What events have caused this AD? The FAA received a report of an incident that occurred during a flight arriving in Toronto, Ontario. A change in the flight management computer (FMC) had been made to the original flight plan changing the altitude constraint to 8,000 feet-11,000 feet. However, the flight management system (FMS) retained the altitude constraint of the original flight plan of 10,000 feet-14,000 feet. The pilot was unaware of this situation occurring, which resulted in the descent of the airplane beyond the published altitude constraint on the arrival procedure.

When the FMC is operating correctly and a change is made, the FMS allows the pilot to delete information associated with a procedure or flight plan by deleting the procedure or by replacing the procedure.

Rockwell Collins FMC-4200, FMC-5000, and FMC-6000 flight management computers could be installed on, but not limited to, the following aircraft:

• Raytheon Model Beechjet 400A and Model 400T (T-1A) airplanes;

• Bombardier Model CL-600-2B19 Regional Jet Series 100 airplanes; and

• Bombardier Model CL-600-2B16 (variant CL-604) airplanes.

What is the potential impact if FAA took no action? As described above, such erroneous altitude constraints retained by the FMS could cause the pilot to fly the airplane out of the range of the correct altitude constraint. This condition could result in air traffic control or the pilot making flight decisions that put the airplane in unsafe flight conditions.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to Rockwell Collins FMC-4200, FMC-5000, and FMC-6000 flight management computers (FMC) that are installed on airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on July 10, 2002 (67 FR 45678). The NPRM proposed to require you to remove the affected FMC unit and replace it with a new FMC unit or an FMC unit that has been modified to correct a problem with the flight management system (FMS) accepting new information when an existing procedure or flight plan is changed.

Was the public invited to comment? The FAA encouraged interested persons to participate in the making of this amendment. The following presents the comments received on the proposal and FAA's response to each comment:

What is the commenter's concern? Two commenters state that there are numerous part numbers associated with each FMC model number that are not affected by the proposed AD. The commenters state that only seven part numbers are actually affected by the proposed AD as specified in Rockwell Collins Operator Bulletin 99-11, dated September 1999. The way the proposed AD is currently written, an owner/operator of an aircraft with any of the specified model FMCs installed would be subject to the proposed AD. Therefore, adding specific affected part numbers in the AD will significantly reduce the burden on owners/operators of aircraft equipped with the specified FMC model.

What is FAA's response to the concern? We concur with the commenters and will clearly identify the seven affected FMC part numbers in the AD.

What is the commenter's concern? The corrective action required is to modify the affected FMC unit. Only a Rockwell Collins Service Center is authorized to modify (rework) the affected FMC units. The modification includes changing the FMC part number when the unit is reworked. Therefore, it is irrelevant whether an owner/operator has a reworked unit or a newly manufactured unit installed provided the part number is correct.

What is FAA's response to the concern? We concur with the commenters and will include a list of acceptable replacement part numbers in the proposed AD. We will not reference the individual service bulletins in the AD.

What is the commenter's concern? The commenter states that all of the FMC corrective actions involve a change in the FMC part number. Before a part number has been certified for installation on the particular aircraft, through either the Type Certification or Supplemental Type Certification process, you should also determine whether additional avionics units need to be upgraded at the same time to be compatible with the selected FMC part number. The commenter suggests that a note to this effect be included in the AD.

What is FAA's response to the concern? We concur with the commenter and will include a note in the AD to address this concern.

What is FAA's final determination on this issue? After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for the additions discussed previously and minor editorial corrections. We have determined that these additions and minor corrections:

• Provide the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

How many airplanes does this AD impact? We estimate that 700 affected Rockwell Collins FMC-4200, FMC-5000, and FMC-6000 flight management computers could be installed on airplanes in the U.S. registry. Some airplanes have more than one unit installed.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to accomplish the modification:

What would be the compliance time of this AD? The compliance time of this AD is “within the next 24 calendar months after the effective date of this AD, unless already accomplished.”

