1. Overview

The President signed into law the National Defense Authorization Act for Fiscal Year 2002, Public Law 107-107, on December 28, 2001. Sections 1131 and 1132 of that law amend existing provisions of the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS) relating to service with a Department of Defense (DoD) or Coast Guard Nonappropriated Fund Instrumentality (NAFI). Section 1131 amends rules relating to portability of retirement coverage when employees move from NAFI positions to civil service positions and vice versa. Section 1132 amends rules relating to service credit for NAFI service under CSRS and FERS.

These interim regulations amend current regulations that define a qualifying move from DoD or Coast Guard NAFI positions to civil service positions and vice versa. In addition, these interim regulations add two subparts to 5 CFR part 847. Subpart H describes how employees may elect to credit NAFI service to qualify for immediate CSRS or FERS retirement. Subpart I describes how such an election will affect the computation of the CSRS or FERS annuity benefit.

A qualifying move from a DoD or Coast Guard NAFI position to a civil service position allows an employee to elect to continue NAFI retirement coverage in the civil service position. Similarly, a qualifying move from a civil service position to a DoD or Coast Guard NAFI position allows an employee to elect to continue civil service retirement coverage in the NAFI position. As originally defined, for a move to be considered qualifying, among other requirements, employees had to be vested in the retirement plan of the position they were leaving. Section 1131 of Public Law 107-107 eliminates that vesting requirement for moves that occur on or after December 28, 2001.

Section 1132 of Public Law 107-107 allows CSRS and FERS employees to use NAFI service to qualify for immediate retirement. However, crediting NAFI service under Public Law 107-107 will not result in higher annuity benefits. The annuities of employees electing to use NAFI service to qualify for immediate retirement must be reduced to ensure that there will be no long-term cost to the Retirement Fund. The annuities payable after this reduction will be actuarially equivalent to the present value of the deferred annuities employees would receive if they simply left Government service and didn't use the NAFI time to qualify for an immediate retirement.

Section 1132 has no effect on previous laws that allow credit for certain NAFI service. Public Law 104-106, approved February 10, 1996, allowed certain FERS employees to elect retirement credit for their NAFI service. Public Law 99-638, enacted on November 10, 1986, allowed CSRS employees to credit certain NAFI service performed between June 19, 1952, and December 31, 1965. NAFI service creditable under either of those laws remains creditable under the provisions of those laws.

We have amended 5 CFR 847.202 to reflect the new definition of a qualifying move. An employment move on or after December 28, 2001, from a covered NAFI position to a covered civil service position is a qualifying move allowing the employee to elect to continue the NAFI retirement coverage if:

• The employee has not had a prior opportunity to elect to continue NAFI retirement coverage;

• The employee has moved from a covered NAFI position within DoD or the Coast Guard to any covered civil service position; and

• The employee has moved to the covered civil service position not more than 1 year after separating from the covered NAFI position.

Likewise, an employment move on or after December 28, 2001, from a covered civil service position to a covered NAFI position is a qualifying move allowing the employee to elect to continue CSRS, CSRS Offset, or FERS retirement coverage if:

• The employee has not had a prior opportunity to elect to continue CSRS, CSRS Offset, or FERS retirement;

• The employee has moved from any covered civil service position to a covered NAFI position within DoD or the Coast Guard; and

• The employee has moved to the covered NAFI position not more than 1 year after separating from the covered civil service position.

A new subpart H in 5 CFR part 847 outlines the rules relating to electing NAFI credit to qualify for immediate CSRS or FERS retirement.

CSRS or FERS employees leaving Federal service on or after December 28, 2001, who have DoD or Coast Guard NAFI service not otherwise creditable under CSRS or FERS, may use that service to qualify for immediate retirement. To be able to use their NAFI service in this way, employees must already be eligible for CSRS or FERS deferred retirement benefits based on their non-NAFI service. Employees already eligible for immediate retirement benefits based on their non-NAFI service cannot make an election under 5 CFR part 847, subpart H, to credit their NAFI service for CSRS or FERS retirement purposes.

Employees may elect to credit any service they performed as an employee paid from nonappropriated funds of an instrumentality of DoD or Coast Guard. This includes NAFI service that was covered by an NAFI retirement plan as well as NAFI service that was not covered by an NAFI plan. FERS employees may even elect to credit NAFI service performed after 1988. Employees cannot pay CSRS or FERS deposits to cover the NAFI service, and NAFI retirement deductions withheld for any of the NAFI service cannot be transferred to the CSRS or FERS retirement fund.

There is one limitation affecting elections to credit NAFI service to qualify for immediate CSRS or FERS retirement. NAFI service used to qualify for CSRS or FERS immediate retirement cannot also be used under an NAFI retirement system for any purpose.

