The gypsy moth, Lymantria dispar (Linnaeus), is a destructive pest of forest and shade trees. The gypsy moth regulations (contained in 7 CFR 301.45 through 301.45-12 and referred to below as the regulations) restrict the interstate movement of regulated articles from generally infested areas to prevent the artificial spread of the gypsy moth.

In an interim rule effective and published in the Federal Register on June 20, 2002 (67 FR 41809-41810, Docket No. 02-053-1), we amended the regulations in § 301.45-3 by adding Columbia, Florence, Forest, Green Lake, Jefferson, Langlade, Portage, Rock, and Wood Counties in Wisconsin to the list of generally infested areas based on the detection of infestations of gypsy moth in those counties.

Comments on the interim rule were required to be received on or before August 19, 2002. We did not receive any comments. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule.

This action also affirms the information contained in the interim rule concerning Executive Orders 12866, 12372, and 12988, and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.

This rule affirms an interim rule that amended the regulations by adding nine counties in Wisconsin to the list of generally infested areas. As a result of the interim rule, the interstate movement of certain articles from those areas is restricted. The interim rule was necessary to prevent the artificial spread of the gypsy moth to noninfested States. The following analysis addresses the economic effects of the interim rule on small entities, as required by the Regulatory Flexibility Act.

The interim rule placed restrictions on the interstate movement of regulated articles and outdoor household articles (OHA's) from and through those counties in Wisconsin that were designated as generally infested areas. These restrictions will have their primary effect on persons moving OHA's, nursery stock, Christmas trees, logs and wood chips, and mobile homes interstate from a generally infested area into or through any area that is not generally infested.

Under the regulations, OHA's may not be moved interstate from a generally infested area into or through a noninfested area unless they are accompanied by either a certificate issued by an inspector or an OHA document issued by the owner of the articles, attesting to the absence of all life stages of the gypsy moth. Most individual homeowners moving their own articles who comply with the regulations choose to self-inspect and issue an OHA document. This takes a few minutes and involves no monetary cost. Individuals may also have State-certified pesticide applicators, trained by the State or the U.S. Department of Agriculture (USDA), inspect and issue certificates.

Generally, regulated articles (such as logs, pulpwood, wood chips, mobile homes, nursery stock, OHAs, and Christmas trees) may only be moved interstate from a generally infested area if they are accompanied by a certificate or limited permit issued by an inspector. However, logs, wood chips, and pulpwood may be moved without a certificate or limited permit if the person moving the articles attaches a signed accurate statement to the waybill as specified in the Gypsy Moth Program Manual, stating that he or she has inspected the articles and has found them free of all life stages of the gypsy moth. This exception minimizes the costs of moving logs, pulpwood, and wood chips interstate. Regulated articles may also be moved interstate from a generally infested area without a certificate if they are moved by the USDA for experimental or scientific purposes and they are accompanied by a permit issued by the Administrator of the Animal and Plant Health Inspection Service (APHIS).

Persons moving regulated articles interstate from a generally infested area may obtain a certificate or limited permit from an inspector or a qualified certified applicator. Inspectors will issue these documents at no charge, but costs may result from delaying the movement of commercial articles while waiting for the inspection. Certificates for the interstate movement of mobile homes from a generally infested area may also be obtained from qualified certified applicators.

When inspection of regulated articles or OHA's reveals the presence of gypsy moths, treatment is often necessary. The preferred treatment, scraping egg masses and spraying caterpillars, costs an average of $10 to $30 per shipment. Fumigation is another alternative, but it is more expensive, at $75 to $100 per shipment, and may damage the shipment. Treatment is done by qualified certified applicators, most of which are small businesses. These businesses might experience a small increase in income as a result of the interim rule.

Nurseries and Christmas tree growers that move a substantial number of shipments interstate from the generally infested areas would be able to minimize treatment costs by treating their premises for gypsy moths under a compliance agreement with APHIS. These treatments cost businesses between $10 and $20 per acre. This alternative allows nurseries and Christmas tree growers to issue their own certificates provided they are under a compliance agreement and is less costly than treating individual shipments. The entities most likely to choose this option are nurseries that move a substantial number of shipments interstate and treat their premises for other pests in addition to the gypsy moth. Producers that do not operate under a compliance agreement with APHIS, but treat their premises under this option, would receive certification for each shipment from an inspector.

The economic effects of the interim rule will likely vary, depending on the size of the entities affected, the levels of infestation, and the size and number of shipments to noninfested areas. There are approximately 146 nurseries and Christmas tree growers that will incur costs from the interim rule in eight of the nine counties added to the list of generally infested areas (data are not available for Florence County). According to the size standards established by the Small Business Administration, all of these businesses are considered small entities. No information is available concerning the percentage of shipments moved by those entities into or through noninfested areas. Data on shipments of regulated articles from other generally infested areas in Wisconsin indicate that few shipments are moved from those areas into or through noninfested areas. If this pattern holds, little or no additional costs would be incurred by many of the 146 establishments as a result of the interim rule.

The regulatory requirements imposed by the interim rule are expected to cause a slight increase in costs for the affected entities. The relative negative impact that may result from the interim rule is very small when compared with the potential for harm to related industry and the U.S. economy as a whole resulting from the further spread of the pest. Since the total value of the regulated articles moved from infested to noninfested areas is a small fraction of the national total, the effect on national prices is expected to be slight. Additionally, since the rule is not prohibitive, articles that meet the requirements of the regulations would continue to enter the market. Therefore, the overall impact upon price and competitiveness is expected to be relatively insignificant.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant impact on a substantial number of small entities.

On July 9, 2002, the FAA issued Emergency AD 2002-14-51, Docket 2002-SW-35-AD, which applied to Agusta Model A109E and A119 helicopters. That AD required, before each flight, visually checking each tail rotor blade on both sides for a crack. That AD also required, within 5 hours TIS and thereafter at intervals not to exceed 5 hours TIS, inspecting each tail rotor blade for a crack with a 5x or higher magnifying glass. If you were unable to determine by the visual inspection whether there was a crack, the AD required conducting a dye-penetrant inspection. Replacing any cracked tail rotor blade with an airworthy blade was also required before further flight. After issuance of that Emergency AD, the manufacturer determined, and we agreed, that reducing the Vne by 28 KIAS to 140 KIAS is necessary to reduce the tail rotor loading. The reduction in Vne supports the increase in the visual inspection interval from 5 hours TIS to 25 hours TIS. Further, we have determined that additional modifications are necessary for the Agusta Model A119 helicopters that are not required for the Model A109E helicopters, so on August 19, 2002, we superseded AD 2002-14-51 and issued a separate Emergency AD for each model. Emergency AD 2002-17-51, applicable to August Model A109E helicopters, requires reducing the helicopter Vne; checking and inspecting the tail rotor blades for cracks; and replacing any cracked tail rotor blades.

The FAA has reviewed Agusta Alert Bolletino Tecnico No. 109EP-30, Revision A, dated July 25, 2002 (BT), which describes procedures for checking and inspecting both sides of the tail rotor blades, part number (P/N) 109-8132-01-111, for a crack and reducing the helicopter Vne. The Ente Nazionale per l'Aviazione Civile, the airworthiness authority for Italy, classified the BT as mandatory and issued AD No. 2002-384, dated July 29, 2002, to ensure the continued airworthiness of this helicopter in Italy.

Since the unsafe condition described is likely to exist or develop on other Agusta Model A109E helicopters of the same type design, the FAA issued Emergency AD 2002-17-51 to prevent failure of the tail rotor blade and subsequent loss of control of the helicopter. The AD requires:

• Installing a placard in the helicopter and marking the airspeed indication at 140 KIAS to indicate a reduction in the helicopter Vne of 28 KIAS before further flight;

• Visually checking the tail rotor blades on both sides for a crack before each start of the helicopter engines;

• Visually inspecting the tail rotor blades with a 5× or higher magnifying glass within 25 hours TIS and thereafter at intervals not to exceed 25 hours TIS, and anytime an increase in vibration occurs, and conducting a dye-penetrant inspection if you are unable to determine by the visual inspection whether or not there is a crack; and

• Replacing any cracked tail rotor blade with an airworthy tail rotor blade before further flight.

The actions must be accomplished in accordance with the BT described previously. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability of the helicopter. Therefore, reducing the helicopter Vne; performing checks and inspections of the tail rotor blades for cracks; and replacing any cracked tail rotor blades are required before further flight, and this AD must be issued immediately.

Since it was found that immediate corrective action was required, notice and opportunity for prior public comment thereon were impracticable and contrary to the public interest, and good cause existed to make the AD effective immediately by individual letters issued on August 19, 2002, to all known U.S. owners and operators of Agusta Model A109E helicopters. These conditions still exist, and the AD is hereby published in the Federal Register as an amendment to 14 CFR 39.13 to make it effective to all persons.

The FAA estimates that 48 helicopters of U.S. registry will be affected by this AD, that it will take approximately 0.5 work hour per helicopter to accomplish the visual inspection, 1 work hour per helicopter to accomplish the dye-penetrant inspection, and 1 work hour per helicopter to replace the tail rotor blade, if necessary. The average labor rate is $60 per work hour. Required parts will cost approximately $9,765 per tail rotor blade. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $506,160 per year, assuming, for each helicopter, 24 visual inspections, 1 tail rotor blade replacement, and no dye-penetrant inspections. The manufacturer states in its BT that they will provide the replacement blades at no cost to the owner/operator.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2002-SW-42-AD.” The postcard will be date stamped and returned to the commenter.

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.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

On September 29, 2000, the FAA issued AD 2000-20-18, Amendment 39-11930 (65 FR 62275, October 18, 2000), to require visually inspecting certain slat brackets for a crack and replacing any slat assembly that has a cracked bracket. Also, AD 2000-20-18 required installing a newly designed slat assembly on each affected model before flight after December 31, 2000. That action was prompted by an incident in which a slat separated from a helicopter. That condition, if not corrected, could result in a slat separating, contacting a rotor blade, and subsequent loss of control of the helicopter.

Since issuing that AD and since installing the newly designed slat assembly, part number (P/N) 407-023-001-101 on affected helicopters, two additional cracked slat brackets have been reported. These occurrences are attributed to a design flaw and improper installation of the slat assembly.

Bell Helicopter Textron has issued Alert Service Bulletin No. 407-02-52, dated March 20, 2002 (ASB). The ASB specifies checking the slats for a crack in the bracket on certain serial-numbered helicopters and replacing the existing slat assembly with a further improved, airworthy, slat assembly on another serial-numbered group of helicopters. The ASB also specifies modifying certain existing slat assemblies for another group of serial-numbered helicopters and installing and marking identification plates after the segmented slat assemblies are installed on certain other helicopters. Transport Canada classified this ASB as mandatory and issued AD CF-2000-09R1, dated June 6, 2002, to ensure the continued airworthiness of these helicopters in Canada.

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

This unsafe condition is likely to exist or develop on other BHTCL Model 407 helicopters of the same type design. Therefore, this AD supersedes AD 2000-20-18 and requires the following:

• Within 10 hours time-in-service (TIS) and thereafter before the first flight of each day:

• For helicopters serial number (S/N) 53000 through 53498 and 53500 through 53503, check each slat for a crack at the radius of each bracket, P/N 206-023-119-109, -110, or 407-023-801-127, -128, or 407-023-011-119, -120, or -121. An owner/operator (pilot) holding at least a private pilot certificate may perform this check. The pilot must enter compliance with this provision in accordance with 14 CFR 43.11 and 91.417(a)(2)(v). A pilot may perform this check because it involves only a visual check for a crack in the bracket for the slat and can be performed equally well by a pilot or a mechanic.

• If a crack is found, before further flight, replace slat assembly, P/N 407-023-002-117 or 407-023-001-101 with an airworthy, segmented slat assembly, P/N 407-023-001-103.

• Replacing slat assembly, P/N 407-023-002-117 or 407-023-001-101, with an airworthy, segmented slat assembly, P/N 407-023-001-103, is terminating action for the pilot check.

• Within 300 hours TIS, but not later than December 31, 2002, for helicopters:

• S/N 53000 through 53498, replace slat assembly, P/N 407-023-002-117 and 407-023-001-101, with an airworthy, segmented slat assembly, P/N 407-023-001-103.

• S/N 53500 through 53503, modify each segmented slat assembly, P/N 407-023-001-103.

• S/N 53504 through 53512, install and mark identification plates for each segmented slat assembly, P/N 407-023-001-103.

The actions must be accomplished in accordance with the ASB described previously. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the structural integrity and controllability of the helicopter. Therefore, checking a certain group of slats for a crack at the radius of each bracket is required before the first flight of each day and must be replaced before December 31, 2002. Thus, this AD must be issued immediately.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

The FAA estimates that this AD will affect 289 helicopters and will require approximately:

• 3.5 work hours to replace the slat assembly for 280 helicopters;

• 3.5 work hours to reinstall the slat assembly for 4 helicopters;

• 3/4 work hour to install and mark the ID plates for 9 helicopters;

• An average labor rate of $60 per work hour; and

• $5,657 for parts per helicopter. The manufacturer states that a 100 percent warranty credit is available for replacing the slat assembly if various conditions are met. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $1,644,005.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES . All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2002-SW-38-AD.” The postcard will be date stamped and returned to the commenter.

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.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on the specified helicopter models. The DGAC advises of the discovery of noncompliant P2 pipes, which might cause insufficient inflation of the bullet seal and lead to engine flame-out during flight in icing condition.

Eurocopter has issued Alert Telex No. 30.00.52 R1, dated April 10, 2002 (Telex), which adds limitations for flight into icing conditions, provides procedures for checking the bullet seal, and specifies replacing any P2 pipe if the pressure on the pressure gage is below 3 bars on one or on both sides. The DGAC classified this Telex as mandatory and issued AD No. 2002-257-080(A), dated May 15, 2002, to ensure the continued airworthiness of these helicopters in France.

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

This unsafe condition is likely to exist or develop on other helicopters of these same type designs registered in the United States. Therefore, this AD is being issued to prevent restricted airflow into the engine inlet during flight in certain atmospheric conditions conductive to icing that could result in loss of complete engine power and subsequent loss of control of the helicopter. This AD requires, before further flight, inserting statements into the Limitations section of the RFM prohibiting flight under certain atmospheric conditions. Also, this AD requires within 10 hours time-in-service (TIS), inspecting the bullet seal on the MPAI to determine the pressure. If the pressure is less than 3 bars on either side, this AD requires, within 100 hours TIS, replacing each unairworthy P2 pipe with an airworthy P2 pipe, which is terminating action for the requirements of this AD. The actions must be done in accordance with the Telex described previously.

None of the Model AS332C, L, or L1 helicopters currently on the U.S. Register have the MPAI installed. All helicopters that have the MPAI installed, included in the applicability of this rule, are currently operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, the FAA considers that this rule is necessary to ensure that the unsafe condition is addressed in the event that any of these subject helicopters have the MPAI installed in the future.

Should an MPAI be installed on an affected helicopter in the future, the FAA estimates that it would require:

• 1 work hour to insert statements into the RFM,

• 3 work hours to conduct the pressure test,

• 15 work hours to replace both pipes,

• $60 per work hour labor rate, and

• $1400 in material costs to replace two pipes.

Since this AD action does not affect any helicopter that is currently on the U.S. register, it has no adverse economic impact and imposes no additional burden on any person. Therefore, notice and public procedures hereon are unnecessary and the amendment may be made effective in less than 30 days after publication in the Federal Register .

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are unnecessary, and that good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2002-SW-36-AD.” The postcard will be date stamped and returned to the commenter.

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.

The FAA has determined that notice and prior public comment are unnecessary in promulgating this regulation; therefore, it can be issued immediately to correct an unsafe condition in aircraft since none of these model helicopters are registered in the United States. The FAA has also determined that this regulation is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

On September 27, 2002, the FAA issued AD 2002-20-07, amendment 39-12903 (67 FR 62341, October 7, 2002), applicable to all Boeing Model 737 series airplanes, to require installation of a new rudder control system and changes to the adjacent systems to accommodate that new rudder control system. That action was prompted by FAA determinations that the existing system design architecture is unsafe due to inherent failure modes, including single-jam modes and certain latent failures or jams, which, when combined with a second failure or jam, could cause an uncommanded rudder hardover event and consequent loss of control of the airplane. Additionally, the current rudder operational procedure is not effective throughout the entire flight envelope. The actions required by that AD are intended to prevent the identified unsafe condition.

AD 2002-20-07 would have superseded seven existing ADs. However, since the issuance of that AD, the FAA finds that only three of those ADs should have been superseded. By superseding the other four ADs, we inadvertently eliminated the requirements of those four ADs as of the effective date of AD 2002-20-07, instead of upon accomplishment of the actions required by that AD. We find that retaining the requirements of those four ADs is necessary to maintain the current level of safety until the requirements of this new AD are accomplished. This finding does not impose any additional burden on any operator because the requirements of those four ADs already exist.

The requirements of the following four ADs remain in effect until installation of the new rudder control system and corresponding changes to the adjacent systems:

• AD 97-09-15 R1, amendment 39-10912 (63 FR 64857, November 24, 1998), applies to all Boeing Model 737-100, -200, -300, -400, and -500 series airplanes. That AD requires a one-time inspection of the engage solenoid valve of the yaw damper on the rudder power control unit (PCU) to determine the part number (P/N) of the valve, and replacement of certain valves with specified P/Ns if necessary. Retaining this requirement will ensure that the appropriate engage solenoid valve is installed on the rudder PCU of all affected airplanes until accomplishment of this new AD.

• AD 97-14-04, amendment 39-10061 (62 FR 35068, June 30, 1997), applies to all Boeing Model 737-100, -200, -300, -400, and -500 series airplanes. That AD requires tests of the main rudder PCU to detect excessive internal leakage of hydraulic fluid, stalling, or reversal, and to verify proper operation of the PCU; and replacement of the PCU with a unit having a different part number if necessary. That AD also requires replacement of the PCU and the vernier control rod bolts with newly designed units, leak tests of the PCU, and replacement of the PCU with a serviceable or newly designed unit if necessary. Retaining these requirements will ensure that the appropriate vernier control rod bolts and main rudder PCU are installed and properly maintained until accomplishment of this new AD.

• AD 99-11-05, amendment 39-11175 (64 FR 27905, May 24, 1999). A correction of that AD was published in the Federal Register on December 13, 1999 (64 FR 69392). That AD applies to all Boeing Model 737 series airplanes, and requires repetitive displacement tests of the secondary slide in the dual concentric servo valve of the PCU for the rudder, and replacement of the valve assembly with a modified valve assembly if necessary. Retaining these requirements will ensure that the repetitive displacement tests will continue to be performed until accomplishment of this new AD.

The AD number and Federal Register citation for AD 99-11-05 appeared incorrectly in AD 2002-20-07. This information is specified correctly in the preceding paragraph.

• AD 2000-22-02, amendment 39-11948 (65 FR 64134, October 26, 2000). A correction of that AD was published in the Federal Register on November 16, 2000 (65 FR 69239), as AD 2000-22-02 R1, which applies to all Boeing Model 737 series airplanes. Those ADs require revising an FAA-approved Airplane Flight Manual (AFM) procedure to simplify the instructions for correcting a jammed or restricted flight control condition. Retaining this AFM change will ensure that the flightcrew continues to be advised of the procedures necessary to address a condition involving a jammed or restricted rudder until accomplishment of this new AD.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of this same type design, this new AD revises AD 2002-20-07, which would have superseded seven existing ADs. This new AD continues to require installation of a new rudder control system and changes to the adjacent systems to accommodate that new rudder control system. This new AD also removes any reference to superseding four of those seven existing ADs.