Why is the compliance time presented in calendar time instead of hours time-in-service (TIS)? The compliance of this AD is presented in calendar time instead of hours TIS because the condition exists regardless of airplane operation. The FMS retention of invalid altitude constraint information could occur regardless of the number of times and hours the airplane was operated. For these reasons, FAA has determined that a compliance based on calendar time should be utilized in this AD in order to ensure that the unsafe condition is addressed in a reasonable time period on all airplanes that have an affected Rockwell FMC-4200, FMC-5000, or FMC-6000 flight management computer installed.

Does this AD impact various entities? The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

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

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 976.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, and 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expansive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers or 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 states the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

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

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

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

Regulatory Information

We did not publish a notice of proposed rulemaking (NPRM) for this rule. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM and, under 5 U.S.C. 553 (d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

On June 11, 2002 the Coast Guard published a temporary final rule entitled “Security Zones; Captain of the Port Houston-Galveston Zone” [COTP Houston-Galveston-02-011] (67 FR 39851). This rule was required to respond to security concerns within the Captain of the Port Houston-Galveston zone following the September 11, 2001 attacks on the World Trade Center towers in New York City and the Pentagon in Washington DC. October 15, 2002 is the expiration date of that rule.

National security and intelligence officials continue to warn that future terrorist attacks against United States interests are likely. The Captain of the Port Houston-Galveston is establishing a new temporary final rule that encompasses many of the same areas covered in the expiring rule. Any delay in making this new rule effective would be contrary to the public interest because immediate action is necessary to protect against the possible loss of life, injury, or damage to property.

On June 11, 2002, we published an NPRM entitled “Security Zones; Captain of the Port Houston-Galveston Zone” [COTP Houston-Galveston-02-009] (67 FR 39919). The NPRM proposed to replace the existing temporary security zones with permanent zones. The comment period for the NPRM expired on August 12, 2002. We received only two comments on this rule and both of these comments asked for information on how to comment on the proposed rule. As a result of these comments and to reflect changes in the size of the security zones in this rule the Coast Guard intends to issue a supplemental notice of proposed rule making and reopen the comment period.

On September 11, 2001, both towers of the World Trade Center and the Pentagon were attacked by terrorists. The President has continued the national emergencies he declared following those attacks (67 FR 58317 (Sep. 13, 2002) (continuing the emergency declared with respect to terrorist attacks); 67 FR 59447 (Sep. 20, 2002) (continuing emergency with respect to persons who commit, threaten to commit or support terrorism)). The President also has found pursuant to law, including the Magnuson Act (50 U.S.C. 191 et seq. ), that the security of the United States is and continues to be endangered following the terrorist attacks (E.O. 13,273, 67 FR 56215 (Sep. 3, 2002) (security of U.S. endangered by disturbances in international relations of U.S. and such disturbances continue to endanger such relations). In response to these terrorist acts, heightened awareness and security of our ports and harbors became necessary. To enhance security the Captain of the Port Houston-Galveston established temporary security zones published in the Federal Register on June 11, 2002 (67 FR 39851). The original rule established security zones within the ports of Houston, Bayport, Texas City and Freeport, TX.

In order to provide continuous protection while permanent zones are being promulgated through notice and comment rule making the Coast Guard is establishing a new temporary final rule for the ports of Houston, Morgan's Point, Bayport, Texas City and Freeport, TX. This rule establishes distinct security zones in these areas with slight modifications from the previous rule and includes the addition of a new zone for Morgan's Point, TX. The Morgan's Point security zone was originally proposed in the NPRM published on June 11, 2002 (67 FR 39919). We received no comments or objections regarding the security zone for Morgan's Point.