Employees must elect complete periods of service with an NAFI employer. For example, a CSRS employee who worked 6 years under a covered appointment for a DoD NAFI must elect to credit the entire 6 years even if the employee only needs 2 years of service to qualify for an immediate CSRS retirement.

A complete period of service with an NAFI employer is the period from the date of appointment to the date of separation. If an employee moves directly from an NAFI appointment excluded from NAFI retirement coverage to an appointment subject to NAFI retirement coverage with the same NAFI employer, the move from non-covered employment to covered employment is considered to be a separation. For example, a CSRS employee needs 2 years of service to qualify for an immediate CSRS retirement. The employee has 6 consecutive years of NAFI service—2 years under an appointment excluded from NAFI retirement coverage and 4 years under an appointment covered by an NAFI retirement plan. The 2 years of NAFI service not subject to NAFI retirement coverage is considered a complete period of service, and the employee may elect to credit only that 2 years of NAFI service for CSRS retirement purposes.

Employees wanting to elect to credit NAFI service to qualify for immediate CSRS or FERS retirement must do so when they retire. They need to submit their election, on a form specified by OPM, to their employing agency before their actual retirement date. They must also notify the appropriate NAFI retirement plan of their election and obtain verification of their NAFI employment from the NAFI retirement system.

A new subpart I in 5 CFR part 847 outlines the rules OPM will use to compute the annuity of employees who elect to use NAFI service to qualify for immediate CSRS or FERS retirement.

Electing to credit NAFI service to qualify for immediate CSRS or FERS retirement will not increase the amount of the annuity. The amount of annuity including NAFI service must be reduced by the amount necessary to ensure that the present value of the annuity payable to the employee is actuarially equivalent to the present value of the deferred annuity that would be payable to the employee assuming the employee:

• Separated from service on the actual date of retirement; and

• Elected not to credit the NAFI service to qualify for immediate retirement.

Present value is a financial term. As used in retirement, present value is the sum of money required at the present time to fund a future stream of payments. It is computed using an actuarial model that incorporates appropriate assumptions as to inflation and interest rates.

To ensure that the present value of the immediate annuity with credit for NAFI service equals the present value of the deferred annuity without credit for NAFI service, the gross monthly rate of the immediate annuity must be reduced by an amount derived using the following formula:

The present value of an immediate annuity is the sum of money required at the commencing date of the annuity to fund the annuity. It is calculated by multiplying the monthly rate of annuity by the present value factor corresponding to the employee's age as of the commencing date of the annuity. A present value factor is a factor calculated by OPM's actuary using generally accepted actuarial standards and on the basis of assumptions used by the Board of Actuaries of the Civil Service Retirement System.

The present value of a deferred annuity is the sum of money required at the commencing date of the immediate annuity to fund the future deferred annuity. It is calculated by multiplying the monthly rate of the deferred annuity by the present value factor corresponding to the employee's age as of the commencing date of the deferred annuity, and then multiplying the result by a discount factor. The discount factor is a factor derived from the assumed rate of investment return earned by the Civil Service Retirement and Disability Fund, and the amount of time between the commencing dates of the immediate and deferred annuities.

(Currently, the rate of investment return on the Civil Service Retirement and Disability Fund is 7 percent. However, on May 9, 2002, OPM published a notice in the Federal Register announcing a change in the FERS normal cost percentages. In that notice, OPM also announced that the rate of investment return on the Civil Service Retirement and Disability Fund will change to 6.75 percent beginning October 1, 2002.)

The gross monthly rates of annuity used in the present value calculations are computed under the appropriate annuity formula applying the proper reductions for age, survivor elections, unpaid deposits and redeposits, and alternative annuity elections. In computing the gross monthly rate of the deferred annuity, interest on any deposit or redeposit balances does not accrue beyond the commencing date of the immediate annuity. In addition, the present value factors used in the reductions for unpaid redeposit and alternative annuity election correspond to the employee's age as of the commencing date of the deferred annuity.

If a FERS employee has at least 10 years of creditable (non-NAFI) service, the gross monthly rate of the deferred annuity is computed as of the first day of the month after the employee reaches the minimum retirement age. Using that commencing date for the deferred annuity maximizes the present value of the deferred annuity.

An FERS annuity supplement is not payable to FERS employees who elect to use NAFI service to qualify for an immediate FERS retirement.

If a retiree who elected to credit NAFI service to qualify for an immediate retirement returns to work for the Government, the following rules will apply to any benefit earned as the result of the reemployment.