Paragraph (b) of this AD specifies that installation of a new rudder control system and changes to the adjacent systems to accommodate that new rudder control system terminates the requirements of ADs 97-09-15 R1, 97-14-04, 99-11-05, and 2000-22-02 R1.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES . All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-251-AD.” The postcard will be date stamped and returned to the commenter.

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.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

Fort Dodge Animal Health, Division of American Home Products Corp., 500 Fifth St. NW., Fort Dodge, IA 50501, has informed FDA of a change of name to Fort Dodge Animal Health, Division of Wyeth. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c) to reflect the change. In addition, when this sponsor's address was first codifed (61 FR 5505, February 13, 1996), an incorrect street number was included. At this time, it is being corrected.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

A. H. Robins Co., P.O. Box 518, Fort Dodge, IA 50501-0518, has informed FDA that it has transferred ownership of, and all rights and interest in, the following 12 approved NADAs to Fort Dodge Animal Health, Division of Wyeth, 800 Fifth St. NW., Fort Dodge, IA 50501:

Accordingly, the agency is amending the regulations in 21 CFR 520.88b, 520.88f, 520.1380, 520.1720a, 522.775, 522.1066, 522.1085, 522.1380, 522.1720, 522.2470, and 524.1600a to reflect the transfer of ownership and to reflect current format.

Following this change of sponsorship, A. H. Robins Co. is no longer the sponsor of any approved application. Accordingly, 21 CFR 510.600(c) is being amended to remove the entries for A. H. Robins Co.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

On October 28, 2002 (67 FR 65864), HUD published an interim rule establishing the eligibility of units owned or substantially controlled by a public housing agency (PHA) for purchase under the Housing Choice Voucher Program homeownership option. The interim rule, which will become effective on November 27, 2002, inadvertently provided an incorrect designation for the paragraph being added to the voucher program regulations. Specifically, the interim rule provides that a new paragraph (c) is being added to § 982.628. The correct designation is § 982.628(d). This document makes the necessary technical correction to the October 28, 2002 interim rule.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Iowa program effective April 10, 1981. You can find background information on the Iowa program, including the Secretary's findings, the disposition of comments, and conditions of approval, in the January 21, 1981, Federal Register (46 FR 5885). You can also find later actions concerning Iowa's program and program amendments at 30 CFR 915.10, 915.15, and 915.16.

By letter dated June 14, 2002 (Administrative Record No. IA-447), Iowa sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Iowa sent the amendment in response to a letter dated June 17, 1997 (Administrative Record No. IA-440), that we sent to Iowa in accordance with 30 CFR 732.17(c).

We announced receipt of the amendment in the August 12, 2002, Federal Register (67 FR 52659). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. The public comment period ended on September 12, 2002. We received comments from one Federal agency.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment as described below.

Iowa proposed to revise Iowa Administrative Code (IAC) 27-40.71(207) to incorporate by reference 30 CFR 840.11, as in effect on July 1, 2001. Previously, Iowa's provision incorporated by reference 30 CFR 840.11, as in effect on July 1, 1992. We find that Iowa's revision at IAC 27-40.71(207) is no less effective than the Federal regulations at 30 CFR 840.11. We also find that Iowa's revision partially satisfies the requirements of our letter dated June 17, 1997 (Administrative Record No. IA-440), that we sent to Iowa in accordance with 30 CFR 732.17(c).

We asked for public comments on the amendment, but did not receive any.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Iowa program (Administrative Record No. IA-447.3). The Natural Resources Conservation Service responded on July 22, 2002 (Administrative Record No. IA-447.2), stating that it had no concern over this proposed amendment.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Iowa proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from EPA (Administrative Record No. IA-447.3. EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On June 19, 2002, we requested comments on Iowa's amendment (Administrative Record No. IA-447.3), but neither responded to our request.

Based on the above finding, we approve the amendment Iowa sent us on June 14, 2002. We approve the regulations proposed by Iowa with the provision that they be fully promulgated in identical form to the rules submitted to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations at 30 CFR part 915, which codify decisions concerning the Iowa program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this final rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an approved State program be submitted to OSM for review as a program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any changes to State programs that are not approved by OSM. In the oversight of the Iowa program, we will recognize only the statutes, regulations, and other materials we have approved, together with any consistent implementing policies, directives, and other materials. We will require Iowa to enforce only approved provisions.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866 and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior 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. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kentucky program on May 18, 1982. You can find background information on the Kentucky program, including the Secretary's findings, the disposition of comments, and conditions of approval in the May 18, 1982, Federal Register (47 FR 21404). You can also find later actions concerning Kentucky's program and program amendments at 30 CFR 917.11, 917.12, 917.13, 917.15, 917.16, and 917.17.

By letter dated April 25, 2002 (Administrative Record No. KY-1530), Kentucky sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Kentucky sent the amendment at its own initiative. A summary of the amended language follows. It amends the Kentucky Revised Statutes (KRS) at 350.280 and is referenced as Kentucky House Bill 809.

We announced receipt of the proposed amendment in the June 19, 2002, Federal Register (67 FR 41653). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy. The public comment period ended on July 19, 2002.

We did not hold a public hearing or meeting because no one requested one. We did, however, receive four comments; one of these was from an industry group and three were from Federal agencies.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment to the extent described below. Any revisions that we do not specifically discuss below concern non-substantive wording or editorial changes.

Kentucky submitted the following amendment to KRS 350.280, Section (1): Added subsection (a) in its entirety to read (at page 1, line 2) “As used in this section, ‘he or she’ includes ‘person’ as defined in KRS 350.010.”

We find that this amended language is non-substantive and, as such, does not render the Kentucky program less stringent than SMCRA or less effective than the Federal regulations. The language is, therefore, approved.

Existing language in subsection (1) was renamed subdivision (b), and amendments were added. As now proposed, subdivision (b) reads as follows, with new language shown in italics:

We previously approved Kentucky's creation of an easement of necessity for a permittee or operator who lacks legal right of entry, or permission to enter, land in order to abate conditions that create imminent danger to the public or imminent, significant environmental harm, as cited in a notice or order of cessation under the approved Kentucky program. (66 FR 33020, 33021, June 20, 2001) However, subsection (1), as amended, creates a real property damage appraisal procedure that is not provided for in either SMCRA or the Federal regulations. While the language on its face does not appear inconsistent with SMCRA or its accompanying regulations, we are concerned that the appraisal process could delay the abatement of imminent dangers to the public or of imminent, significant environmental harm. Therefore, we find subsection (1), as amended, to be consistent with 30 CFR 843.11(b)(2), which requires expeditious abatement of imminent dangers and harms, but it is consistent only to the extent that the easement of necessity is created immediately after completion of the three steps contained in subsection (1)(b),and that the operator or permittee proceed immediately thereafter with abatement of the imminent danger to the public or the imminent, significant environmental harm that is the subject of the cessation order in the most expeditious manner physically possible, in accordance with the Federal regulations at 30 CFR 843.11(b)(2). As such, we are approving amended subsection (1) only to this extent.

Kentucky has repealed existing new subsections (2) through (6), which we have previously declined to approve (66 FR at 33021), and replaced them with new subsections (2)-(7) (from page 3, line 24), which read as follows:

As is the case with subsection (1), discussed above, subsection (2) creates a real property damage appraisal procedure that is not provided for in either SMCRA or the Federal regulations. While the procedure does not, on its face, appear inconsistent with SMCRA or its accompanying regulations, we are again concerned that the appraisal process could interfere with the timely abatement of violations. With respect to violations that do not create imminent danger to the public or imminent, significant harm to the environment, the maximum abatement period, subject to exceptions not applicable here, is 90 days. See SMCRA section 521(a)(3), 30 U.S.C. 1271(a)(3); 30 CFR 843.12(c). Therefore, we find that subsection (2) is consistent with these provisions of SMCRA and the Federal regulations, but only to the extent that the property damage appraisal process created in this subsection does not delay the abatement of violations beyond 90 days after their issuance. As such, we are approving subsection (2) only to this extent.

We received one public comment from an industry group.

The Kentucky Coal Association (KCA) commented by letter dated July 16, 2002 (Administrative Record No. KY-1551). The comment indicated that as a representative of large and small, surface and underground operators in the Kentucky coalfields, the KCA supports the amendment as proposed by Kentucky.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Kentucky program (Administrative Record No. KY-1537).

We received three agency comments, two in response to our request and one as a response to the Federal Register notice of the proposed rule (67 FR 41653).

The U.S. Department of Labor's Mine Safety and Health Administration (MSHA) commented by letter dated July 18, 2002 (Administrative Record No. KY-1554). MSHA indicated that the proposed amendment has no apparent impact concerning its office.

The U.S. Fish and Wildlife Service (FWS) commented by letter dated July 15, 2002 (Administrative Record No. KY-1555). FWS indicated that the amendment does not appear to have the potential for resulting in negative environmental effects. As such, the FWS did not object to the proposed regulatory change.

The U.S. Department of Agriculture's Forest Service (USFS) commented by letter dated August 1, 2002 (Administrative Record No. KY-1557). USFS indicated that they do not believe that Federal authorization exists to access national forest land without Forest Service approval.

In response, we note that the amendment appears to be applicable whenever access to land upon which reclamation has been ordered is denied, whether the land be private or Federal. While we are sympathetic to USFS's concerns, we have found that the amendment, as construed above, is consistent with SMCRA and its implementing Federal regulations. In addition, no provision in SMCRA may be construed to vest in any regulatory authority the jurisdiction to adjudicate property title disputes, such as a dispute as to whether an easement of necessity is lawful if created on national forest land. See SMCRA Section 507(b)(9), 30 U.S.C. 1257(b)(9). Should a dispute occur over access to national forest land by a coal permittee or operator, the burden is on the permittee or operator to pursue all legal means to achieve reclamation. In any event, we trust that, in the great majority of cases, the USFS will be amenable to allowing access to national forest land upon which surface coal mining reclamation has been ordered by the Kentucky Regulatory Authority or by OSM.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ).

None of the revisions that Kentucky proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. None of the revisions that Kentucky proposed to make in this amendment pertain to or have a perceived effect on historic properties. Therefore, we did not specifically ask the SHPO or ACHP for comments.

Based on the above findings we approve the Kentucky amendment, to the extent described, as submitted on April 25, 2002.

Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary.

Similarly, 30 CFR 732.17(a) requires that any change of an approved State program be submitted to OSM for review as a program amendment.

The Federal regulations at 30 CFR 732.17(g) prohibit any changes to approved State programs that are not approved by OSM. In the oversight of the Kentucky program, we will recognize only the statutes, regulations, and other materials we have approved, together with any consistent implementing policies, directives, and other materials. We will require Kentucky to enforce only approved provisions.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior 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. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal that is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Pennsylvania program on July 30, 1982. You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and conditions of approval in the July 30, 1982, Federal Register (47 FR 33050). You can also find later actions concerning Pennsylvania's program and program amendments at 30 CFR 938.11, 938.12, 938.15 and 938.16.

By letter dated February 25, 2002, Pennsylvania sent us an amendment to its program (Administrative Record No. PA 889.00) under SMCRA (30 U.S.C. 1201 et seq. ). Pennsylvania sent the amendment in response to the required program amendment at 30 C.F.R. 938.16(gggg) and to include changes made at its own initiative.

We announced receipt of the proposed amendment in the April 16, 2002, Federal Register (67 FR 18518). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendments adequacy. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on May 16, 2002. We did not receive any comments.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment.

In response to the required amendment found at 30 CFR 938.16(gggg), Pennsylvania proposed a revision to 25 Pa. Code 90.134(a). The proposed amendment contains language making the rule similar to the corresponding sections of the Federal regulations.

30 CFR 938.16(gggg) requires Pennsylvania to amend its performance standards for coal refuse disposal by requiring that haul roads and access roads be designed, constructed, and maintained to control or prevent erosion. Pennsylvania proposed to satisfy this required amendment by adding the phrase, “erosion and” to 25 Pa. Code 90.134(a). The language of the section now reads, “[h]aul roads and access roads shall be designed, constructed and maintained to control or prevent: erosion and contributions of sediment to streams or runoff outside the affected area * * *” Since Pennsylvania added the required language, we find that the proposed rule satisfies the required amendment and are therefore approving the amendment.

We are also approving the State's proposed changes to 25 Pa. Code 86.37, which contains criteria for permit approval or denial. The current language of 86.37(a)(5) requires that the “proposed permit area” exclude several enumerated categories.

The amendment we are approving replaces the phrase “the proposed permit area” with “the area covered by the operator's bond and upon which the operator proposes to conduct surface mining activities within the boundary of the proposed surface or coal mining activities permit.” Thus, the issue presented by this proposed amendment is whether the proposed language is no less effective than the Federal regulations at 30 CFR 773.15(c), which provide, as a precondition to permit approval, that the “permit area” not include certain protected lands. Based on the following discussion, we find that the proposed language is no less effective than its Federal counterpart.

The Federal definition of “permit area” is “the area of land, indicated on the approved map submitted by the operator with his or her application, required to be covered by the operator's performance bond under subchapter J of this chapter and which shall include the area of land upon which the operator proposes to conduct surface coal mining and reclamation operations under the permit, including all disturbed areas; provided that areas adequately bonded under another valid permit may be excluded from the permit area.” 30 CFR 701.5. Like the Federal definition, Pennsylvania's proposed amendment includes the area covered by an operator's bond and upon which surface coal mining and reclamation operations will be conducted as designated in the permit. However, unlike the Federal definition, the proposed language does not explicitly include “all disturbed areas.”

Although the proposed language does not explicitly cover all disturbed areas, it implicitly includes such areas by including the area covered by the operator's bond. Under 25 Pa. Code 86.143(b), an operator's bond must cover all disturbed areas. It states that “[a]n operator may not disturb surface acreage * * * prior to receipt of approval from the Department of a bond and issuance of a permit covering the surface acreage to be affected.” Thus, all areas to be disturbed must be covered by a bond. Further, 25 Pa. Code 86.143(c) provides that liability on the bond shall cover activities within the permit area as well as “effects resulting from the mining of the permit area * * *” Therefore, because the proposed amendment refers to an area of land that is as inclusive as the “permit area,” as defined in the Federal regulation, the amendment is no less effective than the Federal regulations at 30 CFR 773.15(c) and can be approved.

We are approving Pennsylvania's proposed change regarding performance standards for haul roads and access roads. The State proposed to amend its regulations at 25 Pa. Code Sections 87.160(a), 88.138(a), 88.231(a), 88.335(a), and 90.134(a) by removing the requirement that a haul road's or an access road's maintenance plan must be approved as part of the postmining land use before the road can be retained at the conclusion of mining activities. We are approving the proposed amendment because no Federal statutory or regulatory requirement exists mandating that a maintenance plan for haul or access roads be approved as part of a postmining land use.

30 CFR 780.37(a) and 30 CFR 784.24(a) require that each applicant for a surface coal mining and reclamation permit submit plans and drawings for each road to be constructed, used, or maintained within the permit area. These requirements include plans to remove and reclaim each road not to be “retained under an approved postmining land use.” 30 CFR 780.37(a)(6), 784.24(a)(6). Thus, while these Federal provisions imply that a road to be retained after mining and reclamation must be approved as part of the postmining land use, they do not require that a maintenance plan for such road be approved.

Similarly, 30 CFR 816.150(f) and 817.150(f) set forth reclamation requirements for roads not being retained under an approved postmining land use. Like 30 CFR 780.37(a) and 784.24(a), 30 CFR 816.150(f) and 817.150(f) only refer to roads, not any associated maintenance plans, as being approved as part of the postmining land use. Since neither SMCRA or its implementing regulations require a road maintenance plan to be approved as part of a postmining land use, the removal of such requirement by Pennsylvania does not render its program inconsistent with, less stringent than, or less effective than corresponding Federal law or regulations. Therefore, we are approving the amendment.

We asked for public comments on the amendment in an April 16, 2002 Federal Register notice, 67 FR 18518, but did not receive any specific comments. However, the Pennsylvania Coal Association (PCA) generally supported the amendment and urged us to approve it. It noted that the amendment will allow efficient and effective permitting and haul road maintenance practices.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Pennsylvania program (Administrative Record No. 889.01). The Mine Safety and Health Administration merely noted that the modifications in the amendment appeared to be minor. The U.S. Environmental Protection Agency (EPA) stated that no apparent inconsistencies exist between the amendment and the Clean Water Act or other statutes or regulations under its jurisdiction.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). We did not seek EPA concurrence on this amendment because we determined that it contains no such provisions.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On March 1, 2002, we requested comments on Pennsylvania's amendment (Administrative Record No. 889.01), but neither the SHPO nor the ACHP responded to our request.

Based on the above findings, we approve the amendment Pennsylvania sent us. To implement this decision, we are amending the Federal regulations at 30 CFR Part 938, which codify decisions concerning the Pennsylvania program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the Pennsylvania program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior 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. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

For the reasons set out in the preamble, 30 CFR Part 938 is amended as set forth below:

I. Background on the Texas Program II. Submission of the Proposed Amendment III. OSM's Findings IV. Summary and Disposition of Comments V. OSM's Decision VI. Procedural Determinations I. Background on the Texas Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Texas program on February 16, 1980. You can find background information on the Texas program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the February 27, 1980, Federal Register (45 FR 12998). You can find later actions concerning the Texas program at 30 CFR 943.10, 943.15, and 943.16.

By letter dated July 25, 2001 (Administrative Record No. TX-653.02), Texas sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Texas sent the amendment in response to our letter dated August 23, 2000 (Administrative Record No. TX-653), that we sent to Texas under 30 CFR 732.17(c). Texas proposed to amend Title 16 Texas Administrative Code Chapter 12.

We announced receipt of the amendment in the September 20, 2001, Federal Register (66 FR 48396). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the proposed amendment. The public comment period closed on October 22, 2001. We did not receive any comments and did not hold a public hearing or meeting because no one requested one.

During our review of the amendment, we identified incorrect reference citations and concerns relating to the definition of “valid existing rights.” We notified Texas of these concerns by an e-mail dated September 24, 2001, and a letter dated June 14, 2002 (Administrative Record Nos. TX-653.04 and TX-653.07, respectively). By letters dated October 22, 2001, June 5, 2002, and June 18, 2002 (Administrative Record Nos. TX-653.05, TX-653.06, and TX-653.08, respectively), Texas sent us additional explanatory information and revisions to its program amendment.

Based upon Texas' additional explanatory information and revisions to its amendment, we reopened the public comment period in the August 13, 2002, Federal Register (67 FR 52664). The public comment period closed on August 28, 2002. We did not receive any comments.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes, or revised cross-references and paragraph notations to reflect organizational changes resulting from this amendment.

The State regulations listed below contain language that is the same as or similar to the corresponding sections of the Federal regulations. Differences between the State regulations and the Federal regulations are minor.

Because the above State regulations have the same meaning as the corresponding Federal regulations, we find that they are no less effective than the Federal regulations. Therefore, we are approving them.

1. Texas proposed to remove its definition of “surface coal mining operations which exist on the date of enactment” found at TAC section 12.3(169). As a result of the removal of this definition, the State proposed to renumber the remaining definitions in this section. We are approving the removal of this definition and the subsequent renumbering of the remaining definitions because we removed the definition of “surface coal mining operations which exist on the date of enactment” from the Federal regulations at 30 CFR 761.5. Please see the Federal Register dated December 17, 1999 (64 FR 70831).

2. Texas proposed to revise its definition of “valid existing rights” found at TAC section 12.3(187) to be consistent with the corresponding Federal definition of “valid existing rights.”