These zones are being established to protect waterfront facilities, persons, and vessels from subversive or terrorist acts. They are being established around areas concentrated with commercial facilities considered critical to national security. This rule is designed to restrict access to vessels engaged, or assisting in commerce with waterfront facilities within the security zones, vessels operated by port authorities, vessels operated by waterfront facilities within the security zones, and vessels operated by federal, state, county or municipal agencies. By limiting access to these areas the Coast Guard is increasing the opportunity for detection and reducing potential methods of attack on vessels, waterfront facilities within the security zones, and adjacent population centers located near the zones.

The size of the Houston security zone remains unchanged from the original rule and NPRM. It includes the Houston Ship Channel and all associated turning basins, bounded by a line drawn between Houston Ship Channel Light 132 and Houston Ship Channel Light 133 west to the T & N Rail Road Swing Bridge at the entrance to Buffalo Bayou, including all waters adjacent to the ship channel from shoreline to shoreline and the first 200 yards of connecting waterways.

The Morgan's Point security zone includes the waters of Barbours Cut Ship Channel and Turning Basin west of a line drawn between Junction Light “Barbours Cut” and Houston Ship Channel Light 91.

The security zone for Bayport is being increased to create a zone slightly larger than that published in the original rule and NPRM. This will have a minimal impact on vessel traffic because the northern portion of the ship channel remains open. The Bayport security zone includes all waters of the Port of Bayport, Bayport Ship Channel and Bayport Turning Basin south of latitude 29°36′45″ N and west of the Bayport Ship Channel Light 9.

The security zone for Texas City increases the size of the zone to provide protection for facilities which were previously just outside of the zone. The Texas City security zone includes all waters of the Port of Texas City Channel, Turning Basin and Industrial Canal containing South and West of a line drawn from Texas City Channel Light 19 through Cut B Inner Range Front Light and terminating on land in position 29°23′16″ N, 94°53′15″ W.

The security zones for Freeport have been modified to reflect the zones as they are described in the NPRM. These zones are slightly smaller than those in the original rule and are now drawn along more natural boundaries. The Dow Barge Canal security zone contains all waters bounded by its junction with the Intracoastal Waterway from a line drawn between an eastern point at 28°56′48″ N, 95°18′20″ W and a western point at 28°56′40″ N, 95°18′33″ W. The Brazos Harbor security zone contains all waters west of a line drawn between the northern point at 28°56′27″ N, 95°20′00″ W, and the southern point 28°56′09″ N, 95°20′00″ W.

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 this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. The impacts on routine navigation are expected to be minimal. Vessels engaged or assisting, in commerce with facilities located within the zones or having the express permission of the Captain of the Port Houston-Galveston, are authorized entry under this rule.

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. This security zone will not have an impact on a substantial number of small entities because this rule will not obstruct the regular flow of commercial vessel traffic conducting business within the zones. Other vessels may seek permission for entry into the zone from the Captain of the Port Houston-Galveston.

If you are a small business entity and are significantly affected by the regulation please contact LTJG George Tobey at U.S. Coast Guard Marine Safety Office Houston-Galveston, TX at (713) 671-5100.

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 could better evaluate its effects on them and participate in the rulemaking process.

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 so 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 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 M16475.1D, this rule is categorically excluded from further environmental documentation because this rule is not expected to result in any significant environmental impact as described in the National Environmental Policy Act of 1969 (NEPA). A “Categorical Exclusion Determination” is available for inspection or copying where indicated under ADDRESSES.

1. Docket. EPA has established an official public docket for this action under Docket ID No.OEI-2002-0005. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the EPA Docket Center, Public Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Public Reading Room telephone number is (202) 566-1744.

2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/.

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

On April 12, 2000, the EPA published a proposed rule to revise 40 CFR part 2, subpart A, and add new provisions implementing the Electronic Freedom of Information Act Amendments of 1996, Public Law 104-231. See 65 FR 19703, April 12, 2000. Interested persons were afforded an opportunity to participate in the rulemaking through submission of written comments on the proposed rule. The Agency received eight comments on its proposed rule. The Agency has adopted several of the suggested changes made by the commenters and has also made other revisions to its proposed rule for clarity.