• If the retiree qualifies for a supplemental annuity under 5 CFR part 837, the supplemental annuity will not be subject to the reduction outlined in 5 CFR part 847, subpart I.

• If the retiree qualifies for a redetermined annuity under 5 CFR part 837, the redetermined annuity will be computed with the reduction outlined in 5 CFR part 847, subpart I, if the retiree needs to credit NAFI service to qualify for the redetermined annuity. The reduction under 5 CFR part 847, subpart I, will be recomputed based on the retiree's age as of the commencing date of the redetermined annuity. The retiree does not need to make a new election to credit NAFI service under 5 CFR part 847, subpart H. The original election will remain in effect.

• If the retiree qualifies for a redetermined annuity under 5 CFR part 837, the redetermined annuity will not be subject to the reduction outlined in 5 CFR part 847, subpart I, if the retiree qualifies for the redetermined annuity without crediting the NAFI service. If the retiree elects the redetermined annuity, the election the retiree made to credit the NAFI service under 5 CFR part 847, subpart H, when the retiree originally retired will not remain in effect.

• If the retiree's annuity terminated upon reemployment, and if the retiree qualifies for a new immediate annuity when the reemployment ends, the new annuity will be computed with the reduction outlined in 5 CFR part 847, subpart I, if the retiree needs to credit NAFI service to qualify for the new annuity. The retiree must submit a new election to credit the NAFI service in accordance with 5 CFR part 847, subpart H.

• If the retiree's annuity terminated upon reemployment, and if the retiree qualifies for a new immediate annuity when the reemployment ends, the new annuity will not be subject to the reduction outlined in 5 CFR part 847, subpart I, if the retiree qualifies for the new annuity without crediting the NAFI service. The election the retiree made to credit the NAFI service under 5 CFR part 847, subpart H, when the retiree originally retired will not remain in effect.

• If the retiree's annuity terminated upon reemployment, and if the retiree qualifies for a deferred annuity, but not a new immediate annuity when the reemployment ends, the deferred annuity will not be subject to the reduction outlined in 5 CFR part 847, subpart I. The election the retiree made to credit the NAFI service under 5 CFR part 847, subpart H, when the retiree originally retired, will not remain in effect.

• If the retiree's annuity terminated upon reemployment, and if the retiree does not qualify for either a new immediate annuity or a deferred annuity when the reemployment ends, the old annuity will be reinstated. The retiree does not need to make a new election to credit NAFI service under 5 CFR part 847, subpart H. The original election will remain in effect.

The amount of the survivor annuity provided by a retiring employee who elects to credit NAFI service under 5 CFR part 847, subpart H, to qualify for immediate CSRS or FERS retirement is also subject to reduction. The reduction is computed in the same way that the reduction to the employee's annuity rate is computed. The present value of the initial survivor rate generated by the immediate annuity computation (with credit for NAFI service) equals the initial survivor rate multiplied by the present value factor corresponding to the employee's age as of the commencing date of the immediate annuity. The present value of the initial survivor rate generated by the deferred annuity computation (without credit for NAFI service) equals the initial survivor rate multiplied by the present value factor corresponding to the employee's age as of the deferred annuity date, multiplied by the discount factor corresponding to the amount of time between the immediate annuity commencing date and the deferred annuity date. The difference between the two present values is then divided by the present value factor corresponding to the employee's age as of the immediate annuity commencing date. The result, rounded up to the higher dollar, equals the reduction that applies to the initial survivor rate generated by the immediate annuity computation.

Under section 553(b)(3)(B) and (d)(3) of title 5, United States Code, I find that good cause exists for waiving the general notice of proposed rulemaking and to make these rules effective in less than 30 days. The regulations are effective December 28, 2001, the date the President signed the statute. The statute requires OPM to establish by regulation the procedure for computing an annuity when NAFI service is used to qualify for an immediate retirement. Delaying implementation of these regulations would unnecessarily delay the availability of the benefits of the new law.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it affects only certain Federal employees.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. In addition, the substance of this special condition has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making this special condition effective upon issuance.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, views, or data. Communications should identify the regulatory docket or special condition number and be submitted in duplicate to the address specified above. We will consider all comments we receive on or before the closing date for comments. We may change this special condition in light of the comments we receive. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. If you want the FAA to acknowledge receipt of your mailed comments on this special condition, include a self-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On November 29, 2000, Global Helicopter Technology, Inc. (GHTI) applied for an STC for the installation of a Pratt & Whitney PT6-67D Turbine Engine on the GHTI, U.S. Army UH-1H, Restricted Category Helicopter, type certificated under Type Certificate R00002RC. The UH-1H Restricted Category helicopter is a utility/heavy lift helicopter with a two-bladed teetering main rotor system. It is to be powered by a single Pratt and Whitney PT6-67D engine that incorporates a full authority digital engine control (FADEC). The maximum gross weight of the aircraft is 9,500 pounds.