On December 17, 1999 (64 FR 70766), we published our final rule redefining the circumstances under which a person has valid existing rights to conduct surface coal mining operations on lands listed in section 522(e) of SMCRA. This section prohibits or restricts surface coal mining operations on certain lands. Our final rule included a revised definition of valid existing rights found at 30 CFR 761.5. In paragraph (a) of this revised definition, we added a clause clarifying that the provisions requiring the use of state law to interpret documents does not apply if federal law provides otherwise. The clause reads, “unless Federal law provides otherwise.” Texas’ proposed definition of “valid existing rights” is substantively the same as the Federal definition, except that the State did not include this clause in its proposed definition. Though it is unlikely that Texas will have to make a determination of “valid existing rights” that will require the State to use applicable federal law to interpret documents relied upon to establish property rights, Texas sent us a letter dated June 18, 2002 (Administrative Record No. TX-653.08), clarifying that it will make any such determinations using the applicable federal law. Because Texas' proposed definition of “valid existing rights” is substantively the same as the Federal definition of “valid existing rights,” we are approving it.

Texas proposed to redesignate existing section 12.73 as new section 12.74. We are approving the redesignation because it does not change the content of the previously approved regulation in any way.

We asked for public comments on the amendment, but did not receive any.

Under 30 CFR 732.17(h)(11)(i) of the Federal regulations and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Texas program (Administrative Record Nos. TX-653.03 and TX-653.10). We did not receive any comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Texas proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record Nos. TX-653.03 and TX-653.10). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On August 6, 2001, we requested comments on Texas' amendment (Administrative Record Nos. TX-653.03 and TX-653.10), but neither responded to our request.

Based on the above findings, we approve the amendment as sent to us by Texas on July 25, 2001, and as revised on October 22, 2001, and June 5, 2002.

We approve the regulations that Texas proposed with the provision that they be published in identical form to the regulations sent to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations at 30 CFR part 943, which codify decisions concerning the Texas program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. SMCRA requires that the State's program demonstrates that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

In this rule, the State is adopting valid existing rights standards that are similar to the standards in the Federal definition at 30 CFR 761.5. Therefore, this rule has the same takings implications as the Federal valid existing rights rule. The taking implications assessment for the Federal valid existing rights rule appears in Part XXIX.E. of the preamble to that rule. See 64 FR 70766, 70822-27, December 17, 1999.

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior 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. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector cost of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act; * * * and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Utah program on January 21, 1981. You can find background information on the Utah program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Utah program in the January 21, 1981, Federal Register (46 FR 5899). You can also find later actions concerning Utah's program and program amendments at 30 CFR 944.15 and 944.30.

By letter dated March 28, 2002, Utah sent us an amendment to its program (UT-041-FOR, Administrative Record No. UT-1160) under SMCRA (30 U.S.C. 1201 et seq. ). Utah's original submittal included two separate proposed amendments. In a telephone conversation on April 2, 2002 (Administrative Record No. UT-1161), Utah agreed to our proposal to combine the two amendments into one amendment designated UT-041-FOR. Utah sent the amendment at its own initiative. The provisions of the Utah Administrative Rule (Utah Admin. R.) that Utah proposed to revise and add were: In its definitions at Utah Admin. R. 645-100-200, Utah proposed to remove the definition of “State-Appropriated Water Supply” and replace it with a new combined definition of the terms “Water Supply,” “State-appropriated Water,” and “State-appropriated Water Supply,” all of which it intends to be synonymous and to mean “state appropriated water rights which are recognized by the Utah Constitution or Utah Code;” at Utah Admin. R. 645-105-314, Utah proposed to add a new blaster certification rule that would require candidates for certification to be twenty-one years of age or older; at Utah Admin. R. 645-301-525.130, Utah proposed to add a new provision requiring a permit applicant to give a copy of the pre-subsidence survey and any technical assessment or engineering evaluation to the water conservancy district, if any, where the mine is located; at Utah Admin. R. 645-301-525.700, the State proposed to add a new requirement that the underground mine operator mail a notification of proposed mining to the water conservancy district, if any, in which the mine is located; at Utah Admin. R. 645-301-728.350, the State proposed to revise its rule to require that determinations of probable hydrologic consequences include findings on whether underground coal mining and reclamation activities conducted after October 24, 1992, may result in contamination, diminution, or interruption of “State-appropriated Water” in existence within the proposed permit or adjacent areas at the time the application is submitted, and to delete the existing phrase “and used for legitimate purposes within the permit or adjacent areas * * *” at the end of that sentence; at Utah Admin. R. 645-301-860.110 through “860.112, Utah proposed to add new requirements for companies that issue surety bonds to meet to provide the State with standards by which to judge their financial stability; at Utah Admin. R. 645-400-162 and 645-400-381, the State proposed to change its existing references to section 40-10-22 of the Utah Code Annotated (UCA) to reference UCA 40-10-19 so on-site compliance conferences will not be considered inspections in the context of that statutory provision; in the enforcement rule at Utah Admin. R. 645-400-319, Utah proposed to change the existing reference to Utah Admin. R. 645-300-147 to cite Utah Admin. R. 645-300-148 instead, which requires permittees to submit ownership and control information to the Division of Oil, Gas and Mining (DOGM); and at Utah Admin. R. 645-400-322, the State proposed to add the phrase “* * * which does not create an imminent danger or harm for which a * * *” to complete the sentence and characterize situations in which it will issue notices of violation rather than cessation orders.

We announced receipt of the proposed amendment in the May 17, 2002, Federal Register (67 FR 35077). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (Administrative Record No. UT-1163). We did not hold a public hearing or meeting because no one requested one. The public comment period ended on June 17, 2002. We received comments from one State agency and two Federal agencies.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment.

Utah's proposed revisions to the following rules contain wording that is the same as or similar to the corresponding sections of the Federal regulations (which are noted in parentheses):

1. Utah Admin. R. 645-400-162 and 645-400-381, changes existing references to section 40-10-22 of the Utah Code Annotated (UCA) to reference UCA section 40-10-19 instead, so on-site compliance conferences will not be considered inspections in the context of that statutory provision (30 CFR 840.16(b) and 843.20(a), respectively);

2. Utah Admin. R. 645-400-319, changes the existing reference to Utah Admin. R. 645-300-147 to reference 645-300-148 instead, which requires permittees to submit ownership and control information to DOGM (30 CFR 843.11(g)); and

3. Utah Admin. R. 645-400-322, adds the phrase “* * * which does not create an imminent danger or harm for which a * * *” to complete the sentence and characterize situations in which DOGM will issue notices of violation rather than cessation orders (30 CFR 843.12(a)(2)).

Because these proposed rules contain wording that is the same as or similar to the corresponding Federal regulations, we find that they are no less effective than the corresponding Federal regulations.

Utah proposes to delete its existing definition of “State-appropriated water supply” and replace it with a combined definition of the terms “water supply,” “State-appropriated water,” and “State-appropriated water supply.” Under the proposed combined definition, the three terms “ * * * are all synonymous and mean, for the purposes of the R645 Rules, state appropriated water rights which are recognized by the Utah Constitution or Utah Code.” The Federal counterpart term “drinking, domestic or residential water supply” is defined at 30 CFR 701.5.

In the December 4, 2001, Federal Register (66 FR 62917), we approved the existing definition of “State-appropriated water supply” in amendment UT-037-FOR. We found Utah's definition of that term was no less effective than the Federal definition of the counterpart term “drinking, domestic, or residential water supply.” As we approved it, “State-Appropriated Water Supply” meant “State-created water rights which are recognized under the provisions of the Utah Code.” Our approval noted that Utah's definition was based on its use of the term “State-appropriated water” at UCA 40-10-18(15)(c). “State-appropriated water” is not defined in title 40 of Utah's Code. However, in a January 29, 1997, letter (Administrative Record No. UT-1094), Utah asserted that use of the term “State-appropriated water” in its Code provides broader water replacement protection than the Federal term because the State's term includes the “* * * universe of legal water uses by the universe of legal water users * * *.” As such, “State-appropriated water” includes drinking, domestic, or residential water supplies from wells or springs and water used for other purposes, including agricultural irrigation and industrial water. The Federal term is limited to drinking, domestic or residential water supply from a well or spring unless the water supply is for direct human consumption, human sanitation, or domestic use. We accepted Utah's explanation in our August 4, 1997, approval of UT-035-FOR (62 FR 41845) and relied on it, in part, for our approval of Utah's definition of “State-appropriated water supply” in amendment UT-037-FOR ( Id .)

Our approval of Utah's definition of “State-appropriated water supply” in UT-037-FOR also was based on information the State provided to us in response to a question we asked in our October 1, 1998, letter describing our concerns for that amendment (Administrative Record No. 1125). We asked Utah to further clarify its interpretation of the term “State-appropriated water supply” to address whether legal water rights exist in the State that are recognized by Utah law but are not created by the State. Utah responded to our questions in an October 31, 2000, letter (Administrative Record No. UT-1145). As we noted in our approval of UT-037-FOR ( Id. , at 62928), Utah said the provisions of UCA 73-5-13 recognize water claims established by diversion (“diligence rights”) before Utah became a State and before it established the State Engineer's Office. The State's response concluded that “State-appropriated water” includes territorial water rights. Because the definition of the term “State-appropriated water supplies” as proposed in amendment UT-037-FOR was based on Utah's interpretation of “State-appropriated water,” we found it to be no less effective than the Federal term “drinking, domestic or residential water supply” and approved it.

Utah's combined definition of “water supply,” “State-appropriated water,” and “State-appropriated water supply” as proposed in this amendment refers to State-appropriated water rights recognized by the Utah Constitution and the Utah Code. Replacing the phrase “State-created water rights” in the existing definition with the phrase “state appropriated water rights” in the proposed definition accommodates the assertion that water rights existing before Utah became a State were not created by the State but nevertheless are recognized by Utah law. Further, DOGM explained that referring to water rights recognized by the Utah Constitution gives additional support to recognizing existing water rights that were established before Utah became a State (Administrative Record No. UT-1167). It also recognizes that mining might affect those water rights.

We searched Utah's R645 rules for the terms “water supply,” “State-appropriated water,” and “State-appropriated water supply” to determine if there are any uses of those terms that would conflict with the proposed definition. Those terms appear separately or together in definitions of: “Community or industrial building;” “essential hydrologic functions;” “developed water resources” as referred to in the definition of “land use;” “renewable resource lands” as used for the purposes of Utah Admin. R. 645-103; “replacement of water supply;” and “State-appropriated water supply” (to be replaced by the proposed combined definition). Those terms also appear separately or in combination at: Utah Admin. R. 645-103-322.300; -525.110, 120, and 130; -525.214; -525.400 and 480; -525.550; -728.350; and -731.530, 710, and 800. Utah's proposed definition is consistent with the context in which the terms are used in these rules. Making the three terms synonymous makes their use consistent throughout Utah's rules, reducing uncertainty over their intended meaning.

As proposed, the combined definition of the terms “water supply,” “State-appropriated water” and “State-appropriated water supply” recognizes water rights established before and after Utah became a State. Making the terms synonymous invokes the full protections provided by the State's rules wherever those terms appear for water rights that the Utah Constitution and Code recognize. The State's proposed definition also provides a potentially broader scope of water protection than does the Federal counterpart term “drinking, domestic or residential water supply.” Based on this reasoning, we find Utah's proposed definition is no less effective than the counterpart term's definition.

Utah proposes to add a new rule at Utah Admin. R. 645-105-314 that requires candidates for blaster certification to be 21 years of age or older. It also proposes to change Utah Admin. R. 645-105-312 and -105-313 to remove and add the word “and” after each clause, respectively, in view of adding the new rule at 645-105-314. Utah proposes these changes to make its rules consistent with Federal law for explosives handling. There is no provision in the 30 CFR regulations or SMCRA that expressly requires candidates for blaster certification to be at least 21 years old.

Explosive materials are within the jurisdiction of the Bureau of Alcohol, Tobacco, and Firearms (ATF) of the U.S. Department of the Treasury (U.S. Treasury). Federal regulations at 27 CFR Chapter I, Part 55, establish requirements for the shipment, transportation, and possession of explosive materials. They also impose requirements on granting licenses to individuals to engage in the business of importing, manufacturing, and dealing in explosive materials. Further, those regulations include requirements imposed on issuing permits to people who intend to acquire explosive materials for use. ATF defines explosive materials as “explosives, blasting agents, water gels, and detonators.” Subsections 55.26(c) and (c)(1) state that “[n]o person shall knowingly distribute explosive materials to any individual who * * * is under twenty-one years of age * * *.” Further, section 55.49(b) and (b)(1) state that “[t]he Chief, Firearms and Explosives Licensing Center, shall approve a properly executed application for a license or permit, if * * * the applicant is 21 years of age or older * * *.” Clearly, the intent of these Federal regulations is to restrict explosives handling, possession, and transport to individuals 21 years of age or older. Utah's proposed rule is consistent with these Federal regulations governing explosive materials.

In addition, Utah's rules for blaster training, examination and certification refer to knowledge of, and compliance with, Federal regulations and laws for explosives. At Utah Admin. R. 645-105-220, the State's rules note that “[t]raining includes, but is not limited to, the technical aspects of blasting operations, and Utah and Federal laws governing the storage, transportation, and use of explosives.” The Federal counterpart for this rule is found at 30 CFR 850.13(a)(1) and is worded similarly. Utah Admin. R. 645-105-240 goes on to say that “Training will include course work in, and discuss the practical application of: * * * * 247. Current federal and Utah rules applicable to the use of explosives * * *.” The Federal counterpart to this rule is 30 CFR 850.13(b)(7) and is worded the same. Utah Admin. R. 645-105-441.300 further provides that a blaster certification may be suspended or revoked for “[v]iolation of any provision of Utah or federal explosives laws or regulations * * *.” The Federal counterpart regulation is found at 30 CFR 850.15(b)(iii) and is worded the same.

We find Utah's proposed rule is consistent with the intent of its rules and the counterpart Federal regulations for blaster training, examination, and certification in general. We also find that it is consistent with, and no less effective than, the ATF's regulations requiring persons engaging in the explosives business or using explosives to be at least 21 years of age.

Utah proposes to include water conservancy districts among those to whom it gives pre-subsidence surveys and notices of proposed mining. Specifically, it proposes to revise Utah Admin. R. 645-301-525.130 by adding the phrase “* * * the water conservancy district, if any, in which the mine is located * * *” near the end of the last sentence. The resulting change requires permit applicants to give a copy of a pre-subsidence survey and any technical assessment or engineering evaluation to the water conservancy district, if any, where the mine is located in addition to giving copies to the property owner and DOGM. Such surveys describe the condition of certain buildings, dwellings and related structures and the quantity and quality of all State-appropriated water supplies in the permit and adjacent areas that might be adversely affected by subsidence. The proposed revision to Utah Admin. R. 645-301-525.700 adds the phrase “ * * * to the water conservancy district, if any, in which the mine is located and * * *” to the second sentence. That change requires the underground mine operator to mail a notification of proposed mining to the water conservancy district, if any, in which the mine is located in addition to all owners and occupants of surface property and structures above the underground workings at least six months prior to mining, or within a different period if approved by DOGM. This notice identifies specific areas where mining will occur, dates when specific areas will be undermined, and the location or locations where the operator's subsidence control plan may be examined.

Utah's existing rules provide for the same distribution of pre-subsidence surveys and public notices of proposed mining that the counterpart Federal regulations do. The Federal counterparts to Utah Admin. R. 645-301-525.130 and 645-301-525.700 are found at 30 CFR 784.20(a)(3) and 817.122, respectively. The existing Federal and State provisions require permit applicants to give pre-subsidence surveys, technical assessments, and engineering evaluations to property owners and to the regulatory authority and DOGM, respectively. DOGM is the regulatory authority in Utah. Both also require operators to mail public notices of proposed mining to all owners and occupants of surface property and structures above the underground workings. As currently written and approved, Utah's existing rules meet the minimum standard set by the Federal regulations.

Adding the new phrases to Utah's rules extends the distribution of its pre-subsidence surveys and public notices of proposed mining to more parties than required by the Federal regulations. The Federal regulations do not include water conservancy districts among the recipients of pre-subsidence surveys or public notices of proposed mining. That does not preclude Utah from including them in its rules, however. By including water conservancy districts among the recipients of pre-subsidence surveys and public notices of proposed mining, Utah recognizes the interest such districts have in the possible effects underground mining-related subsidence can have on State-appropriated water supplies and when those effects might begin to occur. Moreover, section 505(b) of SMCRA provides that “Any provision of any State law or regulation in effect upon the date of enactment of this Act, or which may become effective thereafter, which provides for more stringent land use and environmental controls and regulations of surface mining and reclamation operation than do the provisions of this Act or any regulations issued pursuant thereto shall not be construed to be inconsistent with this Act.” We find Utah's rules are no less effective than the counterpart Federal regulations as proposed with the added phrases.

Utah proposes to make three changes to Utah Admin. R. 645-301-728.350. The existing rule requires the probable hydrologic consequences (PHC) determination to include findings on whether underground coal mining and reclamation activities conducted after October 24, 1992, “* * * may result in contamination, diminution or interruption of State-appropriated water in existence at the time the application is submitted and used for legitimate purposes within the permit or adjacent areas.” Utah proposes to replace the word “water” with “Water” (changing the small case “w” to upper case “W”). It also proposes to delete the final phrase that reads “ * * * and used for legitimate purposes within the permit or adjacent areas * * *“ and replace it with the phrase “ * * * within the proposed permit or adjacent areas * * *” after the word “existence.” As proposed, the rule would require PHC determinations to include findings on whether underground coal mining and reclamation activities conducted after October 24, 1992, may contaminate, diminish, or interrupt “* * * State-appropriated Water in existence within the proposed permit or adjacent areas at the time the application is submitted.”

The counterpart Federal regulation is found at 30 CFR 784.14(e)(3)(iv). It requires the PHC determination to include findings on whether the underground mining activities conducted after October 24, 1992, may contaminate, diminish or interrupt “* * * a well or spring in existence at the time the permit application is submitted and used for domestic, drinking, or residential purposes within the permit or adjacent areas.”

Utah's proposed rule differs from the counterpart Federal regulation in its use of the term “State-appropriated Water” where the Federal regulation refers to “a well or spring * * * used for domestic, drinking, or residential purposes * * *.” As noted in our previous finding, Utah's proposed combined definition of “Water Supply,” “State-appropriated Water,” and “State-appropriated Water Supply,” makes those terms synonymous to mean “* * * state appropriated water rights which are recognized by the Utah Constitution or Utah Code.” In that finding, we concluded that Utah's proposed definition is no less effective than the definition of the Federal counterpart term “drinking, domestic or residential water supply” at 30 CFR 701.5. The Federal term “drinking, domestic or residential water supply” is defined in part to mean “ * * * water received from a well or spring and any appurtenant delivery system that provides water for direct human consumption or household use” (emphasis added). As such, Utah's use of the term “State-appropriated Water” in its proposed rule is analogous to the counterpart Federal regulation's reference to “a well or spring * * * used for domestic, drinking, or residential uses * * *.”

There are other differences between the wording of Utah's proposed rule and the counterpart Federal regulation. Utah's proposed rule requires the PHC determination to find if underground mining will adversely affect State-appropriated Water existing in the permit or adjacent areas when the application is submitted, but it does not expressly mention use of the water or where it is used. By comparison, the counterpart Federal regulation specifies that the PHC determination find if underground mining will adversely affect a well or spring existing at the time a permit application is submitted and used for domestic, drinking or residential purposes in the permit or adjacent areas. As stated before, in Utah's proposed combined definition, “State-appropriated Water” means State-appropriated water rights that are recognized by the Utah Constitution or Utah Code. We interpret section 717(a) of SMCRA as requiring deference to State water law on questions of water allocation and use (60 FR 16722, 16733; March 31, 1995). Title 73 of the Utah Code is entitled “Water and Irrigation.” Under the prior appropriation system of Utah water law, a water user who first puts water to use has the water right, and a water right is perfected when water is put to use (sections 73-3-1 and 73-3-17, respectively). As the State quoted in its January 29, 1997, letter (Administrative Record No. UT-1094) the Utah Supreme Court's discussion of J.J.N.P. Co. v. State of Utah ex rel. Division of Water Resources, 655 P.2d 1133 (Utah 1982) cited the provision of section 73-1-3 of the Utah Code (entitled “Beneficial use basis of right to use”) in explaining that:

Though Utah's proposed rule does not expressly mention water use, the term “State-appropriated Water” in its rule, by definition, invokes State-appropriated water rights recognized by the Utah Constitution or the Utah Code. Utah water rights, in turn, are based on putting water to beneficial use. In the context of water use in a predominantly semi-arid State such as Utah, we interpret the descriptive term “beneficial use” as stated by the Utah Supreme Court to include using water for domestic, drinking, and residential purposes. Therefore, we believe it is reasonable and consistent with Utah water law to interpret Utah's proposed rule as implying water use by referring to “State-appropriated Water.”