New provisions implementing the suggested changes made by the commenters are found at § 2.100(a), § 2.101(a), § 2.101(c) (electronic availability of records), § 2.102(a)—§ 2.102(d) (process for requesting records), § 2.103 (responsibility for responding for requests), § 2.104(a) (deadline for response), § 2.104(b) (timing of responses, acknowledgment ), § 2.104(c) (multitrack processing), § 2.104(d) (unusual circumstances), § 2.104(e) (expedited processing), § 2.104(f) (annotation of applicable exemption), § 2.104(h) (denial of records), § 2.104 (i) (denial of fee waivers), § 2.104(j)(2) (appeal of Inspector General determinations), § 2.104(j)(4) (closing of appeal if litigation initiated), § 2.104(k) (exhaustion of administrative appeal rights), § 2.105 (exemption categories), § 2.107(b)(3) (format of disclosure), and § 2.107(b)(8) (searches for electronic records). Revisions to the Agency's fee schedule are found at §§ 2.107(c) and (d).

The Agency received a total of eight comments from the following: a nonprofit group that regularly uses the FOIA; an association that represents electric utilities, international affiliates, and industry associates; a manufacturing and services company; a law firm on behalf of a manufacturing company; a law firm on behalf of an ad hoc group of electric utilities and trade associations; a citizen; an association that represents cattle feeders and family ranchers; and the EPA Office of Inspector General.

In some instances, commenters suggested particular changes to the proposed rule. Several of the suggested changes have been accepted and incorporated into the Agency's final rule. For example, several commenters suggested the rule should list the FOIA statutory exemptions and refer to subpart B of these regulations to further address the handling of confidential business information. The Agency agrees and has modified § 2.100(a) to include a reference to subpart B of these regulations and has listed the statutory exemptions at § 2.105.

The Agency also agrees with one commenter's suggestion to include the e-mail addresses of the Agency's Freedom of Information (FOI) Offices, a reference to the Agency's online forms for filing FOIA requests, and clarification that a FOIA request must be in writing and may be submitted by mail, facsimile (fax), or electronically. Accordingly, the Agency has revised § 2.101(a) to include the e-mail addresses and the last sentence of § 2.102(a) recommending that envelopes, fax cover sheets, or e-mail subject lines be marked, “Freedom of Information Act Request.” Since telephone and fax numbers are subject to change, the Agency has not included the numbers in the final rule. Current telephone and fax numbers may be obtained from the Agency's web site.

One commenter suggested the deletion of the phrase “created by EPA” in § 2.101(c) and rescission of an allegedly erroneous interpretation of the statutory phrase “created on or after November 1, 1996.” The Agency disagrees with the commenter and believes that these phrases are in accordance with the plain language of the statute.

The Agency agrees with one commenter's suggestion to revise § 2.102(c) to match the language of FOIA at 5 U.S.C. 552(a)(3)(A) on what constitutes a reasonable request. Accordingly, the Agency has modified § 2.102(c) concerning the description of records sought.

One commenter suggested the Agency amend § 2.103(a) to provide that EPA will review all responsive records “in its possession as of the date the FOI Office begins processing the request.” The Agency disagrees with the suggestion but has modified § 2.103(a) to clarify that only those records in EPA's possession as of the date the FOIA request was received in the appropriate FOI Office will be considered within the scope of the request.

Further, the Agency agrees with the suggestion of two commenters that § 2.103(c) be revised to set forth the standard EPA will use to decide whether to refer a request to another Federal agency. Accordingly, § 2.103(c) has been revised to state that where records responsive to the request originated with another Federal agency, EPA will either refer the request to the other agency or, after consultation, respond to the request itself. In addition, whenever all or any part of a request has been transferred to another agency for response, EPA will notify the requestor.