Under the provisions of 14 CFR 21.101, GHTI must show that the Engine Installation meets the applicable provisions of the regulations as listed below:

• 14 CFR part 29 as amended through and including Amendment 29-1, effective August 12, 1965.

• 14 CFR 29.1529, Instructions for Continued Airworthiness, Amendment Number 20, effective September 11, 1980.

In accordance with 14 CFR 36.1(a)(4), compliance with the noise requirements was not shown for the aircraft. Therefore, the engine installations under this supplemental type certificate are only eligible for external load operations excepted by 14 CFR 36.1(a)(4) and defined under section 133.1(b). Any alteration to the aircraft for Special Purpose not identified above will require further FAA approval and in addition, may require noise and/or flight testing.

In addition, the certification basis includes certain equivalent safety findings that are not relevant to this special condition.

If the Administrator finds that the applicable airworthiness regulations do not contain adequate or appropriate safety standards for this STC because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions, as appropriate, are defined in § 11.19 and issued in accordance with § 11.38 and become part of the STC certification basis in accordance with § 21.17(a)(2).

Special conditions are initially applicable to the model and/or modification for which they are issued. Should the type certificate or supplemental type certificate (STC) for that model or installation respectively, be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model or modification under the provisions of § 21.101(a)(1).

The GHTI UH-1H Restricted Category Helicopter with a Pratt & Whitney PT6-67D engine installed will incorporate the following novel or unusual design features: Electrical, electronic, or a combination of electrical electronic (electrical/electronic) systems such as FADEC that will be performing functions critical to the continued safe flight and landing of the helicopter. FADEC is an electronic device that performs the functions of engine control during flight operations.

The GHTI installation of the PT-6-67D in the UH-1H helicopter, at the time of application, was identified as incorporating one and possibly more electrical/electronic systems, such as a FADEC. After the design is finalized, GHTI will provide the FAA with a preliminary hazard analysis that will identify any other critical functions that are performed by the electrical/electronic systems required for safe flight and landing.

Recent advances in technology have given rise to the application in aircraft designs of advanced electrical/electronic systems that perform critical functions. These advanced systems respond to the transient effects of induced electrical current and voltage caused by HIRF incidents on the external surface of the helicopter. These induced transient currents and voltages can degrade the performance of the electrical/electronic systems by damaging the components or by upsetting the systems' functions.

Furthermore, the electromagnetic environment has undergone a transformation not envisioned by the current application of § 29.1309(a). Higher energy levels radiate from operational transmitters currently used for radar, radio, and television. Also, the number of transmitters has increased significantly.

Existing aircraft or alteration certification requirements are inappropriate in view of these technological advances. In addition, the FAA has received reports of some significant safety incidents and accidents involving military aircraft equipped with advanced electrical/electronic systems when they were exposed to electromagnetic radiation.

The combined effects of the technological advances in helicopter design and the changing environment have resulted in an increased level of vulnerability of the electrical/electronic systems required for the continued safe flight and landing of the helicopter. Effective measures to protect these helicopters against the adverse effects of exposure to HIRF will be provided by the design and installation of these systems. The following primary factors contributed to the current conditions: (1) Increased use of sensitive electronics that perform critical functions; (2) reduced electromagnetic shielding afforded helicopter systems by advanced technology airframe materials; (3) adverse service experience of military aircraft using these technologies; and (4) an increase in the number and power of radio frequency emitters and the expected increase in the future.

The FAA recognizes the need for aircraft certification standards to keep pace with the developments in technology and environment and, in 1986, initiated a high priority program to (1) determine and define electromagnetic energy levels; (2) develop and describe guidance material for design, test, and analysis; and (3) prescribe and promulgate regulatory standards.

The FAA participated with industry and airworthiness authorities of other countries to develop internationally recognized standards for certification.

The FAA and airworthiness authorities of other countries have identified a level of HIRF environment that a helicopter could be exposed to during visual flight rules (VFR) operations. While the HIRF rulemaking requirements are being finalized, the FAA is adopting a special condition for the certification of aircraft that employ electrical/electronic systems that perform critical functions. The accepted maximum energy levels that civilian helicopter system installations must withstand for safe operation are based on surveys and analysis of existing radio frequency emitters. This special condition will require the engine installation's electrical/electronic systems and associated wiring to be protected from these energy levels. These external threat levels are believed to represent the worst-case exposure for a helicopter operating under VFR conditions.