Similar reasoning applies to the question of where the water use must occur to be considered in the PHC determination's finding of potential adverse effects under Utah's proposed rule. Proposed Utah Admin. R. 645-301-728.350 addresses State-appropriated Water in existence within the proposed permit or adjacent areas at the time the application is submitted. As explained above, water use is a basis for a water right, and the definition of “State-appropriated Water” means State-appropriated water rights that are recognized by the Utah Constitution or Utah Code. Therefore, we believe it is reasonable and consistent with Utah water law to interpret Utah's proposed rule as applying to beneficial use of State-appropriated Water in the proposed permit or adjacent areas. Removing the reference to use for “legitimate purposes” does not reduce the rule's effectiveness. By recognizing water use for beneficial purposes as the basis of a water right, Utah water law confers legitimacy on such use. Moreover, the counterpart Federal regulation does not refer to “use for legitimate purposes” in its description of water use for domestic, drinking, or residential purposes, either.

The State explained that removing the word “water” with a small case “w” and replacing it with “Water” in the term “State-appropriated Water” does not alter the meaning of that term (Administrative Record No. UT-1169). Utah explained that “State-appropriated Water” at Utah Admin. R. 645-301-728.350 has no meaning other than the one proposed in this amendment for the combined definition of “Water Supply,” “State-appropriated Water,” and “State-appropriated Water Supply” at Utah Admin. R. 645-100-200. We found Utah's definition to be no less effective than the definition of the counterpart Federal term “drinking, domestic and residential water supply” in finding III.B.1 of this final rule.

Based on the reasoning presented above, we find proposed Utah Admin. R. 645-301-728.350 is consistent with titles 40 and 73 of the Utah Code and is no less effective than the counterpart Federal regulation at 30 CFR 784.14(e)(3)(iv).

The State proposed to revise and add requirements at Utah Admin. R. 645-301-860.110 through -860.112 that surety companies must meet in order to issue bonds for coal mines in Utah and that operators must comply with to ensure that they hold bonds issued by companies that meet the requirements of -860.110. Specifically, the State proposed to revise Utah Admin. R. 645-301-860.110 to require surety companies that issue bonds in Utah to have an A.M. Best rating of A− or better or an A.M. Best Financial Performance Rating (FPR) of 8 or better, and to be continuously listed in the current issue of the U.S. Treasury's Circular 570 . Circular 570 lists surety companies holding Certificates of Authority from the U.S. Treasury. Utah also proposed to add Utah Admin. R. 645-301-860.111, which gives operators 120 days to obtain a surety bond with companies that meet the standards of proposed -860.110 (if they do not have such a bond already) or face enforcement action. Under proposed Utah Admin. R. 645-301-860.112, if DOGM notifies an operator that a surety company guaranteeing its performance does not meet the standard of -860.110, the operator has 120 days to correct the problem or face enforcement action.

The Federal counterpart regulation at 30 CFR 800.20(a) only requires that “[a] surety bond shall be executed by the operator and a corporate surety licensed to do business in the State where the operation is located.”

Utah intends to establish a more secure bonding program with these proposed additional rule requirements. In order to avoid inadequate bond coverage due to surety company insolvencies, Utah proposed to allow only surety companies deemed to be financially strong by A.M. Best and listed in Circular 570 to issue bonds to guarantee coal mine reclamation performance in Utah.

A.M. Best is recognized as the leading provider of independent ratings of an insurance/surety company's financial strength and ability to meet its obligations. A.M. Best assigns a rating after it conducts an extensive quantitative and qualitative evaluation of a surety company's financial strength, operating performance, and market profile. While having an A− [excellent] rating or a Financial Performance Rating of 8 or better from A.M. Best is no guarantee that an insolvency will not occur, accepting surety bonds only from surety companies that meet the financial criteria to earn these ratings indicates that insolvency is far less likely.

A.M. Best's highest ratings are A++ and A+, which indicate a superior financial condition. A Best's rating of A− indicates that a company's overall financial condition is excellent. As A.M. Best stated, earning a Financial Performance Rating (FPR) of 8 or better from A.M. Best means a “* * * company has, on balance, very strong financial strength, operating performance and market profile when compared to the standards established by the A.M. Best Company. These companies, in [its] opinion, have a strong ability to meet their ongoing obligations to policy holders.”

Requiring a surety company to be listed in the U.S. Treasury's Circular 570 provides additional assurance that a surety company is able to meet its obligations according to the financial requirements at 31 CFR part 223. Utah's proposal to require that surety companies be listed in Circular 570 applies to all of Utah's coal mining surety bonds, notwithstanding Federal lands and Federal co-obligees.

The U.S. Treasury establishes a per-bond underwriting limitation based on its in-depth financial analysis of a surety company that applies for authorization to write Federal bonds. Surety companies that are granted a Certificate of Authority are listed in Circular 570 . Each year, surety companies have to re-apply to be listed. The U.S. Treasury requires listed companies to submit quarterly reports that list all bonds issued on which the United States is an obligee or co-obligee. If at any time the U.S. Treasury determines that a surety company no longer meets the financial criteria to be listed in Circular 570 , the U.S Treasury terminates the surety company's Certificate of Authority. Often, A.M. Best's downgrades of surety companies correspond to the U.S. Treasury's terminations of surety companies. Utah's proposal provides the State with the ability to be pro-active in its efforts to maintain a more secure bonding program.

Utah's proposal to give operators 120 days to comply with the requirement to have bonds with companies that meet the new standards should provide adequate time for operators to seek surety bonds or other allowable forms of bond with surety companies that meet the proposed standards.

For the reasons described above, we find proposed Utah Admin. R. 645-301-860.110, -860.111, and -860.112 are no less stringent than SMCRA and no less effective than the Federal regulations.

We asked for public comments on the amendment in letters dated April 2, 2002, and in the May 17, 2002, Federal Register (Administrative Record Nos. UT-1163 and UT-1170, respectively). We received comments from one State agency and two Federal agencies. We did not receive any public comments on the proposed amendment.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Utah program (Administrative Record No. UT-1163).

On April 9, 2002, the Ogden regional office of the U.S. Department of Agriculture, Forest Service, called us to say the Forest Service had no comments on the amendment (Administrative Record No. UT-1164).

In a letter dated April 18, 2002, the U.S. Department of the Interior, Fish and Wildlife Service responded to our request by stating that it had no comments on the amendment (Administrative Record No. UT-1168).

Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ).

None of the revisions that Utah proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, we requested EPA's comments on the amendment under 30 CFR 732.17(h)(11)(i) (Administrative Record No. UT-1163). EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. In letters dated April 2, 2002, we requested comments on Utah's amendment from the SHPO and ACHP (Administrative Record No. UT-1163).

The Utah SHPO responded to our request for comment in a letter dated April 12, 2002 (Administrative Record No. UT-1165). The SHPO found that the proposed amendment has no potential to affect cultural resources.

We did not receive any comments on the amendment from the ACHP.

We approve Utah's amendment based on the findings presented above.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 944, which codify decisions concerning the Utah program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires the State's program to demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866 (Regulatory Planning and Review).

The Department of the Interior conducted the reviews required by section 3 of Executive Order 12988 and determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

On May 18, 2001, the President issued Executive Order 13211, which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior 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. ). The State submittal, which is the subject of this rule, is based on counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect on a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: a. Does not have an annual effect on the economy of $100 million; b. will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and c. does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the State submittal that is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act'; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Wyoming program on November 26, 1980. You can find background information on the Wyoming program, including the Secretary's findings, the disposition of comments, and conditions of approval in the November 26, 1980, Federal Register (45 FR 78637). You can also find later actions concerning Wyoming's program and program amendments at 30 CFR 950.11, 950.12, 950.16 and 950.20).

By letter dated July 20, 2001, Wyoming sent us an amendment to its program (administrative record no. WY- 34-01) under SMCRA (30 U.S.C. 1201 et seq. ). Wyoming sent the amendment in response to a December 23, 1985, letter (administrative record no. WY-34-07) that we sent to Wyoming in accordance with 30 CFR 732.17(c), in response to the required program amendments at 30 CFR 950.16(d), (e), (h), (i), (ii)(2), (jj); State Program Amendment disapprovals at 30 CFR 950.12(a)(3) and (4); and to include the changes made at its own initiative. The provisions of its Coal Rules that Wyoming proposed to revise were: (1) Chapter 2, Section 2(a)(vi)(L)(III), water quantity descriptions; (2) Chapter 2, Section 2(a)(vi)(L)(IV), water quality sampling; (3) Chapter 2, Section 2(a)(vi)(L)(iv), surface water information—acidity; (4) Chapter 2, Section 2(a)(vi)(M)(III), sampling and analysis methodology; (5) Chapter 2, Section 2(a)(vi)(M)(III)(4), ground water information; (6) Chapter 2, Section 2(a)(vi)(O), probable hydrologic consequences determination; (7) Chapter 2, Section 2(b)(xi)(D)(I)(1), surface water monitoring plan; (8) Chapter 2, Section 2(b)(xi)(D)(I)(2), surface water monitoring plan contents; (9) Chapter 2, Section 2(b)(xi)(D)(I)(3), impacts of data upon hydrologic balance; (10) Chapter 2, Section 2(b)(xi)(D)(II)(1 and 2), groundwater monitoring plan and contents; (11) Chapter 2, Section 2(b)(xii), probable hydrologic consequences; (12) Chapter 3, Section 2(c)(viii)(D through G), alluvial valley floors; (13) Chapter 4, Section 2(c)(xii)(D)(IV), coal mine waste impoundments; (14) Chapter 4, Section 2(i), surface water and ground water quality and quantity monitoring; (15) Chapter 4, Section 2(i)(i), removes redundant groundwater language; (16) Chapter 4, Section 2(w), to prevent material damage to hydrologic balance outside the permit area; (17) Appendix A, Appendix IV, to change the list of plant species of special concern; (18) Codified Disapproval at 30 CFR 950.12(a)(4), elevations and locations of stations to monitor water quality, quantity, fish and wildlife and air quality; (19) Required Amendment at 30 CFR 950.16(ii)(2), fish and wildlife habitat and shrub density; and (20) Required Amendment at 30 CFR 950.16(jj), shrub standard for grazing land.

We announced receipt of the proposed amendment in the October 11, 2001, Federal Register (66 FR 51891). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendments adequacy (administrative record no. WY-34-10). We did not hold a public hearing or meeting because no one requested one. The public comment period ended on November 13, 2001. We received comments from one Federal agency.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment.

1. Chapter 2, Section 2(a)(vi)(L)(IV), 30 CFR 780.21(b)(2), Surface Water Information—acidity.

2. Chapter 2, Section 2(a)(vi)(O), Probable Hydrologic Consequences (PHC) Determination.

3. Chapter 2, Section 2(b)(xi)(D)(I)(3), Use of Data to Determine Impacts of the Operation Upon Hydrologic Balance.

4. Chapter 3, Section 2(c)(viii)(D through G), Alluvial Valley Floors.

5. Chapter 4, Section 2(c)(xii)(D)(IV), Coal Mine Waste Impoundment.

6. Chapter 4, Section 2(w), Prevention of Material Damage to the Hydrologic Balance Outside of the Permit Area.

Because these proposed rules contain language that is the same as or similar to the corresponding Federal regulations, we find that they are no less effective than the corresponding Federal regulations.

Wyoming's Coal Rules do not currently require the monitoring of “seasonal flow rates” within a surface water system to be included in a mine permit application. We pointed this out to Wyoming in a 30 CFR part 732 letter dated December 23, 1985, and cited the Federal rules at 30 CFR 780.21(b)(2).

Wyoming is now proposing to add, “Water quantity descriptions shall include, at a minimum, baseline information on seasonal flow rates * * *.” With the addition of seasonal flow rates, this Wyoming regulation is as effective as its Federal counterpart.

According to a December 23, 1985, 30 CFR part 732 letter that we sent to Wyoming, Chapter 2, Section 2(a)(VI)(L)(IV) of Wyoming's Coal Rules were less effective than the Federal counterpart rules at 30 CFR 780(21)(a). Wyoming is therefore now proposing new language to correct this problem. Specifically, whereas previously Wyoming's Coal Rules did not specify that all water quality sampling required water quality data sufficient to identify seasonal variation, the revised rule proposed by Wyoming in this amendment states that, “All surface water-quality sampling and analyses performed to meet the requirements of this Section shall be conducted according to the methodology in the 20th edition of ‘Standards Methods for the Examination of Water and Wastewater,’ or the methodology in 40 CFR Part 136—‘Guidelines Establishing Test Procedures for the Analysis of Pollutants,’ as amended on January 16, 2001. Contact the Wyoming Land Quality Division for information on how to obtain a copy of either reference materials.” The new proposed rule goes on to specify what data is to be included. 40 CFR part 136 gives the procedures for water-quality analyses and, since this is referenced in the revised State rules, the State rule is as effective as the Federal regulation.

The Federal regulations at 30 CFR 780.21(a) establish that water quality analyses must be performed according to the “Standard Methods for Examination of Water and Wastewater,” or the methodology in 40 CFR parts 136 and 434.

Wyoming's proposal requires the analyses to be performed according to the “Standard Methods for Examination of Water and Wastewater” or 40 CFR part 136. Like 40 CFR part 136, part 434 pertains to the NPDES program. Wyoming states that the Land Quality Division is not responsible for the National Pollutant Discharge Elimination System (NPDES) program in Wyoming; the NPDES program is enforced by Wyoming's Water Quality Division (WQD). OSM understands that WQD will enforce NPDES water quality standards required under SMCRA, either using “Standard Methods * * *” or the methodology 40 CFR Parts 136 and 434.

On this basis Wyoming's provision at Chapter 2, Section 2(a)(vi)(M)(iii) is no less effective than 30 CFR 780.21(a).

This revision will require that pH be included as one of the groundwater quality parameters to be measured and incorporated into the permit application because it is required in the Federal regulations at 30 CFR 780.21(b)(1). Wyoming is doing this pursuant to codified program amendment 30 CFR 950.16(h) that was published in the November 24, 1986, Federal Register (51 FR 42209, 42211). The State's proposed rule is no less effective than the Federal counterpart regulation.

The State's proposal is very similar to its Federal counterpart (30 CFR 780.21(j)(1)) with the exception that it does not specifically mention that the monitored parameters should relate to the effluent limitations at 40 CFR part 434. This omission is irrelevant, however, since the proposed regulation allows the State to determine what parameters are necessary to protect the hydrologic balance, and it can include parameters monitored in the NPDES program if it's deemed necessary.

Therefore, the proposed revised rule is no less effective than its Federal counterpart.

This amendment clarifies the minimum parameters that shall be sampled during monitoring and transfers language currently found in Chapter 4, Section 2(i). In addition, it prescribes quarterly monitoring (unless an alternate frequency is approved by the Administrator of Wyoming's Land Quality Division) but allows operators to keep the results on-site and report them in the annual report. The effectiveness of the alternate frequency is discussed under findings no. B.7 and B.8 below.

Wyoming's proposal for surface water and ground water monitoring provide that monitoring shall be conducted quarterly unless an alternative frequency appropriate to the monitoring site is approved by the Administrator. The Federal counterpart for both surface and groundwater monitoring requires monitoring every three months.

The Federal regulations also require the monitoring data to be submitted to the regulatory authority every three months. However, we approved Wyoming's Land Quality Division's (LQD) approach to allowing operators to keep the results on-site and report them in the annual report. This approval was contained in the July 25, 1990, Federal Register notice (55 FR 30221, 30225).

In its amendment submission, Wyoming states:

In our review of the amendment, we asked Wyoming (administrative record no. WY-34-13) for additional explanation of the provisions allowing the Administrator to approve an alternative frequency for surface water and groundwater monitoring. In a letter dated January 17, 2002 (administrative record no. WY-34-14), Wyoming stated:

We agree that Wyoming's rules at Chapter 2, Section 2(b)(xi)(D)(I)(2) and (II)(2) provide the same protection for groundwater and surface water resources as the Federal rules at 780.21(i) and (j) and are therefore no less effective.

In order to make its rule on Probable Hydrologic Consequences determinations no less effective than the Federal rules, Wyoming proposes the addition of the following language to its rule: “The PHC determination shall be based on baseline hydrologic, geologic and other information collected for the permit application and may include data statistically representative of the site.” In a 30 CFR part 732 letter dated December 23, 1985, OSM required the State to do this and supplied the exact language to be used (which the State used). The State defines the term “general area” that it uses in this rule in Chapter 1, Section 2(an).

Based on the above, we find the revised State rule to be no less effective than the Federal rules.

The addition of language to Chapter 2, Section 2(b)(xi)(D)(II)(1 and 2) [“The plan shall provide for the monitoring of parameters that relate to the suitability of the groundwater for current and approved postmining land uses”] made that language at Chapter 4, Section 2(i)(i) redundant and therefore unnecessary. It is therefore proposed to be eliminated and will not make the State rule less effective than the Federal rule.

Although not required by Federal regulations, Wyoming lists its endangered and threatened species as well as its candidates for threatened and endangered species in an appendix to its regulations. The status of Wyoming's current list has changed requiring that it be updated in order to be accurate. Specifically, only one plant species had been listed as “threatened” or “endangered.” Three other candidates were potential candidates for listing. Now, however, there is one threatened, one endangered and two potential candidates. In addition, Wyoming will add “species of special concern” to its list. This updated list is approved.

We had codified at 30 CFR 950.12(a)(4) our disapproval of Wyoming's May 1, 1986, regulations at Chapter II, Section 3(a)(vi)(M) regarding the deletion of the locational data requirements for monitoring stations. In an informal submittal dated January 29, 1991, Wyoming asserted that the locational data requirements were present in its current rules at Chapter II, Section 3(a)(vi)(C)(VIII), now renumbered Chapter 2, Section 2(a)(vi)(J)(VIII). In a comment letter dated December 23, 1991, We agreed with Wyoming's explanation that the use of this regulation was the correct counter-part regulation to describe the locational data requirements of baseline data gathering stations, and is no less effective that the Federal regulations. Therefore, Wyoming's regulations at Chapter 2, Section 2(a)(vi)(J)(VIII) are in accordance with the Federal regulations and resolves the disapproval codified at 30 CFR 950.12(a)(4).

Chapter 2, section 2(b)(iv)(C) of Wyoming's rules requires a plan to assure revegetation of all affected land in accordance with chapter iv, section 2(d). “The plan shall include the method and schedule of revegetation, including but not limited to species of plants, seeding rates, seeding techniques, mulching requirements or other erosion control techniques, and seeding times to be used in a given area for reclamation purposes. The standards and specifications adopted by the State Conservation Commission for mine reclamation shall be considered by the applicant during the preparation of the reclamation plan whenever practicable. The Wyoming Game and Fish Department (WGFD) shall be consulted and its approval shall be required for minimum stocking and planting arrangements of trees and shrubs, including species composition and vegetative ground cover for crucial and critical habitat. The WGFD shall be consulted for minimum stocking and planting arrangements of trees and shrubs, including species composition and vegetative ground cover for important habitat. The Wyoming Department Of Agriculture shall be consulted regarding croplands and erosion control techniques.