Three commenters suggested that the language in §§ 2.104(b) and (k) regarding proposed time limits does not comply with the time limits prescribed by FOIA at 5 U.S.C. 552(a)(6)(A)(i) and (ii), which provide that an agency must always respond to an initial FOIA request within 20 working days and to an appeal within 20 working days. The commenters recommended that § 2.104(b) be rewritten to delete the language “[c]omponents ordinarily will respond to requests no later than twenty (20) working days from the date the request is received.” Similarly, the commenters recommended that § 2.104(k) be rewritten to delete the language “[t]he decision on an appeal will be made normally in writing, within 20 working days of its receipt.” The Agency has modified § 2.104(b) to clarify that unusual circumstances may provide for a response outside the 20 working day statutory time limit. Also, § 2.104(k) has been modified by removing any reference to time limits. Moreover, § 2.104(l) has been modified to clarify that judicial action may be taken should EPA not respond to an appeal within the statutory 20 working day time limit.

The Agency agrees with the suggestion of two commenters to change § 2.104(c) to comport with the requirements of FOIA at 5 U.S.C. 552(a)(6)(C)(i) concerning when requesters may be deemed to have exhausted their administrative remedies. Accordingly, the Agency has modified § 2.104(b) to provide notice that requesters have a right to seek immediate judicial review when the Agency fails to respond to a request within the statutory 20 working day period or any authorized extension of time.

Three commenters suggested that proposed § 2.104(d) provides no standards to guide the Agency when distinguishing between simple and complex requests based on the amount of work or time (or both) expended for processing a request. The Agency believes that the current language, stating that the amount of work or time (or both) to process a request, as well as informing requesters that they have the opportunity to limit the scope of their requests in order to qualify for faster processing, directly comports with the statutory language and therefore it declines to revise § 2.104(d).

One commenter suggests that the “as soon as practicable” language in proposed § 2.104(e) should be changed to provide that the Agency shall notify a requester in writing, “within 20 days of the date the request is received” of the unusual circumstances that warrant delay and of the extended date for response. The commenter also suggests that the Agency should incorporate the statutory definition of “unusual circumstances” to avoid any confusion. In response to the commenter's suggestions, the Agency has inserted the phrase “as defined in the FOIA” into this provision to alert requesters to the statutory basis of the definition of the term “unusual circumstances,” although we have retained the proposed language in § 2.104(e) regarding notification.

Two commenters suggested changes to § 2.104(f) concerning expedited processing. Specifically, one commenter recommended that the Agency use the multitrack authority to expedite requests that are likely to be the subject of multiple requests. Another commenter suggested that the expedited processing provision is too narrow and should be rewritten so that it guarantees expedited processing to any requester who “demonstrates a compelling need” for the requested records. The Agency declines to adopt the first comment because it believes that it is implicit in the current language of § 2.104(f) that those requests being given expedited processing will receive immediate priority. Moreover, the current language of § 2.104(l) clearly states that when a requester meets the criteria set out in the regulation for establishing a compelling need, expedited processing will be granted. Accordingly, a “guarantee of expedited processing” is unnecessary and the Agency declines to adopt the second comment.

Three commenters suggested that the proposal retain the language for listing withheld records as it appears in existing 40 CFR 2.113. The Agency agrees and has revised § 2.104(i)(2) to include the language for identifying records being withheld.

The EPA Office of Inspector General requested that the rule be revised to delegate authority to the Counsel to the Inspector General to respond to appeals of denials of requests for Office of Inspector General records. The Office of Inspector General commented that appeals of denials of access to Office of Inspector General records are currently handled by EPA's General Counsel and, in its view, Inspector General independence requires that the Office of Inspector General maintain full responsibility for, and custody and control over, all Office of Inspector General records. The Agency agrees and has added § 2.104(j)(2) to authorize the Counsel to the Inspector General to act on appeals of denials of requests for Office of Inspector General records, unless the Counsel to the Inspector General has signed the adverse initial determination, in which case the General Counsel, or their designee, would respond to the appeal.