These special conditions will require the systems that perform critical functions, as installed in the aircraft, meet certain standards based on either a defined HIRF environment or a fixed value using laboratory tests.

The applicant may demonstrate that the operation and operational capabilities of the installed electrical/electronic systems that perform critical functions are not adversely affected when the aircraft is exposed to the defined HIRF test environment. The FAA has determined that the test environment defined in Table 1 is acceptable for critical functions in helicopters.

The applicant may also demonstrate by a laboratory test that the electrical/electronic systems that perform critical functions can withstand a peak electromagnetic field strength in a frequency range of 10 KH z to 18 GH z . If a laboratory test is used to show compliance with the defined HIRF environment, no credit will be given for signal attenuation due to installation. A level of 100 volts per meter (v/m) and other considerations, such as alternate or backup technology that is immune to HIRF, are appropriate for critical functions during instrument flight rules (IFR) operations. A level of 200 v/m is more appropriate for critical functions during VFR operations. Laboratory test levels are defined according to RTCA/DO-160D Section 20 Category W (100 v/m and 150 mA) and Category Y (200 v/m and 300 mA). As defined in DO-160D Section 20, the test levels are defined as the peak of the root means squared (rms) envelope. As a minimum, the modulations required for RTCA/DO-160D Section 20 Categories W and Y will be used. Other modulations should be selected as the signal most likely to disrupt the operation of the system under test, based on its design characteristics. For example, flight control systems may be susceptible to 3 H z square wave modulation while the video signals for electronic display systems may be susceptible to 400 H z sinusoidal modulation. If the worst-case modulation is unknown or cannot be determined, default modulations may be used. Suggested default values are a 1 KH z sine wave with 80 percent depth of modulation in the frequency range from 10 KH z to 400 MH z and 1 KH z square wave with greater than 90 percent depth of modulation from 400 MH z to 18 GH z . For frequencies where the unmodulated signal would cause deviations from normal operation, several different modulating signals with various waveforms and frequencies should be applied.

Applicants must perform a preliminary hazard analysis to identify electrical/electronic systems that perform critical functions. The term “critical” means those functions whose failure would contribute to or cause an unsafe condition that would prevent the continued safe flight and landing of the helicopter. The systems identified by the hazard analysis as performing critical functions are required to have HIRF protection.

A system may perform both critical and noncritical functions. Primary electronic flight display systems and their associated components perform critical functions such as attitude, altitude, and airspeed indications. HIRF requirements would apply only to the systems that perform critical functions.

Compliance with HIRF requirements will be demonstrated by tests, analysis models, similarity with existing systems, or a combination of these methods. The two basic options of either testing the rotorcraft to the defined environment or laboratory testing may not be combined. The laboratory test allows some frequency areas to be under tested and requires other areas to have some safety margin when compared to the defined environment. The areas required to have some safety margin are those shown, by past testing, to exhibit greater susceptibility to adverse effects from HIRF; and laboratory tests, in general, do not accurately represent the aircraft installation. Service experience alone will not be acceptable since such experience in normal flight operations may not include an exposure to HIRF. Reliance on a system with similar design features for redundancy, as a means of protection against the effects of external HIRF, is generally insufficient because all elements of a redundant system are likely to be concurrently exposed to the radiated fields.

The modulation that represents the signal most likely to disrupt the operation of the system under test, based on its design characteristics should be selected. For example, flight control systems may be susceptible to 3 Hz square wave modulation. If the worst-case modulation is unknown or cannot be determined, default modulations may be used. Suggested default values are a 1 KHz sine wave with 80 percent depth of modulation in the frequency range from 10 KHz to 400 MHz, and 1 KHz square wave with greater than 90 percent depth of modulation from 400 MHz to 18 GHz. For frequencies where the unmodulated signal would cause deviations from normal operation, several different modulating signals with various waveforms and frequencies should be applied.

Acceptable system performance would be attained by demonstrating that the critical function components of the system under consideration continue to perform their intended function during and after exposure to required electromagnetic fields. Deviations from system specifications may be acceptable but must be independently assessed by the FAA on a case-by-case basis.

As discussed above, this special condition is applicable to Supplemental Type Certificate (STC) Project Number ST2017RC-R, for the installation of a Pratt & Whitney PT6-67D turbine engine in GHTI UH-1H military surplus helicopters type certificated under TC R00002RC. Should GHTI apply at a later date for a change to the STC to include another model incorporating the same novel or unusual design feature, the special condition would apply to that STC modification as well under the provisions of § 21.101(a)(1).

This action affects only certain novel or unusual design features associated with the STC project listed above. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the helicopter.