Chapter 4, section 2(d)(x)(e)(iii) of Wyoming's coal rules requires for areas containing designated critical or crucial habitat, the WGFD shall be consulted about, and its approval shall be required for, minimum stocking and planting arrangements of shrubs, including species composition. For areas determined to be important habitat, the WGFD shall be consulted for recommended minimum stocking and planting arrangements of shrubs, including species composition, that may exceed the programmatic standard discussed above.

Federal regulations at 30 CFR 950.16(ii)(2) require Wyoming to revise the rules at chapter 2, section 2(b)(iv)(C), and Chapter 4, section 2(d)(x)(E)(III), to require consultation with and approval by the WGFD of tree and shrub standards for all lands to be reclaimed for “fish and wildlife habitat” land use.

In the August 6, 1996, preamble (61 FR 40738), in discussing the required program amendment at 30 CFR 950.16(ii)(2), we indicated that the rules at Chapter 2, section 2(b)(iv)(C) and Chapter 4, section 2(d)(x)(E)(III) do not require consultation and approval on all surface mined lands to be reclaimed for a “fish and wildlife habitat” land use. The rules require consultation and concurrence on critical habitat and crucial habitat, but they do not require consultation and concurrence on lands to be reclaimed for the fish and wildlife habitat land use. The Federal regulations at 30 CFR 816.116(b)(3)(i) require, for areas to be developed for the fish and wildlife habitat land use, consultation and concurrence by the State agency responsible for the administration of the wildlife program on minimum stocking and planting arrangements for tree and shrub stocking. To the extent that the State rules at Chapter 2, section 2(b)(iv)(C), and chapter IV, section 2(d)(x)(E)(III), do not require consultation with and approval by the WGFD on minimum stocking and planting arrangements for tree and shrub stocking on lands to be reclaimed for the fish and wildlife habitat land use, we determined that they were less effective than the Federal regulations at 30 CFR 816.116(b)(3)(i). We approved the rules at chapter II, section 2(b)(iv)(C) and chapter IV, section 2(d)(x)(E)(III) but required Wyoming to revise them to require consultation with and approval by the WGFD of the tree and shrub standards for all lands to be reclaimed for the fish and wildlife habitat land use.

In response to the required amendment, Wyoming responded that this topic was discussed in the April 9, 1996. letter to us. In this letter, Wyoming explained that the Wyoming (Chapter 1, Section 2(bc)(viii) and Federal (30 CFR 701.5) definitions for fish and wildlife habitat are as follows:

In the entire state of Wyoming, there is very little habitat which is dedicated wholly or partially to the production, protection or management of species of fish or wildlife. Even habitat considered crucial or critical will in most cases be subject to livestock grazing and a host of recreational uses. Consequently, if limited to this definition, there would be little fish or wildlife habitat in Wyoming because of the multiple use so prevalent here. This fact was recognized by the participants in the shrub standard negotiations hosted by the WGFD. Consequently, Wyoming did not pursue the rule change requested by the required program amendment because it is not applicable to the way that fish and wildlife habitat is designated within the context of reclamation.

As a matter of compromise, all participants in the shrub standard negotiations agreed (including WGFD) that the WGFD would maintain very specific consultation and concurrence on critical and crucial habitats. Whereas, on habitats classified by the WGFD as important, the WGFD would limit their role to that of consultation only. In addition, the Wyoming rules at Chapter 4, section 2(d)(x)(E)(II) require that approved shrub species and seeding techniques be applied to all remaining grazing lands. This requirement has been part of Wyoming's rules since 1986, when the goal of one shrub per square meter on 10 percent of the affected area superseded the equal shrub density requirement. This requirement for additional seeding of shrubs was added in recognition of the need for shrubs to be applied to all surfaces reclaimed for dual use by wildlife and livestock.

WGFD reviews all reclamation plans proposed by coal operators prior to the approval of such plans. Consequently, the WGFD is consulted on such reclamation plans and is provided the opportunity to comment on proposed plans and request changes as needed. Further, the Wyoming rules also contain an entire section within Chapter 4, outlining the required fish and wildlife performance standards.

Operators must provide detailed information on how they will minimize disturbance and adverse impacts on fish, wildlife and related environmental values and achieve enhancement of such resources where practicable. The LQD relies on the expertise of the WGFD to review an operator's proposal and ask for changes needed to ensure that the above environmental values and enhancements are met.

In addition, the 1980 version of Wyoming's rules (Chapter 4, section 3(d)(6)(A)) required that when wildlife habitat is part of the postmining land use, shrubs and trees shall be returned to a density at least equal to that existing on the area before mining. This language was specifically aimed at the land use and not the designation of the habitat because of the restrictive wording in the definition of fish and wildlife habitat. The current rule at Chapter 4, section 2(d)(x)(E) also acknowledges the use of Wyoming's rangelands by wildlife with the following language: “The postmining density, composition and distribution of shrubs shall be based upon site specific evaluation of premining vegetation and wildlife use.”

The State's response concludes that in recognition of the strong role the WGFD already plays in the review of coal mining permits and how reclamation is carried out, the very limiting definition for fish and wildlife habitat and the fact that the WGFD was part of the shrub density negotiations in 1994 and they concurred with all final decisions, the LQD does not feel it is necessary to specifically address the WGFD's role with respect to fish and wildlife habitat. All participants in the shrub density discussions, as well as the Wyoming Legislature, have indicated that the role of the WGFD in the oversight of Wyoming's coal mine reclamation has been appropriately delineated through the implementing statutes, rules and regulations.

Based on Wyoming's response, we have reevaluated the required program amendment. The currently approved shrub density standards are applicable to all grazing lands (the predominant postmining land use in Wyoming) where shrubs existed prior to mining. As stated in the State's definition of grazing land, this land use includes use by wildlife. The approved Wyoming shrub density standards are programmatic standards that were developed in consultation with and concurrence from the WGFD. WGFD consultation and concurrence is required for minimum planting and stocking arrangements of shrubs, including species composition, for areas containing critical and crucial wildlife habitat. It is our experience that in the West the vast majority of the reclaimed land is subject to multiple use by both livestock and wildlife. In such cases, the lands could be subject to the revegetation success standards of cover, production and shrub density. Under the Wyoming program, these multiple use lands would be defined as having a grazingland land use. These lands would be subject to the programmatic shrub density standards that were developed in consultation with, and with approval of, the WGFD also using the cover and production standards. The effect is the same.

In addition, the Wyoming LQD has a Memorandum of Understanding (MOU) with WGFD (administrative record no. WY-34-11). The MOU clearly defines the roles and responsibilities of both the agencies and provides procedures for timely disposition of issues regarding the effects of mining and reclamation activities on fish, wildlife, and their habitats in Wyoming. This provides further assurance that WGFD actively participates in the protection of fish and wildlife habitat in Wyoming.

Based on the information provided by Wyoming and the record on development of the existing programmatic shrub density, we have determined that Wyoming's program is consistent with and no less effective than the Federal regulations at 30 CFR 816.116(b)(3)(i) and remove the required program amendment at 30 CFR 950(ii)(2).

In 1995 Wyoming revised its regulations at Chapter 1, section 2(bc)(xi) to define “treated grazing land” as grazing land which has been altered to reduce or eliminate shrubs provided such treatment was applied at least five years prior to submission of the state program permit application. However, grazing land altered more than five years prior to submission of the state program permit application on which full shrubs have reestablished to a density of at least one per nine square meters does not qualify as treated grazing land.

In the August 6, 1996, preamble (61 FR 40740), in discussing the approval of the “treated grazing land” definition with a required program amendment at 30 CFR 950.16(jj), we indicated that we were requiring Wyoming to clarify the revegetation standard for grazingland that is affected after the date of our approval and that was treated less than 5 years prior to the submission of the permit application.

As set forth in the proposed definition for “treated grazing land” at Chapter 1, section 2(bc)(xi), grazing land that is disturbed after the date of our approval of these rules and that was treated less than 5 years prior to the submission of the permit application is not “treated grazing land.” As set forth in the definition for “eligible land” at Chapter 1, section 2(ac), this grazing land is eligible land that is subject to the shrub standard set forth at chapter 4, Section 2(d)(x)(E), which at subsection (I) states that “[e]xcept where a lesser density is justified from premining conditions in accordance with Appendix A, at least 20 percent of the eligible land shall be restored to shrub patches supporting an average of one shrub per square meter.”

The preamble indicates that given Wyoming's rationale that it wanted to take away any incentive for an operator to reduce premining shrub densities so that fewer shrubs would have to be established on reclaimed grazinglands, it is not likely that Wyoming intended that the postmining shrub reestablishment standard could be a lesser density than was based on the premining, treated condition. Even so, the language of the rules could be interpreted to allow this. Alternatively, it's possible that Wyoming intended that any operator treating grazing land less than 5 years prior to the submission of the permit application would then automatically have to reclaim to the maximum standard of at least one shrub per square meter on 20 percent of the eligible land.

There is no direct counterpart definition for “treated grazing land” in the Federal regulations. However, 30 CFR 816.116(b)(1) requires that standards for success shall be applied in accordance with the approved postmining land use and, at a minimum, for areas developed for use as grazingland, the ground cover and production of living plants on the revegetated area shall be at least equal to that of a reference area or “such other success standards approved by the regulatory authority.”

The preamble (61 FR 40740) concluded that because Wyoming's rules are unclear as to the shrub reestablishment standard for grazingland that is affected after the date of our approval and that was treated less than 5 years prior to the submission of the permit application, we found that Wyoming's proposed definition for “treated grazing land” at chapter 1, section 2(bc)(xi), as applied in conjunction with the proposed definition for “eligible land” at Chapter 1, section 2(ac), the proposed rule at Chapter 4, section 2(d)(x)(E)(I), and appendix A to the rules at section VIII.E, did not clearly satisfy for this class of grazing land the Federal regulation at 30 CFR 816.116(b)(1)—that requires the regulatory authority to set standards of revegetation success for areas developed for grazing land. Therefore, we required Wyoming to revise the definition for “treated grazing land” at chapter 1, section 2(bc)(xi), to otherwise revise its rules, or to provide us with a policy statement, clarifying the shrub standard for grazingland that is affected after the date of our approval and that was treated less than 5 years prior to the submission of the permit application.

In response to the required amendment Wyoming does not propose to change any rules to address this question. Instead, the following policy has been adopted by the LQD. This policy was presented at a public workshop sponsored by the LQD held on September 30 and October 1, 1996. The purpose of this workshop was to explain the shrub density standard to coal operators, consultants and LQD staff members.

In the regulations at 30 CFR 950.16(jj), we clearly allow the use of a policy statement to address the required amendment. For areas disturbed in any way that removes shrubs between the August 6, 1996, OSM approval date and less than five years before the acreage is submitted as part of a coal permit application or coal permit amendment application, the Wyoming policy statement clearly sets a shrub density standard based on the shrub density of adjacent, undisturbed representative lands. This adequately addresses our concern and resolves the outstanding required amendment. As proposed, the policy statement makes the definition of “treated grazing land” no less effective than the Federal regulations.

We asked for public comments on the amendment on July 26, 2001 (administrative record no. WY-34-6), but received none.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Wyoming program (administrative record no. WY-34-6).

We subsequently received a September 18, 2001, letter from Marvin W. Nichols, Jr., Administrator for Coal Mine Safety, with the Department of Labor's Mine Safety and Health Administration (MSHA) (administrative record no. WY-34-9).

MSHA stated that only changes to Chapter 4 of the Wyoming Rules have any impact on the activities of MSHA, that they don't conflict with MSHA's requirements, and that some of Wyoming Rules have restrictions greater than MSHA's.

Wyoming having greater restrictions than MSHA, however, presents no problem.

Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ).

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from EPA (administrative record no. WY-34-5). EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On July 26, 2001, we requested comments on Wyoming's amendment (administrative record no. WY-34-4), but neither responded to our request.

Based on the above findings, we approve the amendment Wyoming sent to us.

We approve, as discussed in: finding no. 9, Chapter 2, Section 2(a)(vi)(L)(III) concerning water quantity descriptions; finding no. 10, Chapter 2, Section 2(a)(vi)(L)(IV), concerning water quality sampling; finding no. 1, Chapter 2, Section 2(a)(vi)(L)(v), concerning dissolved and suspended solids; finding no. 2, Chapter 2, Section 2(a)(vi)(M)(III), concerning sampling and analysis methodology; finding no. 11, Chapter 2, Section 2(a)(vi)(M)(III)(4), concerning ground water information; finding no. 3, Chapter 2, Section 2(a)(vi)(O), concerning probable hydrologic consequences determination; finding no. 12, Chapter 2, Section 2(b)(xi)(D)(I)(1), concerning surface water monitoring plans; finding no. 13, Chapter 2, Section 2(b)(xi)(D)(I)(2), concerning surface water plan contents; finding no. 4, Chapter 2, Section 2(b)(xi)(D)(I)(3), concerning impacts of data upon hydrologic balance; finding no. 14, Chapter 2, Section 2(b)(xi)(D)(II)(1 and 2), concerning groundwater monitoring plan and contents; finding no. 5, Chapter 2, Section 2(b)(xii), concerning probable hydrologic consequences determination; finding no. 6, Chapter 3, Section 2(c)(viii)(D through G), concerning alluvial valley floors; finding no. 7, Chapter 2, Section 2(b)(xi)(D)(I)(2); finding no. 14, Chapter 2, Section 2(b)(xi)(D)(XII)(1 and 2); finding no. 16, Chapter 4, Section 2(i)(i), concerning the removal of redundant groundwater language; finding no. 8, Chapter 4, Section 2(w), concerning the prevention of material damage to hydrologic balance outside the permit area; finding no. 17, Appendix A, Appendix IV, concerning a change in the list of plant species of special concern; finding no. 18, 30 CFR 950.12(a)(4), concerning why the codified required amendment for elevations and locations of stations to monitor water quality * * * should be removed; finding no. 19, 30 CFR 950.16(ii)(2), concerning why the codified required amendment for fish and wildlife habitat and shrub density should be removed; and finding no. 20, 30 CFR 950.16(jj), concerning why the codified disapproval for the shrub standard for grazing land should be removed.

To implement this decision, we are amending the Federal regulations at 30 CFR part 950, which codify decisions concerning the Wyoming program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the Wyoming program demonstrates that Wyoming has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of Wyoming and Federal standards.

Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an approved State program be submitted to OSM for review as a program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any changes to approved State programs that are not approved by OSM. In the oversight of the Wyoming program, we will recognize only the statutes, regulations, and other materials we have approved, together with any consistent implementing policies, directives, and other materials. We will require Wyoming to enforce only approved provisions.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior 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. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

On October 26, 2001, the President signed into law the USA PATRIOT Act (Pub. L. 107-56) (the Act). Title III of the Act makes a number of amendments to the anti-money laundering provisions of the Bank Secrecy Act (BSA), which is codified in subchapter II of chapter 53 of title 31, United States Code. These amendments are intended to make it easier to prevent, detect, and prosecute international money laundering and the financing of terrorism. Section 352(a) of the Act, which became effective on April 24, 2002, amended section 5318(h) of the BSA. As amended, section 5318(h)(1) requires every financial institution to establish an anti-money laundering program that includes, at a minimum: (i) The development of internal policies, procedures, and controls; (ii) the designation of a compliance officer; (iii) an ongoing employee training program; and (iv) an independent audit function to test programs.

The definition of “financial institution” in sections 5312(a)(2) and (c)(1) is extremely broad. It includes institutions that are already subject to federal regulation such as banks, savings associations, credit unions, money services businesses (such as money transmitters and currency exchanges), and registered securities broker-dealers and futures commission merchants. The definition also includes dealers in precious metals, stones, or jewels; pawnbrokers; loan or finance companies; trust companies; private bankers; insurance companies; travel agencies; telegraph companies; sellers of vehicles, including automobiles, airplanes, and boats; persons engaged in real estate closings and settlements; investment bankers; investment companies; and commodity pool operators and commodity trading advisors that are registered or required to register under the Commodity Exchange Act (7 U.S.C. 1 et seq. ). Section 352 of the Act requires all of these businesses to establish anti-money laundering programs.

On April 29, 2002, FinCEN issued a series of interim final rules implementing section 352 of the Act. These rules prescribed requirements for anti-money laundering programs for banks, savings associations, credit unions, registered securities broker-dealers, futures commission merchants, and introducing brokers that are regulated by a federal functional regulator or a self-regulatory organization, and casinos  1 ; money services businesses  2 ; mutual funds  3 ; and operators of credit card systems. 4 FinCEN also temporarily deferred, until October 24, 2002, the application of section 352 to all other financial institutions. 5 The temporary deferral applied to dealers in precious metals, stones, or jewels; pawnbrokers; loan or finance companies; private bankers; insurance companies; travel agencies; telegraph companies; sellers of vehicles, including automobiles, airplanes, and boats; persons engaged in real estate closings and settlements; certain investment companies; commodity pool operators; and commodity trading advisors. 6

The purpose of the temporary deferral was to permit FinCEN and Treasury to continue studying the money laundering risks posed by these institutions in order to develop appropriate anti-money laundering program requirements. The extension of the anti-money laundering program requirement to these financial institutions, most of which have never been subject to federal financial regulation, raises many significant practical and policy issues. An inadequate understanding of the affected industries could result in poorly conceived regulations that impose unreasonable regulatory burdens with little or no corresponding anti-money laundering benefits. FinCEN and Treasury are also aware that many of these financial institutions are sole proprietors or small businesses, and that any regulations affecting them must recognize this fact. As a result of our review of these industries, FinCEN and Treasury have published proposed rules that would apply the anti-money laundering program requirements of section 352 to insurance companies  7 and certain investment companies. 8 FinCEN and Treasury are continuing to study the remainder of the deferred financial institutions and expect to issue proposed rules for all these financial institutions within the next six months. FinCEN and Treasury are today extending the temporary deferral concerning section 352 pending the issuance of final rules for these financial institutions.

As promulgated on April 29, 2002, 31 CFR 103.170 temporarily deferred, until October 24, 2002, the application of section 352 of the Act to dealers in precious metals, stones, or jewels; pawnbrokers; loan or finance companies; private bankers; insurance companies; travel agencies; telegraph companies; sellers of vehicles, including automobiles, airplanes, and boats; persons engaged in real estate closings and settlements; certain investment companies; commodity pool operators; and commodity trading advisors. This interim rule amends section 103.170 by removing the October 24, 2002, termination of the exemption for these financial institutions. As noted above, FinCEN and Treasury have issued proposed rules for some of these financial institutions, and expect to issue additional proposed rules in the coming months. FinCEN and Treasury believe it would be inappropriate to require these financial institutions to implement anti-money laundering programs during the pendency of the rulemaking process.

The temporary deferral in section 103.170 was intended to apply to all financial institutions other than those for which anti-money laundering program requirements were previously in effect or specifically prescribed pursuant to the April 29, 2002, interim final rules. Although the prior interim final rules did not prescribe anti-money laundering programs for certain financial institutions that are “banks” as defined in 31 CFR 103.11(c) but which lack a federal functional regulator, those financial institutions were not specifically included in the list of financial institutions subject to the temporary deferral. Section 103.170 is being amended to include these financial institutions (trust companies and certain state-chartered credit unions that are not federally insured, and private banks) within the temporary deferral. 9 For the same reason, section 103.170 is also being amended to include any person defined as a “financial institution” in 31 CFR 103.11(n)(7). 10

Treasury and FinCEN emphasize that the temporary deferrals do not in any way relieve any business from their obligations under law or regulation, including the requirements in 31 U.S.C. 5331 and 26 U.S.C. 6050I that they report transactions in cash or currency, or certain monetary instruments, that exceed $10,000. The regulations under these sections are codified at 31 CFR 103.30 and 26 CFR 1.6050I, respectively. Every business must ensure that it has appropriate procedures to report such transactions to FinCEN and the IRS using the single Form 8300 jointly prescribed by those agencies. All financial institutions are further reminded of the importance of reporting suspected terrorist activities or otherwise suspicious transactions to the appropriate law enforcement authorities. In addition, Form 8300 contains a box that may be checked to indicate that a particular transaction appears suspicious.