One commenter suggested that the Agency should eliminate proposed § 2.104(j)(3), which stated that the Agency would take no further action on an appeal if the request becomes a matter of FOIA litigation, because it penalizes requesters who exercise their statutory right to sue the Agency if the Agency fails to respond to the requester's appeal within 20 working days, as provided by § 2.104(j)(4). This language is not intended to penalize requesters or to suggest that EPA will take no further action on the matter but to indicate that once a lawsuit has been filed, any further actions on behalf of the Agency will be taken in the context of the litigation and not the administrative appeal process. Therefore, EPA has added language in § 2.104(j)(4) to reflect that once an appellant has initiated litigation because the Agency has not resolved an appeal in a timely manner, any further action on the records in dispute will take place through the lawsuit.

The Agency agrees with one commenter's suggestion to revise § 2.104(l) because an administrative appeal is not necessary when the Agency has not made a timely initial determination. Accordingly, the Agency has inserted language in §§ 2.104(b) and (l) stating that if EPA fails to respond to a request within the statutory 20 working day period or any authorized extension of time, the requester may seek judicial review to obtain the records without first making an administrative appeal.

The Agency has removed the word “component” from the proposed regulations, and replaced it with “Agency” or “office” as appropriate to reflect more accurately the Agency's organizational structure.

EPA is issuing this rule under the authority of 5 U.S.C. 301, 552 (as amended), and 553.

The Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq. , generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as that term is defined in the Small Business Administration's regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

EPA has determined that this final rule will have only a small economic impact on the small entities that submit FOI requests to EPA for records. Under the FOIA, agencies may recover only the direct costs of processing FOI requests. EPA's proposed fees are nominal and have been calculated to recover only the direct costs of processing a FOI request. The revision to the fee schedule is minimal and reflects a more specific breakdown of direct costs by the kind of EPA employee involved in processing a FOI request. Therefore, under 5 U.S.C. 605(b), I certify that this final rule will not have a significant economic impact on a substantial number of small entities.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective November 5, 2002.

This final rule does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. It pertains solely to the dissemination of information under the FOIA.

This final rule is expected to have no environmental impact. It pertains solely to the dissemination of information under the FOIA.

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

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

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

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

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

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

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

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This final rule simply revises EPA's regulations implementing the FOIA. Thus, the requirements of section 6 of the Executive Order do not apply to this final rule.

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

This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175.

Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, EPA must prepare a budgetary impact statement to accompany any general notice of proposed rulemaking or final rule that includes a federal mandate which may result in estimated costs to State, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more. Under section 205, for any rule subject to section 202, EPA generally must select the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Under section 203, before establishing any regulatory requirements that may significantly or uniquely affect small governments, EPA must take steps to inform and advise small governments of the requirements and enable them to provide input.

EPA has determined that this final rule does not include a federal mandate as defined in UMRA. This final rule does not include a federal mandate that may result in estimated annual costs to State, local or tribal governments in the aggregate, or to the private sector, of $100 million or more, and does not establish regulatory requirements that may significantly or uniquely affect small governments.

Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it is not an economically significant regulatory action as defined under Executive Order 12866.

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

This final rule does not involve any technical standards, and EPA is not considering the use of any voluntary consensus standards. Accordingly, this final rule is not subject to the requirements of the NTTAA.

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. EPA has concluded that this rule is not likely to have any adverse energy effects.

For the reasons set out in the preamble, 40 CFR part 2 is amended as follows:

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

On January 18, 2002, for Rules 412 and 413, and on October 6, 2000 for Rule 417, these rule submittals were found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

There are no previous versions of Rules 412 and 413 SIP. The ICAPCD adopted earlier versions of Rule 417 and CARB submitted them to us on November 4, 1977 and October 15, 1979. We approved these versions of Rule 417 into the SIP on August 8, 1978 and January 1, 1981. The ICAPCD adopted revisions to the 1981 SIP-approved version of Rule 417 on September 14, 1999 and CARB submitted them to us on May 26, 2000. While we can act on only the most recently submitted version, we have reviewed materials provided with previous submittals.

