment would have SIP provisions designed to address the air quality problems. EPA is treating Birmingham in an analogous fashion. EPA does not view Birmingham, having attained the standard by its attainment date, as being subject to the mandatory reclassification provisions of section 181(b)(2); EPA, however, did require the State of Alabama to revise the Birmingham SIP to address the air quality problems Birmingham was experiencing and it has done so.

Comment 8: The commenter asserts that EPA has relied on post-attainment date conditions in making attainment and reclassification determinations under the Act and that it is arbitrary, capricious, and contrary to law for the Agency to find areas in attainment and waive reclassification, but refuse to consider post-attainment date conditions to find areas in nonattainment. The commenter offers two examples of this. One is where EPA decided not to reclassify Kent & Queen Anne's County in Maryland from marginal to moderate when it had come into attainment of the 1-hour ozone standard a year after its attainment date, and the second was EPA's decision not to reclassify the Liberty Borough, Pennsylvania PM-10 area from moderate to serious when it had attained by the time of EPA's decision.

Response: The fact that EPA did not reclassify certain other areas that were in violation as of their attainment dates but attained shortly thereafter does not compel the result that EPA reclassify areas that did attain by their attainment date on the basis of post-attainment date information. In the first situation, where an area attains after its attainment date, the purpose of the reclassification has been fulfilled because the area achieved attainment of the standard (albeit somewhat late). In the second situation, for the reasons explained in response to other comments, the language of the Act requires that only areas that failed to attain as of their attainment date be reclassified. That EPA may not have acted to reclassify all such areas does not lead to the conclusion that EPA must now consider post-attainment date information in every case and make reclassification decisions on the basis of such data.

Comment 9: The commenter asserts that since EPA has elsewhere recognized that a nonattainment area with clean air can fall back into nonattainment and must be subject to the enforcement of the Act's nonattainment area requirements. Citing EPA's “clean data” policy, the commenter argues that the post-attainment deadline violations in Birmingham “compel an EPA finding of nonattainment and reclassification.”

Response: As explained elsewhere in the responses to comments, the post-attainment deadline violations in Birmingham do not compel a finding of nonattainment and reclassification. In addition, the “clean data policy” to which the commenter refers is not relevant to the reclassification provisions of the Act and does not compel such a finding or action. The “clean data” policy concerns other provisions of the Act, such as the attainment demonstration and reasonable further progress requirements, and sets forth EPA's view that the SIP submission requirements contained in those provisions may be suspended for so long as the purpose of those provisions is being achieved, i.e. , for so long as the area is attaining the standard. Under that policy, if an area violates the standard during the period in which the requirements are suspended, the requirements are to be reimposed. This simply does not involve the reclassification provisions and their attendant requirements to impose additional requirements on areas that fail to attain by their attainment dates.

Comment 10: Even if the attainment status of Birmingham as of November 15, 1993, were the only relevant issue, the commenter asserts that the “post-1993 data strongly suggests that the area was not in fact in attainment on that date.” The commenter claims that the only monitor in Shelby County recorded 2 exceedances in 1993 and two other monitored readings of .124 ppm—“barely within the NAAQS, and within only because of EPA's ‘rounding’ convention.” The commenter asks EPA to determine whether the actual values were .1245 or higher, which the commenter states would mean they should have been reported as .125, indicating a violation. The commenter asserts that, based on the post-1993 monitored violations and the “limited size” of the Birmingham monitoring network, “it is highly unlikely that the area was in fact ‘in attainment’ as of November 15, 1993.” Citing a statement made by EPA in 1997 that Birmingham is subject to ozone exceedances “whenever meteorological conditions are conducive to ozone formation,” the commenter claims that EPA “cannot rationally find that the Birmingham area was in fact ‘in attainment’ as of November 15, 1993.”

Response: EPA does not believe that the post-1993 data suggests that the Birmingham area was not attaining as of November 15, 1993. First, that data was affected by emissions levels in those years and meteorological conditions that occurred in the post-1993 period, which may or may not have been present in the 1991-93 period when the area attained. Thus, the fact that exceedances occurred in 1995 or 1996 does not suggest that unmonitored exceedances were occurring in the 1991-93 period. Second, the Birmingham monitoring network is not insufficient. The area's monitoring network met or exceeded the requirements of EPA's regulatory requirements for National Air Monitoring Stations (NAMS) and for State and Local Air Monitoring Stations (SLAMS) (contained in 40 CFR part 58 Appendix D). Third, as EPA has explained elsewhere, the “rounding convention” referred to by the commenter was established by EPA in guidance issued in 1977 and 1979, guidance that was carried forward by Congress in 1990 when it enacted section 193 of the Clean Air Act. Moreover, the rounding convention is perfectly consistent with the standard as defined in 40 CFR 50.9, which defines the 1-hour ozone standard as 0.12 parts per million (ppm), not .120 ppm or 120 parts per billion. Since the one-hour ozone standard is specified as two significant digits, the appropriate data handling convention is to round to two decimal places. See 67 FR 5152, 5160 (Feb. 4, 2002). Finally, EPA did examine the 1993 data as requested by the commenter and determined that 1-hour ozone data is stored to three decimal places in AIRS-AQS.

Comment 11: The commenter contends that not only must EPA reclassify Birmingham as a moderate area, it must reclassify the area as severe since the moderate and serious area attainment dates have passed and the area is still not attaining the standard.

Response: For the reasons given in response to the previous comments, EPA does not believe that it must reclassify Birmingham as a moderate area. Even if it were required to reclassify Birmingham as a moderate area at this time, whether it would have to reclassify the Birmingham area immediately as severe is open to question. In another case where EPA acted to reclassify a moderate ozone area as serious after the serious area attainment deadline of 1999 had passed, EPA determined that it would be appropriate to reclassify the area as serious and establish an attainment date satisfying the principle that the attainment date be as expeditiously as practicable even though that date post-dated the 1999 attainment date for serious areas. 66 FR 15578, 15584-85, 15587 (Mar. 19, 2001). In any event, as EPA is not reclassifying Birmingham, EPA is not taking any final action with respect to what a new classification for Birmingham should be and is not resolving that issue on a hypothetical basis.

Pursuant to Section 181(b)(2)(A) of the CAA, EPA is finalizing the determination that the Birmingham area has attained the 1-hour NAAQS for ozone by November 15, 1993, the date required by section 181(a)(1) of the CAA. This determination is based upon three years of complete, quality-assured, ambient air monitoring data for the years 1991-1993 which indicate that Birmingham area attained the 1-hour ozone NAAQS.

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

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the 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.

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 to this action since it is simply a determination that Birmingham was in attainment of the 1-hour ozone NAAQS as of November 15, 1993. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 3, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001 et seq. ; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives a 6-month, 90-day, and 30-day notification addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.

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

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless they take remedial action.

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

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987 Comp.; p. 252.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991 Comp.; p. 309.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

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

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

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

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

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

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

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

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

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

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

FEMA makes the final determinations listed below of BFEs and modified BFEs for each community listed. The proposed BFEs and proposed modified BFEs were published in newspapers of local circulation and an opportunity for the community or individuals to appeal the proposed determinations to or through the community was provided for a period of 90 days. The proposed BFEs and proposed modified BFEs were also published in the Federal Register .

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

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

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

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

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

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

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

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

Executive Order 12778, Civil Justice Reform . This proposed rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.