The provisions of section 352 of the Act, which requires all financial institutions to establish anti-money laundering programs, became effective April 24, 2002. This interim final rule imposes no requirements on any financial institution, and continues the exemption for certain financial institutions from these requirements. Accordingly, good cause is found to dispense with notice and public procedure as unnecessary pursuant to 5 U.S.C. 553(b)(B), and to make the provisions of the interim rule effective in less than 30 days pursuant to 5 U.S.C. 553(d)(1) and (3).

Because no notice of proposed rulemaking is required for this interim final rule, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply.

This interim final rule is not a “significant regulatory action” as defined in Executive Order 12866. Accordingly, a regulatory assessment is not required.

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 and 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 .

On July 12, 2001, the Coast Guard published an NPRM (66 FR 36527) [CGD01-01-095] entitled Drawbridge Operation Regulations Shrewsbury River, New Jersey. That NPRM requested public comment regarding the proposal to temporarily change the drawbridge operation regulations, from November 1, 2001 through February 28, 2002. Under that proposal the bridge would be required to open only four times each day provided a twelve-hour advance notice was given. No comments or objections were received in response to the NPRM published in 2001.

The repair project and temporary operating schedule for 2001 were cancelled for fiscal year 2001 due to contractual issues. As a result of the failure to resolve the contractual issues the project was rescheduled to start in November 2002, a year later than originally planned.

The bridge owner recently renewed its request to temporarily change the bridge operating regulations from November 8, 2002 through February 28, 2003. The temporary operating schedule in this rule is identical to the schedule previously published in the notice of proposed rulemaking last year, under which the bridge will be available to open for vessel traffic four times each day provided a twelve-hour notice is given.

Opening requests received at the Monmouth County highway bridge during the November to February time period each year have been relatively low. In addition, the Coast Guard coordinated the bridge repair project and related temporary bridge opening schedule with the mariners who operate on the Shrewsbury River. All those we contacted agreed that the proposed bridge opening schedule would meet the needs of waterway users. The effective period of this temporary rule is traditionally the most dormant season for vessel traffic on the Shrewsbury River and, accordingly, the best time to perform the necessary repairs at the bridge.

The Coast Guard believes that an NPRM is unnecessary because of the relatively low number of opening requests received at the bridge November through February and the advance coordination effort made by the Coast Guard to coordinate the temporary bridge opening schedule with the mariners.

Good cause exists for making this regulation effective in less than 30 days after publication in the Federal Register because any delay encountered in this regulation's effective date would be unnecessary and contrary to the public interest. Delaying the start of this project would also delay the completion date of this project, disrupting vehicular and marine traffic next spring when traffic is much heavier than during the winter months when this temporary operating schedule will be in effect.

The Monmouth County highway bridge, at mile 4.0, across the Shrewsbury River has a vertical clearance of 15 feet at mean high water and 17 feet at mean low water. The existing regulations are listed at 33 CFR 117.755.

The bridge owner, Monmouth County, asked the Coast Guard to temporarily change the drawbridge operation regulations to facilitate structural repairs at the bridge to be performed from November 2001 through February 2002.

The Coast Guard published a notice of proposed rulemaking in July 2001. That rule proposed that the bridge open only at 6 a.m., 10 a.m., 2 p.m., and 6 p.m., after a twelve-hour advance notice was given. It was scheduled to go into effect from November 1, 2001 through February 28, 2002, but the project was cancelled before the rulemaking resulted in a temporary final rule. It was subsequently postponed a year due to contractual problems.

The bridge owner has again asked the Coast Guard to temporarily change the regulations governing the Monmouth County highway bridge to allow the operating schedule proposed last year to go into effect this year from November 8, 2002 through February 28, 2003. The Coast Guard contacted the mariners who operate on the Shrewsbury River regarding this temporary operating schedule and no objections were received.

This temporary change to the drawbridge operation regulations will require the bridge to open only at 6 a.m., 10 a.m., 2 p.m., and 6 p.m. after a twelve-hour advance notice is given. The timed openings and the advance notice requirement are necessary to allow the contractor sufficient time to remove equipment and materials from the bridge in order to provide bridge openings.

The number of requests to open the bridge from November through February in past years have been relatively low.

The Coast Guard believes this temporary final rule is reasonable based upon the relatively low number of bridge opening requests during past years, November through February, and the fact that this work is necessary maintenance required to assure continued uninterrupted operation of the bridge.

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).

This conclusion is based on the fact that the bridge will continue to open for marine traffic on a set daily schedule.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 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 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 conclusion is based on the fact that the bridge will continue to open for marine traffic on a set schedule.

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 State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have 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 (32)(e), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the environment. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

The Elgin, Joliet & Eastern Railway Company requested a temporary deviation on September 23, 2002, for the operation of the drawbridge to allow the bridge owner time for preventative maintenance. The drawbridge operation regulations found at 33 CFR 117.393(d) require that the drawbridge be maintained in the open-to-navigation position and close only for the passage of rail traffic. This deviation allows the bridge to remain closed to navigation for four separate 28-hour intervals from 6 a.m., November 4, 2002, until 10 a.m., November 5, 2002, from 6 a.m., November 7, 2002, until 10 a.m., November 8, 2002, from 6 a.m., November 11, 2002, until 10 a.m., November 12, 2002 and from 6 a.m., November 14, 2002, until 10 a.m., November 15, 2002. Vessels not exceeding the vertical clearance of the drawbridge may pass under the drawbridge during repairs. There are no alternate routes for vessels transiting through mile 290.1 on the Illinois Waterway. The drawbridge will be incapable of opening for emergencies during the 28-hour repair periods.

The Elgin, Joliet & Eastern Railway drawbridge provides a vertical clearance of 24.6 feet above normal pool in the closed to navigation position. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. In order to repair and replace gear reducers, roller bearings, gears and shafts, the bridge must be kept inoperative and in the closed to navigation position. This deviation has been coordinated with waterway users. No objections were received.

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

Issuance of notice and order: October 21, 2003;

See 66 FR 33034, June 20, 2001 (request for comments and technical conference).

See 67 FR 35766, May 21,2002 (notice of proposed rulemaking).

The Commission has concluded that it is feasible and desirable to make electronic filing of documents over the Internet the standard procedure for filing official documents with the Commission.

The Commission began laying the groundwork for the conversion from hardcopy to online filing in its notice and order concerning electronic filing (order no. 1317), issued June 13, 2001. That notice established docket no. T2002-1 as a vehicle for conducting a live test of its proposed online filing procedures. Drawing on its experience with that live test, the Commission issued its notice of proposed rulemaking in this docket on May 8, 2002. See order no. 1341, issued May 8, 2002, (67 FR 35766, Tuesday, May 21, 2002). That notice proposed amending the Commission's rules of practice to require that documents submitted to the Commission in official dockets be submitted online, unless a waiver is obtained. The notice included a User Guide describing proposed Filing Online operating procedures. Following publication of its proposed rules and operating procedures, the Commission conducted a Filing Online workshop on June 12, 2002 to provide those intending to participate in future dockets with instruction and hands-on training in those procedures.

Several times over the next several months, the Commission asked those who had participated in recent Commission proceedings to join it in testing Filing Online functions and system capacity. These tests were generally successful. The success of these training and testing procedures has led the Commission to conclude that the Filing Online system is sufficiently developed to warrant its immediate implementation as the standard system for receiving and disseminating documents in formal dockets.

The Commission has concluded that one part of its proposed rules requires further examination before it is implemented. That is the proposal that material filed as library references or computer analyses be filed in a form that can be read and executed on PC hardware. This proposal will be severed from this docket so that it can undergo an additional round of comment before it is implemented.

The rules implementing the Filing Online system that are adopted in this order will apply to subpart H of the Commission's rules of practice, which govern small post office closings. The Commission, however, contemplates making some refinements to subpart H procedures in the near future in order to take better advantage of the Filing Online system.

The amended rules of practice set out in attachment 1 to this order are final rules implementing the Filing Online system. They generally require that documents in formal proceedings before the Commission be filed through the Filing Online system. These final rules will take effect on January 7, 2003. They differ from the rules described in the notice of proposed rulemaking issued earlier in this docket (order No. 1341, issued May 8, 2002) in several minor respects.

The proposed rules provided for only one kind of account holder. The final rules distinguish between two types of account holders. Primary Account Holders are those who represent themselves or clients before the Commission. They take responsibility for ensuring that filings submitted through their accounts are authentic, accurate, and authorized by the participant for whom they have been filed. Agent Account Holders are those to whom Primary Account Holders have delegated their authority to file documents with the Commission.

Current account holders who meet the definition of Primary Account Holders will automatically be designated Primary Account Holders by the Secretary. Current account holders who do not meet the definition of Primary Account Holders must reapply to become Agent Account Holders. Primary Account Holders may delegate their authority to file documents with the Commission to other Primary or Agent Account Holders by designating them on their Filing Online Profile Page.

The proposed rules required that certain kinds of lengthy documents be filed both online and in hardcopy form. Under the final rules, the only documents that will be accepted in hardcopy form are those for which a waiver of the online filing requirement has been obtained, designations of written-cross examination, and formal Postal Service requests to change rates or classifications.

The proposed rules required that word processing files be submitted in text-based portable document format (pdf) format, and that all other files that could be converted to text-based pdf files also be submitted in that form. Non-word-processing files could be submitted in their native format, but this was not required.

The final rules require that word processing files be submitted in text-based pdf format, but do not require other files to be submitted in that format. They strongly encourage, but do not require, that word-processing files be submitted in their native format as well. The final rules require that non-word-processing files that are submitted as attachments to host documents be submitted in their native format. Such files may be submitted in text-based pdf on a voluntary basis.

The final rules require that notice be given to the Secretary if a scanned pdf file is being submitted.

The Secretary has expanded the capability of the Filing Online system. As before, a file can be converted to text-based pdf format on line. Now it is also possible to integrate multiple text-based pdf files into a single text-based pdf file on line. This should make it easier for account holders to produce a host document entirely in text-based pdf format.

The proposed rules required that participants serve documents in hardcopy form on other participants who had obtained a waiver of the online filing requirement. Under the final rules, the Commission has assumed the duty of serving hardcopy documents on participants who cannot receive service on line.

The proposed rules required that participants who had obtained a waiver of the online filing requirements serve their documents on others in hardcopy form. Under the final rules, those participants may submit hardcopy documents to the Secretary. The Secretary will serve them by posting them on the Commission's Web site or, if necessary, mailing them in hardcopy form.

The final rules allow complex cross-examination exhibits to be served two calendar days before the appearance of the witness by filing them on line, or by providing them in hardcopy form to the witness's counsel, at the option of the cross examiner.

Five sets of written comments were received in response to the notice of proposed rulemaking in this docket. 1 Of the five commenters, four supported the proposal to require documents in formal dockets to be filed online, essentially as proposed. Based on their experience with the test phase, they regarded the Filing Online system as technically well designed, reliable, and user friendly. They praised its potential to speed the availability of needed documents, to simplify the management of their documents, and to reduce costs. They noted that to realize this potential, online filing must become the standard procedure for filing documents. Carlson Comments at 1, Major Mailer Association (MMA) Comments at 1-2, Office of the Consumer Advocate (OCA) Comments at 1-2, Postal Service Comments at 1, 3.

Val-Pak Direct Marketing Systems, Inc. (Val-Pak). Val-Pak suggests that the Commission's proposal to convert to an online filing system is premature. It proposes that the Commission expand the categories of documents that would have to be dual filed (filed in hard copy as well as electronic form) to include all interrogatory responses, written testimony, briefs, and “anything that potentially can be included in the formal record.” It argues that these documents need to be filed in hard copy form to ensure that the docket record is reliably preserved. It asserts that there are other benefits of requiring material to be filed in hard copy form. It contends that hard copy is easier to read, annotate, organize, and recall. It argues that it is more efficient for the originator of a document to produce a batch of hard copies on a high-speed copy machine than for each recipient of that document to produce its own hard copy. Val-Pak Comments at 2.

Val-Pak also criticizes the Commission's proposal not to require testimony and briefs to be filed in hard copy if they are 20 pages or less in length. It argues that it would be cumbersome for participants to ascertain which briefs fall under this threshold, and therefore should be printed out by the participant. Id. at 3.

There is little reason for Val-Pak to fear that the record will not be reliably preserved unless the documents that comprise it are filed with the Commission in hardcopy form. The Commission will print a hard copy of every document filed on line in a formal docket and archive it, at least for the duration of that docket. Val-Pak's concern that hardcopy documents are easier to work with should not interfere with the transition to the filing online. While hardcopy documents might be easier to work with, this is not a reason to require documents to be in hardcopy form when they are initially filed with the Commission. Participants who prefer to work with hardcopy documents may print them at any time after the Commission has posted them on its Web site.

A more legitimate concern is Val-Pak's argument that having different filing requirements for testimony and briefs depending on their length will make it difficult for participants to determine whether they have assembled a complete set of such documents. Val-Pak Comments at 3. The Commission agrees that this is likely to complicate the tracking and archiving of such documents. This is one reason that the Commission has decided to drop this proposal, and to apply the same filing requirements to all testimony and briefs, regardless of length.

Major Mailers Association (MMA). MMA generally supports the Commission's proposed Filing Online rules. It joins Val-Pak in criticizing the Commission's proposal to apply different filing requirements to testimony and briefs according to their length. It explains that in a typical rate proceeding it focuses on a few important issues, and regards remaining issues as “second tier” issues. It is only interested in receiving testimony and briefs in hardcopy form if they address issues it considers important. It believes that it is faster and more efficient to review testimony and briefs that address “second tier” issues if they are received only in electronic form. It argues that this belief is shared by most participants. Rather than requiring testimony and briefs over 20 pages to be filed in hardcopy form, it urges the Commission to adopt a “rule of reason” that would permit a participant to designate which testimony and briefs it would prefer to receive in hardcopy form. MMA Comments at 3-4. MMA's concern that it not be burdened with hard copies of testimony and briefs that it is unlikely to read in that form is resolved by the Commission's decision to drop its proposal to require that lengthy testimony and briefs must be filed in hardcopy form. Under the final rules adopted in this order, lengthy briefs and testimony will not be treated differently than other documents. Participants will be able to print lengthy testimony and briefs if they prefer to read them in hardcopy form.

MMA seeks clarification of one aspect of the Commission's proposed Filing Online procedures. It assumes that when an account holder uploads a file to the Commission's Web site in its native format, such as Microsoft Word, converts it to the required pdf format on the Commission's Web site, and submits it for filing, that the Commission posts both the native format file and the pdf file so that others can download them. When an account holder uses Adobe software to convert a file from native format to pdf on his own computer before submitting the document for filing, MMA asks whether the account holder is obligated to submit the file in native format as well. MMA argues that there should be such an obligation, since the native format file is likely to be more amenable to cutting, pasting, and searching than the pdf file. MMA also asks whether computer analyses, such as spreadsheets created in Microsoft Excel, are required to be filed and posted in their native format, and not just posted as a scanned pdf file. MMA Comments at 4-5. The Postal Service also emphasizes the benefits of filing text documents in their native format. Rather than asking that filing in both pdf and native formats be required, however, it asks that it be encouraged as a courtesy to other participants. Postal Service Comments at 7.

It is advantageous for participants to file word processing files in both pdf and native formats for all of the reasons that MMA and the Postal Service cite. The Commission, however, believes that it is premature to make it mandatory to file word processing files in native format. Filing such files in native format raises minor security concerns. For example, account holders could occasionally have hidden annotations or legislative formatting in their native-format text documents which others could retrieve. If the account holder is not aware that these annotations are present, and regards them as confidential, the account holder might regret having submitted the document in native format. One solution, of course, is to check the document for hidden annotations before submitting it for filing. The Commission is searching for technical tools that might facilitate this process. For now, however, the Commission strongly encourages account holders to submit word processing files in native format, but it will not make it mandatory. If the account holder converts a native format file to a pdf file on the Commissions Web site, the option of deleting the native file before submitting the filing record to the Commission is still available. If a filing record submitted to the Commission contains both the native file and the pdf file, the Commission will post both files on its Web site.

MMA also observes that filing computer analyses in native format should be considered mandatory under rule 31(k)(3)(i). It notes that common spreadsheet software allows the analyst to embed formulae and assumptions in spreadsheets that are lost if they are converted to pdf. It further notes that spreadsheets in pdf format must be converted back to their native format before they can be modified or manipulated. For these reasons, MMA urges the Commission to make it clear that account holders must file a native-format version of their computer analyses. MMA Comments at 5. The Postal Service expresses related concerns. It questions whether the Commission's admonition in its notice of proposed rulemaking that “[a]ny collateral files that can be produced in text-based pdf must also be submitted in that form” is well considered. It argues that some Excel files can be converted to a text-based pdf format, but that doing so eliminates most of their embedded utility.

In its notice of proposed rulemaking, the Commission proposed filing rules that did not make filing computer analyses or spreadsheet analyses in their native formats mandatory. The rules as proposed required computer analyses to be filed in text-based pdf form if they were part of a host document. If they were filed as attachments to a host document, the proposal required that they be filed in text-based pdf form where possible. Otherwise they allowed them to be filed in their native format. See order no. 1341, issued May 8, 2002, at 4.

The parties' comments have persuaded the Commission to reconsider how its format requirements should apply to computer and spreadsheet analyses. The Commission agrees that it is highly desirable to have computer and spreadsheet analyses filed in their native format for the reasons that MMA and the Postal Service cite. Filing such analyses in native format is already required in most circumstances to satisfy the Commission's documentation rules [such as rules 31(k)(2) and (3) and rule 54(o)]. This is because in most circumstances detailed assumptions, formulae, and sources for numbers are not fully disclosed in testimony or other text documents.

Computer and spreadsheet analyses are typically filed as attachments to host documents. The Filing Online rules authorized by this order require that computer and spreadsheet analyses filed as attachments to a host document be filed in their native format. Filing them in native format, such as Excel, Lotus, or Quattropro, will preserve the ability to read embedded formulae and the ability to manipulate the files. As the Postal Service points out, Excel and similar files are not very useful in pdf format because their embedded formulae cannot be read, and the numbers cannot be manipulated. Accordingly, the Filing Online rules authorized by this order do not require that computer and spreadsheet analyses filed as attachments to host documents be provided in pdf format. Text-based documents filed as attachments to host documents, however, are required to be submitted in text-based pdf format, whenever possible. This will maximize the amount of filed material that can be included in Filing Online's searchable database.

Another way to maximize the amount of material that will be included in Filing Online's searchable database is for the Commission to be notified if an account holder has submitted a scanned pdf as an attachment to a host document. If the Commission is notified that an attached pdf was scanned, it can OCR it in an attempt to convert it to a searchable text-based pdf format. The Commission, however, cannot tell whether an attachment with a “.pdf” extension is text-based or scanned at the time that it is submitted without opening and testing it. To make sure that scanned pdfs are flagged and OCRed, the Filing Online User Guide will instruct the account holder to note in the “Comment” box provided on the “Create Filing Record” or the “Edit Filing Record” page if the pdf attached to a host document is a scanned pdf.