Rule 412—Soil Decontamination Operations, establishes standards to reduce the emissions of VOC from soil that has been contaminated with organic materials, typically gasoline, jet fuel, or diesel fuel. The rule requires VOC emissions from contaminated soil (greater than 50 ppm VOC) to be controlled when the soil is being excavated.

Rule 413—Organic Solvent Degreasing Operations, applies to the operation of equipment using organic solvent in degreasing operations. The rule reduces emissions of reactive organic compounds (ROC) by establishing equipment standards and work practice procedures for cold cleaners and open top and conveyorized vapor degreasers.

Rule 417—Organic Solvents, applies to emissions or organic material from heated and unheated operations. Rule 417 reduces emissions of ozone precursor compounds from operations that are not currently regulated by other District rules. The TSDs have more information about Rules 412, 413 and 417.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas (see section 182(a)(2)(A)), and must not relax existing requirements (see sections 110(l) and 193). EPA has classified Imperial County a “transitional area” for attainment of the NAAQS for ozone (CAA section 185). Transitional areas are exempt from additional nonattainment requirements in CAA part D, subpart 2. The exemption will continue until EPA redesignates Imperial County as either attainment or nonattainment under CAA section 107(d)(4) (see 57 FR 113498, 13523-13527). The District is not exempt from the general nonattainment requirements in CAA part D, subpart 1.

Guidance and policy documents that we used to help evaluate specific enforceability and RACT requirements consistently include the following:

1. Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044, November 24, 1987.

2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).

3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

4. Control of Volatile Organic Emissions from Solvent Metal Cleaning. EPA-450/2-77-022, November 1977.

5. Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for Organic Solvent Cleaning and Degreasing Operations. California Air Resources Board Guidance Document. July 18, 1991,

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSD has more information on our evaluation.

The TSD describes additional rule revisions that do not affect EPA's current action but are recommended for the next time the local agency modifies the rules.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by December 5, 2002, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on January 6, 2003. This will incorporate these rules into the federally enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Table 2 lists some of the national milestones leading to the submittal of these local agency VOC rules.

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.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 6, 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).)

Section 111(d) of the CAA requires states to submit plans to control certain pollutants (designated pollutants) at existing facilities (designated facilities) whenever standards of performance have been established under section 111(d) for new sources of the same type, and EPA has established emissions guidelines for such existing sources. A designated pollutant is any pollutant for which no air quality criteria have been issued, and which is not included on a list published under section 108(a) or section 112(b)(1)(A) of the CAA, but emissions of which are subject to a standard of performance for new stationary sources.

The emissions guidelines for small MWC units were originally promulgated in December 1995 but were vacated by the U.S. Court of Appeals for the District of Columbia Circuit in March 1997. In response to the 1997 vacature, on August 30, 1999, EPA proposed to reestablish emission guidelines for small MWC units. On December 6, 2000 (65 FR 76378), EPA finalized the section 111(d) emission guidelines for existing small MWC units. The emission guidelines contained in this final rule are equivalent to the 1995 emission guidelines for small MWC units. The emission guidelines are codified at 40 CFR part 60, subpart BBBB.

Subpart B of 40 CFR part 60 establishes procedures to be followed and requirements to be met in the development and submission of state plans for controlling designated pollutants. Part 62 of the CFR provides the procedural framework for the submission of these plans. When designated facilities are located in a state, a state must develop and submit a plan for the control of designated pollutant. However, 40 CFR 62.06 provides that if there are no existing sources of the designated pollutants in the state, the state may submit a letter of certification to that effect, or negative declaration, in lieu of a plan. The negative declaration exempts the state from the requirements of subpart B for that designated pollutant. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

The State of Mississippi has determined there is no existing source in the state of Mississippi subject to the small MWC units emission guidelines. Consequently, the state of Mississippi has submitted a letter of negative declaration certifying this fact. We are taking final action to approve this negative declaration.