The substance of this special condition has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. For this reason and because a delay would significantly affect the certification of the helicopter modification which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting this special condition upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for this special condition is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special condition is issued as part of the type certification basis for STC Project ST2017RC-R, installation of PT6-67D on Global Helicopter Technology, Inc (GHTI), Model UH-1H, Restricted Category Helicopters, type certificated under TC R00002RC.

Each system that performs critical functions must be designed and installed to ensure that the operation and operational capabilities of these critical functions are not adversely affected when the helicopter is exposed to high intensity radiated fields external to the helicopter.

On November 25, 2002 a notice proposing to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by providing additional Class D airspace extending two miles along the southeast and northwest localizer courses for Westchester County Airport up to but not including 3,000 feet mean sea level (MSL) was published in the Federal Register (67 FR 70564-70565). Interested parties were invited to participate in this rulemaking proceedings by submitting written comments on the proposal to the FAA. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace document are based on North American Datum 83. Class D airspace area designations for airspace extending upward from the surface are published in paragraph 5000 of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002. The Class D airspace designation listed in this document will be published in the order.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) extends Class D airspace from the surface of the earth up to but not including 3,000 feet MSL an additional two miles along the southeast and northwest localizer courses for Westchester County Airport, White Plains, NY. The extension of Class D airspace will provide coverage for aircraft conducting IFR operations to the airport.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA published this direct final rule with a request for comments in the Federal Register on November 13, 2002 (67 FR 68757). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on February 20, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

On November 25, 2002, a notice proposing to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class E airspace extending upward from 700 feet above the surface within a 9.6-mile radius of William T. Piper Memorial Airport, Lock Haven, PA was published in the Federal Register (67 FR 70566). Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before December 26, 2002. No comments to the proposal were received. The rule is adopted as proposed.

The coordinates for this airspace docket are based on North American Datum 83. Class E airspace area designations for airspace extending upward from the surface of the earth are published in paragraph 6005 of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1 The Class E airspace designation listed in this document will be published in the Order.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting IFR operations within a 9.6-mile radius of William T. Piper Memorial Airport, Lock Haven, PA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On October 3, 2002, the lateral boundaries of the Cannon A MOA were modified and the ceiling of the Cannon A MOA was raised from 5,000 feet above mean sea level up to but not including Flight Level 180. The MOA modification rendered portions of V-72 and V-289 unusable. Currently, V-289 passes through the lateral limits of the Cannon A MOA and V-72 is located immediately to the south of the Cannon A MOA at a distance that does not provide the air traffic control required separation from the MOA when the area is active. This action will allow the use of V-72 and V-289 when the Cannon A MOA is active and will enhance safety and the management of aircraft operations in the Dogwood, MO, area.

This amendment to 14 CFR part 71 realigns a segment of V-72, northeast of the Dogwood, MO, VORTAC, clockwise by one degree and realigns V-289 to coincide with V-72 for 19 nautical miles (NM) northeast of the Dogwood, MO, VORTAC before proceeding directly to the Vichy, MO, VORTAC. This realignment will allow for the use of V-72 and V-289 when the Cannon A MOA is active and will enhance the safety and management of aircraft operations in the Dogwood, MO, area. Because this action is needed for safety reasons, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest.

This regulation is limited to an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since it has been determined that this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Federal airways are published in paragraph 6010(a) of FAA Order 7400.9K dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Federal airways listed in this document will be published subsequently in the Order.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1D, Policies and Procedures for Considering Environmental Impacts. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

The shrimp fishery off the southern Atlantic states is managed under the FMP. The FMP was prepared by the South Atlantic Fishery Management Council (Council) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

NMFS approved Amendment 5 on October 23, 2002. NMFS published a proposed rule to implement Amendment 5 and requested comments on the proposed rule through October 21, 2002 (67 FR 56516, September 4, 2002). The rationale for the measures in Amendment 5 is provided in the preamble to the proposed rule and is not repeated here.

NMFS received seven comments, from three individuals and the Council, on the proposed rule (67 FR 56516, September 4, 2002). A summary of the comments received and NMFS' responses follows.

Comment 1: A vessel owner reported that she had fished for rock shrimp in the 1980's and helped to build the market for rock shrimp. She believes that she should be eligible for a permit even though she did not meet the eligibility requirements.

Response: The public was notified on April 4, 1994, that the South Atlantic Council was considering a limited access program for the rock shrimp fishery and that anyone entering the fishery after April 4, 1994, might not be assured of future participation in the fishery if a limited entry management regime were implemented. Since then, there is evidence that the fishery has become overcapitalized. For example, although the current estimate for optimum yield is 6.83 million lb (3.10 million kg), as many as 400 vessels have obtained a rock shrimp permit. The Advisory Panel of the Council believes that the fishery can support, at most, no more than 150 vessels, and it is evident that a much smaller number of vessels could take the annual harvest in most years. For these reasons, the Council limited access to the fishery to participants who could demonstrate that they had landed at least 15,000 lb (6,804 kg) of rock shrimp in any one calendar year between 1996 and 2000.