Rather than provide tables or graphs generated in Excel or similar formats in a separate file attached to a host document, an account holder may choose to integrate them into a host document and to explain and annotate them in the host document thoroughly enough to satisfy the Commission's documentation rules. The filing rules authorized by this order require that host documents and all their components be submitted in text-based pdf format. If such material is thoroughly documented in the host document, account holders will not be required to provide it as native format attachments as well. Supplemental files containing such material in native format are useful, however, for reasons already described, and account holders are encouraged to provide them.

Participants should be aware that the host document in text-based pdf format that they are required to provide under Filing Online must be a single file that reads continuously from beginning to end. If Excel-based tables or figures are inserted into the host document, or intended to be a part of the host document as appendices, they should not be submitted as separate files that other participants would have to download separately and reassemble in order to obtain a coherent host document. In order to make it easier for account holders to include material generated in Excel or similar formats in a host document that is a single text-based pdf file, an “Assemble PDF” function has been added to the Filing Online system.

The “Assemble PDF” function will allow an Account Holder to upload an Excel, Lotus, or Quattropro file, convert it to pdf format, print it, and then decide if it needs to be manipulated in one of several ways. One way would be to simply add it to the end of an existing text-based pdf file. The “Assemble PDF” function, however, also provides an account holder with a way to excerpt designated pages from one or more Excel files, reorder them, and append them to an existing pdf file. If an account holder wants to insert Excel-based material at various points in an existing pdf file, this is most easily done by “embedding” the material at the desired points, but it could also be done in a multi-step process using the “Assemble PDF” function that the Commission has provided.

Embedding, or the various features of the “Assemble PDF” function, will help the account holder produce a host document that consists of a single text-based pdf file in order to satisfy the requirements of the Filing Online system. These techniques will be effective if the analyst who has generated the Excel or similar material has set print areas appropriately, and provided any needed headers and footers, prior to converting the Excel material to pdf format.

Revised format requirements. Because the file format requirements for the Filing Online system that appear in the current User Guide differ in minor ways from those described in the notice of proposed Rulemaking, it will be helpful to summarize them.

• Host Documents and other word processing-based files must be submitted as text-based pdf files. The Commission urges that they be submitted as native files as well, but does not require it.

• Files that are not word-processing based (spreadsheet, computer language, scanned files, etc.) must be submitted as native files if they are attached to a host document. They may be submitted as text-based pdf files as well.

• Scanned pdf files must be designated as such at the time they are submitted.

Douglas F. Carlson. Douglas Carlson joins Val-Pak and MMA in criticizing the Commission's proposal to apply different filing requirements to testimony and briefs according to their length. He argues that few briefs or testimonies would avoid the hardcopy filing requirement since few would be less than the 20-page threshold. He complains that the expense of filing and serving such documents in hardcopy form discourages participation in Commission proceedings. He argues that raising the threshold to 30 pages would mitigate this burden, as well as the burden of downloading and printing large numbers of such documents filed by others on deadline days. The OCA supports this proposal. OCA Comments at 3.

Mr. Carlson assumes that the rationale for the Commission's proposed rule that lengthy briefs and testimonies be filed and served in hardcopy form as well as on line is a need to avoid the crush of downloading and printing numerous large documents on the same day and the need to avoid congestion in the Commission's docket section. As an alternative to raising the 20-page threshold, he proposes that briefs and testimonies filed in advance of the filing deadline be excused from the hardcopy requirement. Carlson Comments at 2. The OCA opposes this alternative. It argues that it would give opponents a procedural advantage if they were to receive advance notice of arguments in testimony or briefs, particularly for reply briefs. OCA Comments at 3.

The Commission has decided to drop its proposed rule that would have required lengthy testimony and briefs to be filed and served in hardcopy form. This will eliminate the source of the objections voiced by Mr. Carlson. The recent expansion of capacity of the Commission's Filing Online system, and the tests of that capacity, indicate that congestion of that system is unlikely, even on days of anticipated peak demand. Accordingly, account holders should be able both to upload documents, and to download and print documents on peak filing days, without unreasonable delay. Account holders will be able to print any briefs or testimony that they prefer to review in hardcopy form without having to first determine whether the documents fall on one side or the other of a page-based threshold.

Postal Service. The Postal Service generally supports the proposal to make online filing the standard filing procedure in formal dockets, although it cautions that some additional testing of the Postal Service's ability to download filed documents in live dockets would be desirable before a major case is filed. It suggests that further refining of the proposed Filing Online rules is needed in the following respects.

The Postal Service assumes that the portions of proposed rules 9, 10, and 11 that allow a waiver of the requirement that documents be filed online apply “only to a participant who is wholly excluded from Filing Online.” Postal Service Comments at 4. It says that responses to discovery sometimes require that material other than electronic documents be provided, such as videotapes or Priority Mail envelopes, or documents that were generated by non-standard software. It reasons that paragraph (b)(2)(vii) of the current library reference rule (39 CFR 31(b)(2)(vii)) could still accommodate such material if it were made a library reference and an appropriate notice of filing the library reference were submitted online. It observes that this would increase the number of library references, but would avoid the need to process motions for waivers of the online-filing requirement. Id.

The Postal Service wrongly assumes that proposed rules 9 through 11 would not authorize waivers for individual filings. The language of those rules is explicit that both the online-filing requirement and waivers of that requirement apply on a document-by-document basis. Proposed rule 9(a) provides that “ [t]he filing of each written document * * * shall be made using the Internet (Filing Online) * * * unless a waiver is obtained.” Proposed rule 10(a) states that the online-filing requirement (as well as the account holder requirement) applies on a document-by-document basis. It provides that “ (e)ach document filed with the Commission must be submitted through Filing Online by an account holder unless a waiver is obtained.” Proposed rule 12(a)(2) states that the online service requirement and the exceptions to that requirement apply on a document-by-document basis. Proposed rule 12(a) provides that “ [e]ach document filed in a proceeding via the Internet by an account holder shall be deemed served * * *. Proposed rule 12(a)(2) states that there is an exception to the online service requirement for “ [a] document that must be served on a participant that the Commission or presiding officer has determined is unable to receive service through the Commission's Web site.” (Emphasis in the above quotations has been supplied.) In contrast to the above quoted provisions, proposed rule 12(b) makes an exception to the online service requirement available to participants who are unable to file documents online.

Close reading of proposed rules 9 through 12 (which are made final rules by this order) makes it clear that waivers of the online filing requirement are available on both a document-by-document basis, and on a participant basis. If it is feasible to provide material to be filed in electronic form, participants are obligated under these rules to do so, and to file them online. Even if a participant did not originally obtain a document in electronic form, such as a newspaper clipping, but he can readily scan it to produce a legible pdf, he is obligated to do so, and to attach it to a host document, such as an interrogatory answer. A document is eligible to be treated as a library reference only if it is not feasible to generate a legible document in electronic form that can be attached to a host document and filed online. This is consistent with the Commission's policy to minimize the number of library references.

The Postal Service believes that a problem may be created by the gap that would occur between the time that the Filing Online system generates a receipt for a document that has been submitted for filing, and the time that it is accepted and posted on the Commission's Web site.

In its notice of proposed rulemaking, the Commission indicates that when the Filing Online system receives an electronic document that an account holder has submitted for filing, it will issue an electronic receipt to the account holder indicating the time that is was received. It explains that the Commission's docket section would then review the document for compliance with its rules before accepting it as filed. Acceptance would be indicated by posting the document on the Daily Listing page of the Commission's Web site. See order no. 1341, issued May 8, 2002, at 6-7.

The Postal Service speculates that under the current hardcopy system, when a document is submitted at the docket window the docket staff reviews it for compliance with the Commission's filing rules, and then applies a date stamp indicating that it has been accepted for filing. It contrasts this with the Commission's proposed Filing Online procedures, where the docket section would first issue an electronic receipt for a document, then review it for compliance with filing rules. The Postal Service suggests that the scope of the review that the docket section would perform prior to acceptance of a document submitted online would be broader than under the current hardcopy system (for example, determining whether a document is a single-or a multiple-purpose document) and that the authority for such review needs to be clarified. Postal Service Comments at 4-5.

Contrary to the Postal Service's assumption, under the current hardcopy filing system, the docket section date stamps a document when it is received. It then reviews it for compliance with the Commission's filing rules. The date stamp indicates only the time that the document was received. It does not indicate that the document was accepted for filing.

Proposed Filing Online procedures would parallel the current hardcopy procedure. The Commission would issue an electronic receipt to indicate the time that the document was received, and then review it for compliance with filing rules. The difference would be that under Filing Online, the Commission would affirmatively indicate that a document had been accepted for filing by posting it on its Web site. Under current hardcopy filing procedures, if a date-stamped document is determined to be in compliance with the Commission's filing rules, the Commission takes no further action.

The Postal Service is correct, however, that Filing Online would impose filing requirements beyond those that currently apply to hardcopy documents. While the general filing requirements will continue to be set forth in the Commission's rules of practice, some of the more detailed requirements, such as the role of the host document, and the formats that are acceptable, will be published only on the Commission's Web site in the Filing Online User Guide. Reserving such detailed filing requirements for the Filing Online User Guide is necessary because the technical features of the Filing Online system can be expected to continually evolve, and Filing Online procedures will need to evolve with them. It would not be practical to have to continually amend the Commission's rules of practice through notice and comment rulemaking procedures as the Filing Online system evolves.

The Postal Service points out that under rule 9 as it was proposed in the notice of proposed rulemaking, the Secretary is authorized to reject filings if they do not comply with an applicable “statute, rule, regulation, or order.” It suggests that if Filing Online requirements do not take the form of a “statute, rule, regulation, or order” the Secretary may not use them as grounds for rejection. Postal Service Comments at 4-5.

To clarify the Secretary's rejection authority, final rule 9(d) includes non-compliance with “filing instructions published by the Secretary” among the grounds for which the Secretary may reject a filing. For purposes of rule 9(d), it will be sufficient if the Secretary's filing instructions have been published on the Commission's Web site.

The Postal Service was prompted to raise the issue of the Secretary's rejection authority by a comment made by the Secretary's staff during the Filing Online workshop held on June 12, 2002. The Postal Service understood the staff to have asserted that a pleading that serves two separate purposes would be rejected. Postal Service Comments at 5.

The Secretary's staff meant to articulate a more limited requirement. The staff meant to assert that pleadings that would normally be submitted as separate documents if they were filed in hardcopy form should be submitted in separate Filing Records if they are submitted online. As an example of documents that would be filed separately if they were in hardcopy form, the staff mentioned a motion to accept interrogatory answers as late filed, and the interrogatory answers themselves. The staff was emphasizing the importance of submitting only one host document per Filing Record. Associating each host document with a unique Filing Record makes it easier to identify and archive documents. The staff did not mean to assert that a host document could serve only one purpose.

The Postal Service's comments, however, have drawn the Commission's attention to the desirability of requiring that each host document have a separate procedural purpose. Compound pleadings and composite motions are difficult to track and archive. If each pleading has a distinct procedural purpose it will be easier to associate it with a unique Filing Record and unique set of record identifiers. This should make it easier to track and archive pleadings. In particular, it should make it easier to track motions. Because each motion will be submitted with its own Filing Record, and would have a unique file identifier, it will make it less likely that a motion would “fall through the cracks” and fail to be addressed. Accordingly, the requirement that each host document serve a separate procedural purpose will be included in the Filing Online User Guide.

Under this requirement, as noted, a motion for acceptance of late-filed interrogatory answers and the interrogatory answers themselves would be filed as separate host documents in separate Filing Records. Of course, a motion that is conditioned on the disposition of another motion should prominently refer to the motion upon which it is conditioned, even though it is filed separately.

Requiring participants to plead for distinct kinds of relief and file separate host documents submitted in separate Filing Records should not add significantly to the time or expense of filing those documents if they are filed electronically. It should, however, make tracking and archiving more efficient for both the Commission and the participants.

The Postal Service observes that under the proposed rules, a participant may obtain a blanket waiver of the requirement that documents be filed online. It notes that it will be difficult to reap the benefits that an online filing system can provide if blanket waivers are commonly granted. It argues that almost all participants in past Commission proceedings have demonstrated their ability to participate electronically. It observes that even if there are future participants who do not have their own Internet connections, they should be able to access the Commission's Web site from a public library. Under these circumstances, it argues, the bar should be set quite high for anyone desiring to be excused from participating online. Postal Service Comments at 5-6.

The Postal Service discusses the burden of serving hardcopy documents on a participant who has obtained a waiver, and the burden that such a participant has of serving hardcopy documents on others. It argues that the Commission should assume responsibility for serving documents on such participants. It asserts that the Commission could consolidate all documents that need to be served on such a participant each day, and send them in a single package. This, it contends, would avoid much duplication of effort by other participants. It argues that service of hardcopy documents by a participant with a waiver also should be facilitated by the Commission. It argues that such a participant could mail or fax documents to the Commission, which could then digitize them and post them on its Web site, again avoiding duplication of effort. It argues that to be consistent with the expedited service that would characterize the Filing Online system, a participant with a waiver should be required to mail its documents to the Commission by Express Mail or facsimile transmission. It goes on to argue that service of a hardcopy document by the Commission on behalf of a participant with a waiver should be considered to be effective on the date that it is received by the Commission, presumably because the Commission will have posted the document on the day that it was received. The Postal Service suggests that this would make service computation dates consistent for all participants, whether or not they were required to file online. Postal Service Comments at 5-6.

The Commission agrees with the Postal Service that almost all participants in recent Commission proceedings have shown that they can interact with the Commission's Web site and are likely to be able to participate in the Filing Online system. The Commission expects to be able to provide participants with sufficient technical assistance to ensure that they can effectively use the Filing Online system. Under these circumstances, a participant will have a heavy burden of persuasion to overcome if it wishes to obtain a blanket waiver of the online filing requirements adopted in this order.

If a participant were to obtain a blanket waiver, the Commission will assume responsibility for serving that participant with the documents filed by other participants. As the Postal Service validly observes, the Commission could avoid duplication of effort on the part of other participants by consolidating into a single mailing each day the documents that must be served on a participant with a blanket waiver. The assumption of this responsibility by the Commission is reflected in revised rule 12(a)(2). Similarly, if a participant were to obtain a blanket waiver, the Commission would facilitate service of documents by that participant on others. Under rule 12(b), a participant with a blanket waiver would deliver hardcopy documents that it wished to serve on others to the Secretary by hand or First-Class Mail. Such documents would be deemed served when they are posted on the Commission's Web site. If for some reason such documents cannot be converted to electronic form by the Commission and posted on its Web site, they will be deemed served when the Secretary posts them as First-Class Mail.

Under a system where filing documents online is the norm, the need for filing hard copies of documents with the Commission will remain, although these instances are expected to be rare. In the notice of proposed rulemaking, proposed rule 10(b) specified that when participants are required to file documents with the Commission in hardcopy form, that they must provide the Commission with an original and 24 conforming copies. Proposed rule 10(c) specified that when participants who have obtained a waiver of the online filing requirements choose to file documents on computer media, that they must provide the Commission with an original and three conforming copies. Upon further reflection, the Commission has determined that the number of conforming copies that must be provided to the Commission under either rule 10(b) or rule 10(c) should be reduced to two.

In the rare instance when a participant has a document that it cannot digitize and file online, yet it still can feasibly serve on participants in hardcopy form (perhaps a newspaper article that it is unable to scan), the Commission is likely to be able to digitize it and to distribute it internally by posting it on its Web site. Accordingly, the Commission generally will not need to be provided with enough hard copies of such documents to circulate them internally. Exceptions may be formal rate or classification requests. The Postal Service has been cooperative in providing as many copies of formal requests as the Commission needs.

Among the Filing Online rules contained in the notice of proposed rulemaking was rule 10(a)(2), which stated that “[d]ocuments filed online must satisfy computer system compatibility requirements specified by the Secretary.” The notice indicated that the Secretary would publish these requirements on the Commission's Web site in the form of instructions in the Filing Online User Guide. See order no. 1341 at 11-12. To date, the Secretary has identified and published only a few technical requirements for interfacing with the Filing Online system.

For the basic document filing function, the only technical restrictions are the formats in which documents must be submitted. Enhanced functions, such as batch downloading and batch printing, require that specified utilities be downloaded from the Commission's server.

The Commission's Web site contains a list of word processing, browser, and PC/MAC combinations that have been tested and found to be compatible with the Filing Online system. In its comments, the Postal Service infers that this (rather than the Filing Online User Guide) is the list of system compatibility requirements that the Secretary is authorized to prescribe under proposed rule 10(a)(2). It observes that there are some word processing applications that are absent from that list even though they can produce rich text format (RTF) files. It argues that it would not be prudent to bar participants from using various applications or platforms simply because they have not yet been tested. Because this list of tested platforms does not actually prescribe software or hardware that must be used in order to participate in Filing Online, the Postal Service asks what effect proposed rule 10(a)(2) is intended to have. Postal Service Comments at 7.

In arriving at its conclusion that the list of tested platforms published on the Commission's Web site was meant to implement proposed rule 10(a)(2), the Postal Service apparently overlooked the portion of the discussion of rule 10(a)(2) in the notice of proposed rulemaking that explains that the Secretary will prescribe system compatibility requirements in the Filing Online User Guide. See order no. 1341 at 11-12. The Secretary has not attempted to restrict the applications, browsers, or hardware that an account holder may use to access the Filing Online system. The Commission agrees with the Postal Service that it would not be prudent to limit the software or hardware that account holders may use simply because they have yet not been tested by the Commission. The Secretary will continue to post on the Commission's Web site, separate from the list of technical requirements, a list of software/hardware combinations that have been tested and found to be compatible with the system. It should prove useful to participants that might be deciding how to configure systems that they expect to use to access Filing Online.

Proposed rule 10 has been revised to reflect the refinements described above to Filing Online's format requirements. As a result of these revisions, proposed rule 10(a)(2) now appears as final rule 10(a)(5).

Password security is the final issue that the Postal Service's comments address. The Postal Service notes the Commission's admonition that regular password changes augment security. It asks the Commission to consider adding software that would force account holders to make regular password changes. Postal Service Comments at 8. In the Commission's view, the benefits of this change could be outweighed by the inconvenience it would cause to account holders who properly manage their passwords.

Change in the definition of account holders. Additional experience with the Filing Online system since the notice of proposed rulemaking was issued has prompted the Commission to refine the definition and role of account holders. Currently, some account holders represent themselves in proceedings before the Commission, some are attorneys who represent clients in proceedings before the Commission, and some are paralegals or secretaries who file documents on behalf of attorney representatives.

Currently, account holders must undertake the duties and obligations associated with the subscription requirement that is found in rule 11(e). These include warranting that the material submitted for filing is authorized by the participant that the account holder represents, and is authentic and accurate. Authority to provide these assurances resides with the person appearing in a proceeding on his or her own behalf or on behalf of a participant, rather than with a secretary or paralegal. Accordingly, the Commission has decided that there is a need to distinguish between types of account holders to better reflect the duties that they assume. Principal account holders are those that are able to undertake the obligations of rule 11(e) because they are appearing on their own behalf or that of a client. An agent account holder is one to whom a principal account holder has delegated authority to submit material for filing on the principal's or a client's behalf. When an agent account holder files material, the subscription obligations of rule 11(e) remain with the principal account holder who authorized the filing.

The Commission's decision to distinguish between types of account holders will not require most current account holders to take further steps to retain their Filing Online account. If a current account holder represents himself, herself, or a client, before the Commission, the Filing Online system will automatically treat such an account holder as a principal account holder.

A current account holder who does not qualify as a principal account holder, however, will have to reapply for a Filing Online account to be recognized as an agent account holder. A revised account holder application that distinguishes between principal account holders and agent account holders is provided with this order as attachment 2. After receiving a new user name and password, the agent account holder's ability to file through Filing Online will depend on the delegations of authority that appear on the Profile Pages of principal account holders. Principals will have to update their Profile Pages by furnishing, in the space provided, the user name of each agent account holder to whom they wish to delegate authority to file documents online. Agent account holders may have multiple principals. Similarly, principals may delegate their authority to file documents to other principals, as well as to agents, by furnishing the appropriate user Names on their Profile Pages. Principals who delegate their authority to file to others must take responsibility for updating their Profile Pages to reflect any changes in the identity of their delegates or agents.