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective January 6, 2003 without further notice unless the Agency receives adverse comments by December 5, 2002.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on January 6, 2003 and no further action will be taken on the proposed rule.

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

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

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

The Congressional Review Act, 5 U.S.C. 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 6, 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 Medicare physician fee schedule specifies payments to physicians for more than 7,000 health care services and procedures ranging from routine office visits to complex surgical procedures. In calendar year (CY) 2003, Medicare is expected to pay approximately $44.7 billion to over 750,000 physicians and other practitioners for services paid under the physician fee schedule.

On June 28, 2002, we published a proposed rule to refine the resource-based ST practice expense relative value units (RVUs) and make other changes to Medicare Part B payment policy, which affect the Medicare physician fee schedule for CY 2003. The policy changes proposed concerned: the Medicare Economic Index, pricing of the technical component for positron emission tomography (PET) scans, Medicare qualifications for clinical nurse specialists, a process to add or delete services to the definition of telehealth, definition for ZZZ global periods, global period for surface radiation, and an endoscopic base for urology codes. We also discuss the refinement of anesthesia work values, clinical social worker services, and how drugs are accounted for in the sustainable growth rate.

Under the formula set for in section 1848(b)(1) of the Social Security Act, the payment amount for each service paid under the physician fee schedule is the product of three factors: (1) A nationally uniform RVU for the service; (2) a geographic adjustment factor for each physician; and (3) a nationally uniform conversion factor (CF) for the service. The CF converts the RVUs into payment amounts. For each physician fee schedule service there are three RVUs: (1) An RVU for physician work; (2) an RVU for practice expense; and (3) an RVU for malpractice expense.

We are concerned about information and data used in establishing RVUs for certain physicians' services that would apply under the Medicare physician fee schedule for CY 2003. In reviewing the information and data used to establish RVUs (including data and information obtained from outside sources) we discovered that the data and information were incomplete, and we could not, therefore, make an accurate evaluation and establishment of RVUs, which form in part the basis of payment under the physician fee schedule. The effects of the incomplete data and information that we have identified are of such a magnitude to affect significantly the rates paid under the physician fee schedule for all physicians, non-physician practitioners, suppliers and providers paid physician fee schedule rates. Because changes in RVUs are done in a budget-neutral manner, RVU changes have redistributive implications for all physicians, non-physician practitioners, suppliers, and providers paid physician fee schedule rates. Using the data and information as currently constituted without refinement would result in inappropriate and uneven payments to physicians, non-physician practitioners, suppliers, and providers. Because it would be impossible to avoid such uneven payments at this point based on the current state of information, it would be inappropriate to proceed to publication of a final rule with a physician fee schedule for CY 2003 until the subject data and information can be re-evaluated and then utilized to assign the proper number of units under our relative value system.

In order to thoroughly assess the accuracy of the data and information and to assure that they do not contain further inaccuracies that might also have significant implications, an intensive review of the data and information will be necessary. Because of the time needed for this review, we cannot complete this review and recalculate the physician fee schedule rates for CY 2003 before November 1, 2002. Once our review has been completed and data and information assessed and rates revised, we will publish a final rule. We will announce the effective date of the physician fee schedule for CY 2003 in that rule.

In the Matter of the Schedule of Application Fees Set Forth in §§ 1.1102 through 1.1107 of the Commission's rules.

Adopted: July 1, 2002;

Released: July 12, 2002.

By this action, the Commission amends its Schedule of Application Fees, 47 CFR 1.1102 et seq. , to adjust the fees for processing applications and other filings. Section 8(b) of the Communications Act, as amended, requires that the Commission review and adjust its application fees every two years after October 1, 1999. 47 U.S.C. 158(b). The adjusted or increased fees reflect the net change in the Consumer Price Index for all Urban Consumers (CPI-U) of 40 percent, calculated from December 1989 to October 2001. The adjustments made to the fee schedule comport with the statutory formula set forth in section 8(b).