Comment 2: One fisherman and one vessel owner opposed the VMS requirement. They believe that the government should pay for the VMS system and that the VMS system was not needed. Also, they reported that they wanted to split trips between rock and penaeid shrimp without having to unload their rock shrimp catch before they could fish for penaeid “soft” shrimp.

Response: There is considerable evidence that illegal trawling by rock shrimp vessels has resulted in extensive damage to Oculina habitat. Further, national standard 9 of the Magnuson-Stevens Act requires that conservation and management measures shall, to the extent practicable, minimize bycatch. The use of an approved VMS will minimize inadvertent, as well as deliberate, trawling in protected Oculina habitat areas because vessel captains will know precisely the location of protected areas and will be informed that trawling in such areas is prohibited. It should be noted that vessels with an approved VMS system will be able to split trips between rock and penaeid shrimp trips without having to land either type of shrimp first. The VMS will enable vessel owners to monitor vessel operations which should result in safer and more efficient fishing operations that will benefit the crew as well as the vessel owner.

Comment 3: One fisherman and one vessel owner opposed the limited access program for the rock shrimp fishery. They believe that fishing is a right that all Americans should be able to exercise.

Response: The Magnuson-Stevens Act mandates that fishery resources should be managed on a sustainable basis so that an optimal yield can be obtained. As noted earlier, there is evidence that overcapitalization has occurred in the rock shrimp fishery and, at most, no more than 150 vessels should be allowed to participate in the fishery. It is clear that the rock shrimp resource is limited and that an optimum economic yield is unlikely if open access to the fishery continues. As such, a limited access program is appropriate because it is prudent and reasonable to limit fishing pressure to the level which the resource can support without overfishing and without allowing the cost of fishing to exceed the revenues obtained by selling the catch.

Comment 4: One vessel owner opposed the minimum mesh size requirement.

Response: There is empirical evidence that the use of minimum mesh sizes less than 1 7/8 inches (4.76 cm) will result in an excessive catch of smaller, less valuable shrimp. It is believed that allowing shrimp to grow larger will result in more income to fishermen as well as a more attractive product for consumers. Also, the use of larger mesh should result in less bycatch of juvenile fish and other invertebrates. For this reason, the Council proposed and NMFS approved the 1 7/8-inch (4.76-cm) minimum mesh size.

Comment 5: One vessel owner did not want individuals to have to take a test to obtain a rock shrimp operator permit.

Response: NMFS will not require any performance or competency test to obtain an operator permit.

Comment 6: The Council's Habitat and Environmental Protection and Coral, Coral Reef and Live/Hard Bottom Habitat Advisory Panels endorsed the management measures in Amendment 5, especially the VMS and operator permit requirements and urged that these measures be implemented as soon as possible.

Response: NMFS agrees.

Comment 7: The Council commented in support of the management measures proposed in Amendment 5.

Response: NMFS agrees.

The Administrator, Southeast Region, NMFS, determined that Amendment 5 is necessary for the conservation and management of the South Atlantic rock shrimp fishery and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

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

NMFS prepared a final regulatory flexibility analysis (FRFA) that describes the impact this proposed rule, if adopted, would have on small entities. The analysis is summarized as follows.

The Magnuson-Stevens Act provides the statutory basis for the rule. The objective of the final rule is to minimize additional increases in harvesting capacity in the rock shrimp fishery; reduce the bycatch of small, unmarketable rock shrimp; enhance compliance with fishery management regulations; improve protection of essential fish habitat; and ensure the long-term economic viability of the rock shrimp fishery. The final rule will: establish a limited access program for the rock shrimp fishery in the EEZ off Georgia and off the east coast of Florida (limited access area); establish a minimum mesh size for a rock shrimp trawl net in the limited access area; require the use of an approved VMS by vessels allowed to fish for rock shrimp in the limited access program; and, require an operator of a vessel in the rock shrimp fishery in the EEZ off the southern Atlantic states to have an operator permit.

No duplicative, overlapping, or conflicting Federal rules have been identified.

No comments were received regarding the economic impact of this final rule.