User Activity Pages will be modified to reflect the distinction between principal account holders and agent account holders. An agent account holder's User Activity Page will show each document that the agent is working on, or has submitted for filing in the previous two days, and which principal has authorized it. A principal account holder's User Activity Page will show each document that the principal is working on, or has submitted for filing in the previous two days, and any agent that is assisting with the document.

Designations. Under current rule 30(e)(2), designations of written cross- examination must be served in hardcopy form at least three working days before the witness is scheduled to appear for oral cross-examination. Under Filing Online, notice of these designations must be served by filing them online with the Commission. To make this clear, final rule 30(e)(2) will add the phrase “in accordance with rules 9 through 12” to the language imposing the requirement that designations be served. Current rule 30(e)(2), however, also requires that two hard copies of the designations served shall simultaneously be submitted to the Secretary of the Commission. The Commission then incorporates these hard copies in the set of designations for that witness that is received into the record during oral cross-examination. This Commission function will be performed more efficiently if the designations furnished to the Commission remain in hardcopy form. To clarify that designations of written cross-examination that are furnished to the Commission are to remain in hardcopy form, final rule 30(e)(2) will employ the phrase “two hard copies of the documents” to the language imposing this requirement.

Cross-examination exhibits. As initially proposed, rule 30(e)(3) would have required a participant who wished to employ complex exhibits in oral cross-examination of an opposing witness to file those exhibits online two calendar days before the scheduled appearance of the witness. As adopted in this order, rule 30(e)(3) gives the participant the option of filing such cross-examination exhibits online or providing them to counsel for the witness in hardcopy form. This flexibility will accommodate exhibits that cannot be digitized and submitted online.

The specific procedures that are proposed for filing documents online with the Secretary of the Commission are set forth in the Filing Online User Guide, which may be accessed from the Filing Online Login Page on the Commission's Web site (URL: http://www.prc.gov ). A hardcopy of the Filing Online User Guide that has been revised to reflect the final Filing Online rules adopted in this order will also be mailed to each person who was on a service list of any Commission docket that was active within the past two years. It will also be mailed to anyone else that requests it.

Under the Filing Online procedures adopted in this order, each individual who wishes to represent a participant in a Commission proceeding must be a principal account holder. If a principal account holder wishes to delegate his authority to file documents in a proceeding, the individual to whom this authority is delegated must first become an agent account holder. An individual may become a principal account holder or an agent account holder by filling out the account holder application available by contacting the Secretary (See ADDRESSES ) and mailing it to the Secretary. Order no. 1341, issued May 8, 2002, describes the contractual duties that an account holder undertakes, and the procedures to be followed in obtaining a permanent password.

For the reasons discussed above, the Commission hereby amends subpart A of its rules of practice and procedure as set forth below to this order.

It is ordered:

1. The Commission adopts the provisions below as the final rules amending 39 CFR 3001.6, 9-13, 20, 20a, 26-28, 30, 31 and 42.

2. These rules will take effect on January 7, 2003.

3. Changes to 39 CFR 3001.31(b)(2)(vii) and 3001.31(k)(3) that were proposed in the notice of proposed rulemaking (order no. 1341, issued May 8, 2002), will be addressed in a subsequent docket.

4. The Secretary shall cause this notice and order adopting final rule to be published in the Federal Register .

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:

Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards (NAAQS) established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.

Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

Enforcement of the state regulation (this can also include state orders and permits) before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

From 1993 to 1996, there were numerous exceedances of the 24-hour PM 10 NAAQS at the ambient air monitor located in Mason City, Iowa. The measured exceedances ranged from 172 to 286 μg/m 3 . The 24-hour standard is 150 μg/m 3 . Additional exceedances were recorded during 1999 and 2000.

The two major stationary facilities identified as contributors to the monitored exceedances were Lehigh Portland Cement Company and Holnam, Inc. These companies operate Portland cement production facilities in the vicinity of the PM 10 ambient air monitor which recorded the exceedances of the NAAQS.

The Iowa Department of Natural Resources (IDNR), Air Quality Bureau, over the course of several years, developed a control strategy for each company which requires emission controls on numerous point, area, and fugitive emission sources. These requirements were incorporated into Administrative Consent Orders (A.C.O.) for each company. Additionally, permit conditions were developed or revised to reflect the A.C.O. control requirements.

The orders and permits establish enforceable (1) emission rates, (2) limitations on hours of operations, (3) limitations on daily and annual process rates (throughput), and (4) limitations on size and location of storage piles for raw material, fuels, and clinker. Fugitive emissions are to be controlled by the application of dust suppressants, sweeping, adherence to established speed limits, and limiting the number of daily and annual truck trips. Both facilities must be fenced to preclude public access. In addition, at Lehigh the coal crusher (source ID 40) is to be operated only in an enclosed structure.

Specifically, we are approving Administrative Consent Order No. 1999-AQ-31 between the IDNR and Holnam, Inc., signed by the state on September 2, 1999, and the Consent Amendment to the same order signed by the state on May 16, 2001. We are also approving the construction permits related to the A.C.O.

We are approving Administrative Consent Order No. 1999-AQ-32 between the IDNR and Lehigh Portland Cement Company signed by the state on September 2, 1999. We are also approving the construction permits related to the A.C.O.

Air quality modeling results demonstrate that the control measures contained in the Administrative Consent Orders and permits will ensure attainment and maintenance of the PM 10 NAAQS. Additional information concerning the state submittal is contained in the technical support document for this action which is available from the EPA contact above.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

We are approving as a revision to the Iowa SIP, A.C.Os. for Holnam, Inc., and Lehigh Portland Cement Company in Mason City, Iowa. We are also approving the related construction permits for each company. We are processing this action as a final action because we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

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 CAA. 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 CAA. 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 CAA. 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 CAA, 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 Agency included in the final rule a list of those who may be potentially affected by the action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Docket . EPA has established an official public docket for this action under docket ID number OPP-2002-0224. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

2. Electronic access . You may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_ 40/40cfr180_00.html, a beta site currently under development.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket ID number.

In the Federal Register of September 19, 2002 (67 FR 59006) (FRL-7200-4), EPA issued tolerances for the insecticide diflubenzuron (N-[[4-chlorophenyl)amino]-carbonyl]-2,6-difluorobenzamide) and its metabolites, 4-chlorophenylurea (CPU) and 4-chloroaniline (PCA) in or on various commodities. This document is being issued to correct two inadvertent omissions in that document.

FR Doc. 02-23818 is corrected as follows:

1. On page 59013, in the middle column, second full paragraph from the top, the fourth sentence should read: “There are reliable data that indicate there are no residual concerns for pre- and/or post-natal toxicity.”

2. On page 59015, under Unit IV., section B. International Residue Limits should read: “Codex and Mexican maximum residue limits (MRLs) are established for residues of diflubenzuron per se in/on plums (including prunes) at 1 ppm. Mexican MRLs are established for residues of diflubenzuron per se . Use of diflubenzuron in Canada is limited to mosquito control; therefore, no Canadian MRLs have been established. Based on the current tolerance expression, the Codex and U.S. tolerance definitions are not compatible.”

Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's correction final without prior proposal and opportunity for comment, because EPA is merely inserting language that was inadvertently omitted from the previously published final rule. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

This document makes minor corrections to the preamble of the final rule issued on September 19, 2002, and it does not otherwise impose or amend any requirements. As such, the Office of Management and Budget (OMB) has determined that a technical correction is not a “significant regulatory action” subject to review by OMB under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to 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). Since this action does not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on 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, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 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 action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, 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 rule 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. Thus, Executive Order 13175 does not apply to this rule.

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 this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Pursuant to section 410(b) of the Communications Act of 1934, as amended, 47 U.S.C. 410(b), the Commission appoints the following State representatives to the Joint Conference: the Honorable Nancy Brockway, Commissioner, New Hampshire Public Utilities Commission; the Honorable Terry Deason, Commissioner, Florida Public Service Commission; the Honorable Rebecca A. Klein, Chairman, Texas Public Utility Commission; the Honorable Loretta Lynch, President, California Public Utilities Commission; and the Honorable Diane Munns, Chairman, Iowa Utilities Board. The Honorable Kevin J. Martin is designated to serve as the Chairman of the Joint Conference. The Honorable Michael J. Copps will serve as a participating federal member. Henceforth, a copy of each filing in this proceeding shall be served on each member of the Joint Conference at the addresses listed in appendix A of the Order. Accordingly, it is ordered that, pursuant to section 410(b) of the Communications Act of 1934, as amended, 47 U.S.C. 410(b), this Order is adopted.

This is a synopsis of the Report and Order in MM Docket No. 99-322 adopted October 16, 2002, and released October 18, 2002. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail qualixint@aol.com.

This is a synopsis of the Commission's Report and Order, MM Docket No. 02-119, adopted October 9, 2002, and released October 18, 2002. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractors, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com .

The directed monkfish fishery closed on May 1, 2002, due to the implementation of default management measures scheduled to take effect during Year 4 of the FMP (May 1, 2002 - April 30, 2003). The Year-4 default measures were included in the FMP to ensure that the FMP objectives were attained. These measures eliminate the directed monkfish fishery by allocating zero monkfish days-at-sea (DAS), and by allowing only incidental landings of monkfish. The New England and Mid-Atlantic Fishery Management Councils (Councils) developed Framework 1 to the FMP in order to delay the implementation of the Year-4 default management measures for 1 year, until May 1, 2003, and to implement alternative measures for Year-4, since a 3-year review of the status of the monkfish stock determined that the implementation of these restrictive default measures was not necessary. However, following the submission of Framework 1 by the Councils to NMFS, and the publication of a proposed rule, it was determined that Framework 1 was not consistent with the F criteria specified in the FMP. As a result, NMFS disapproved Framework 1 and implemented an emergency interim rule that temporarily amended the F criteria in the FMP to be consistent with the most recent stock assessment (SAW 34; January 2002). In this same regulatory action, NMFS implemented the measures proposed in Framework 1 because, with the amendment of the F criteria in the FMP through the emergency interim rule, the measures were found to be consistent with the best available scientific information.

This action extends the emergency interim measures for 163 days, effective November 19, 2002, through April 30, 2002. Emergency interim measures extended by this action include a target total allowable catch (TAC) of 19,595 metric tons (mt) for the 2002 fishing year (May 1, 2002 - April 30, 2003), with area-specific TACs of 11,674 mt and 7,921 mt for the Northern Fishery Management Area (NFMA) and the Southern Fishery Management Area (SFMA), respectively; allocation of 40 DAS to limited access monkfish vessels for the 2002 fishing year (May 1, 2002 - April 30, 2003); a revision to the monkfish trip limits in the SFMA to 550 lb (249 kg) (tail weight per DAS) for vessel permit categories A and C, and 450 lb (204 kg) (tail weight per DAS) for vessel permit categories B and D while fishing on a monkfish DAS in the SFMA; and maintenance of all other measures as established for Year 3 of the FMP, including less restrictive incidental catch limits.

Comment 1: NMFS failed to justify the need for emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The argument used by NMFS in justifying the emergency interim rule had no merit.

Response: There was substantial justification for the need for the emergency interim rule in the May 22, 2002, Federal Register rule implementing this action, and the accompanying environmental assessment (EA). These documents discuss in detail how the emergency interim rule meets the “emergency criteria” and “emergency justification” for determining the appropriateness of section 305 (c) rulemaking outlined in NMFS' Policy Guidelines for the Use of Emergency Rules (Emergency Guidelines) found at 62 FR 44421, et seq. (August 21, 1997). In summary, these documents stated that implementing the action through section 305(c) emergency authority is justifiable because the need to disapprove the framework action and immediately amend the FMP to make it compatible with the best scientific information available only became discoverable after NMFS had the time to fully evaluate the framework action after the public comment period had ended, thus creating a “recently discovered circumstance”. In addition, to have delayed the incorporation of the newest science into the FMP and delayed implementation of the action necessary to avoid the default measures would have resulted in substantial, unwarranted and unnecessary economic harm to the industry and would have likely caused wasteful bycatch of monkfish in other fisheries.

Comment 2: The emergency action does not contain any analysis showing whether or not it will halt monkfish overfishing this year or allow rebuilding by 2009.

Response: NMFS considered all available information regarding the stock biomass level and fishing mortality rate in its decision to implement the emergency interim rule. The fact that stock biomass has increased significantly from 2000 to 2001 in both management areas at current landing levels indicates that the level of fishing mortality resulting from the measures in this action should allow the stock to continue rebuilding. Therefore, there is no evidence that these measures will prevent rebuilding by 2009. Furthermore, the emergency interim rule and this extension postpone the default measures for only 1 year; in the absence of any further management action, the default measures will become effective on May 1, 2003. Both Councils intend to reconsider fully the best available scientific information in the development of revised overfishing definitions in Framework 2, which is scheduled to be implemented at the start of the 2003 fishing year on May 1, 2003.

Comment 3: The emergency interim rule does not adequately assess and minimize the impacts on essential fish habitat (EFH). Of particular concern, the EA prepared for the emergency interim rule fails to discuss the impacts of fishing gear on deep sea corals in the continental slope habitats and on emergent epifauna on hard bottom.

Response: NMFS disagrees, and notes that the EA prepared for the emergency interim rule contains an EFH assessment as required by the Magnuson-Stevens Act. A comprehensive assessment of the adverse effects of fishing on EFH is not within the scope and context of this emergency action. Furthermore, the commenter is a party to the litigation that challenged the consideration of EFH in the FMP (American Oceans Campaign v. Daley (D.D.C. 2000)). NMFS and the litigants have signed a settlement agreement in that case, and have agreed that EFH will be fully reconsidered in Amendment 2 to the FMP, which is scheduled to be implemented during the fall of 2003. In the meantime, the settlement agreement contemplates that the comprehensive assessment of the adverse effects of fishing on EFH that was included in the New England Council's EFH amendment to the FMP (Amendment 1) may be relied upon. Further, since this action makes no change in effort from the prior year, there should be no change in habitat impacts from those described for the first 3 years of the FMP.

The commenter expressed specific concern about gillnet impacts on deep-sea corals. Such corals are not designated as EFH for any species in waters off of the northeastern United States, so it is not necessary to address impacts to deep-sea corals in order to comply with EFH requirements. Further, according to the NMFS Report on Fishing Gear Effects on Marine Habitats off the Northeastern United States (February 2002), there is very little sink gillnet fishing gear used in waters deeper than 100 m or in submarine canyons, which is where most of such corals exist.

Comment 4: The emergency interim rule fails to establish a standardized bycatch reporting methodology, or to minimize bycatch and bycatch mortality as required by the Sustainable Fisheries Act and recent case law. Of particular concern are the capture of deep-sea species such as deep-sea jelly fish, octopi, and sharks as the monkfish fishery extends its range further offshore.

Response: The existing data collection system requires vessel operators to provide bycatch data on mandatory Vessel Trip Reports that must be submitted for each fishing trip. In addition, detailed information is collected through the NMFS Observer Program, which deploys trained independent observers on commercial vessels. NMFS is currently increasing the amount of observer coverage on vessels fishing for Northeast multispecies, and this action will likely result in further information concerning monkfish, as well. NMFS agrees that, in the long term, it must improve the collection of bycatch information, but disagrees that the emergency interim rule should be suspended because it does not address this issue. As stated in the EA for the emergency interim rule, to effectively address bycatch assessment concerns would require a global set of measures applicable to all of the Northeast region's fisheries, since most vessels in the region are involved in a variety of fisheries, even during one fishing trip. NMFS is committed to improving bycatch assessment, as evidenced by the settlement agreement entered into with the other litigatory parties in Conservation Law Foundation, et al. v. Evans, et al. It is beyond the scope and context of the emergency interim rule process to require a global system of measures to be established to improve bycatch monitoring, assessment and reduction in only one fishery.

With respect to minimizing bycatch, NMFS notes that national standard 9 requires minimization of bycatch to the extent practicable. The EA prepared for the emergency interim rule notes that, with the stock biomass increasing, there is an increased likelihood that vessels targeting other species will incidentally harvest monkfish. Therefore, if the emergency interim rule were not extended and Year-4 default management measures became effective, the directed fishery would be completely eliminated and vessels that previously participated in that fishery would be expected to target other species. As such, the default measures would be expected to increase bycatch and bycatch mortality, providing no improved conservation to the stock.

With respect to the commenter's specific concern about bycatch of deep-sea animals, NMFS notes that the 2001 cooperative survey, upon which this comment is based, provided new information that will be fully considered by the Councils as they develop Amendment 2 to the FMP. NMFS also notes that the trip limits established for the SFMA fishery under the emergency interim rule and this emergency rule extension are restrictive and unlikely to support a directed fishery offshore.

Comment 5: The environmental analysis accompanying the emergency action is deficient, and the magnitude of the impacts require the preparation of an environmental impact statement (EIS) rather than an EA.

Response: Although NMFS agrees with the commenter that this action makes a modification from the measures contemplated for Year-4 in the FMP, NMFS has determined that this action does not have significant impacts that would require the preparation of an EIS, as discussed in the EA and its Finding of No Significant Impact (FONSI) statement. In support of their comment that an EIS should have been prepared for this action, the commenters mostly rely on comments already addressed herein concerning consistency of the action with FMP overfishing and rebuilding objectives, bycatch methodologies and minimization, and EFH concerns. These concerns are addressed under Responses to Comments 2, 3 and 4. As explained in the responses to these comments, because this action is for 1 year only, because an EIS is being prepared for Amendment 2, and for other reasons stated in the EA and its FONSI, NMFS concludes that an EA is appropriate for this emergency action.

The Assistant Administrator for Fisheries, NOAA (AA), has determined that this extension is needed to prevent the restrictive Year-4 default management measures from taking effect on November 19, 2002. Extending the current management measures established by the emergency interim rule (67 FR 35928, May 22, 2002) through implementation of Framework 2 on May 1, 2003, is necessary to prevent substantial, unwarranted and unnecessary economic harm to the industry and a likely increase in monkfish bycatch in other fisheries as a result of terminating the directed monkfish fishery. Accordingly, the AA is extending the expiration date of this emergency interim rule until the effective date of the 2003 management measures, not to exceed 180 days.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared a final regulatory flexibility analysis (FRFA) for this action. A summary of the FRFA follows.

A description of the objectives of the emergency interim rule and the need for this extension are explained in the preamble for this action and are not repeated here. This action does not contain any collection-of-information, reporting, record-keeping, or other compliance requirements. It does not duplicate, overlap, or conflict with any other Federal rules.

One public comment was received on the emergency interim rule. However this comment did not address any of the economic impacts associated with the implementation of this rule.

The measures contained in the emergency interim rule and its proposed extension potentially affect the approximately 704 vessels that currently hold a limited access monkfish permit. According to the analysis presented in the environmental assessment (EA) prepared for the emergency interim rule, the preferred alternative (implementation of the emergency interim rule) was expected to result in loss of income from fishing year 2000 levels for several vessel types. However, these projected losses in income were lower than the losses that would result from implementation of either the non-preferred or no action alternatives. Therefore, because the analysis showed that the emergency interim rule would have the least effect on small entities compared to the non-preferred and no action alternatives, this preferred alternative was selected.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) states that for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides”. The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide (the guide) was prepared. Copies of the guide will be sent to all holders of permits issued for the monkfish fishery. The guide will be available on the Internet at http://www.nero.noaa.gov. Copies of the guide can also be obtained from the Regional Administrator (see ADDRESSES ).