The number of vessels with permits for the South Atlantic rock shrimp fishery varies from year to year but has not exceeded 431. Since permits were required in the fishery in 1996, at least 540 different vessels have been permitted in the fishery. Similarly, the number of vessels that have landed rock shrimp varies from year to year. In 1996, the number of active vessels reached an historical peak of 153. From 1996 through 2000, at least 279 different vessels have recorded landings of South Atlantic rock shrimp. All of these vessels are commercial vessels; there is no recreational component of the fishery. All of the commercial vessels that have been permitted in the fishery will be affected by this final rule. Based on the Small Business Administration's current definition of a small entity in the fish harvesting sector (annual gross revenues not exceeding $3.5 million), the vast majority of these vessels are small entities. One company did own as many as 12 permitted vessels during the 1996-2000 time period. None of these vessels were active in the fishery during these years, and this company had zero landings and gross revenues from the fishery during these years. However, data on the company's operations in other fisheries have led to a determination that this company is a large entity. To maintain confidentiality, additional, detailed information regarding this company's operations cannot be provided.

At least 111 small entities (vessels) that have been active in the fishery are not expected to qualify for the limited access permit and could experience some short-term loss in revenue resulting from limiting access in the South Atlantic rock shrimp fishery off Georgia and Florida. The average loss in gross revenue per vessel would be expected to be no larger than $1,365 annually in the short term. Vessels that entered the fishery in 2001 could experience higher losses in average revenue, though data are not presently available to make such a determination. However, it is expected that some of these vessels may mitigate this loss by participating in other fisheries. Because information is not available on these vessels' economic dependence on the rock shrimp fishery, it is not possible to calculate the impact of limited access on their profitability. Since the single, large entity earned zero gross revenues from the fishery, no measurable economic impact would be imposed on this entity as a result of this action. Further, this entity would not be subject to other actions only applicable to limited access permit holders, and thus would not be affected by those actions.

For the 168 vessels expected to qualify for limited access permits, each would be required to pay a $50 fee per permit application. In addition, a time burden would be imposed as a result of having to apply for the limited access permit. The time burden for completing the application is estimated at 20 minutes. According to 2000 data from the Bureau of Labor Statistics, the average hourly wage for first-line supervisors/managers in the fishing, forestry, and farming industries is $16.72. Thus, the monetary value of this time burden is $5.58 per vessel. As a result, the total cost of this action per qualifying vessel is $55.58, or $9337 for all qualifying vessels. However, since these permits will be renewed, via application, biannually rather than annually, the total cost per year would be approximately $27.79. In cases where vessel owners have qualified as the result of a transfer in catch history, documentation would be needed to support a determination of eligibility. The time burden associated with compiling such documentation is estimated at 1 hour, for an additional one-time cost of $16.72 in the first year. Therefore, for these vessels, the monetary value of the time burden associated with this action is estimated at $19.51 per vessel. Thus, total annual costs would be $44.51 in the first year, and $27.79 in years thereafter.

For vessel owners that do not initially qualify for a limited access permit, two additional opportunities exist to obtain such a permit. Specifically, the vessel owner may submit a request to the RA for reconsideration of an initial determination of non-eligibility. The time burden associated with filing such a request is estimated to be 2 hours. In addition, these vessel owners may submit a request to be placed on a list of those desiring the re-issuance of a permit that was not renewed in a timely manner by an initial qualifier. The time burden associated with filing this request is estimated to be 5 minutes. Thus, the monetary value of these time burdens is $35 per vessel. Although it is not possible to perfectly predict how many non-qualifiers will submit such requests, those owners whose vessels were active in the fishery but did not qualify are most likely to submit one or both requests. Given that 111 active vessels are not expected to qualify, and since these vessels would have also submitted an application and therefore paid the requisite and non-refundable $50 fee, the total burden per vessel would be $85 for all such vessels, or $9435 in the aggregate.

The final rule is expected to result in lesser impacts than rejected option 2, which would limit eligibility to those who had met the criteria prior to December 31, 1999, rather than December 31, 2000. Rejected option 2 would exclude an additional 26 vessels, most of which were very active in the fishery in 2000, and the average annual short-term revenue loss per active vessel would increase from $1,365 to $4,153. Given the possibility of continued entry of new vessels into the fishery and an exacerbation of the current overcapacity problem, the no action option (rejected option 1) is not acceptable. Rejected option 3 would only enable those who entered the fishery after April 4, 1994, to obtain non-transferable permits. Relative to the final rule, this option is more restrictive on recent participants and was not supported by industry representatives. Also, it is likely that rejected option 3 would not reduce the initial level of overcapacity in the fishery. Based on the objectives of the FMP and the issues being addressed, the final rule is superior to the rejected alternatives.

The minimum mesh size requirement applicable to the limited access area could increase costs for those vessel owners whose gear does not meet the proposed minimum mesh size and who obtain limited access endorsements. The gear replacement cost is expected to be between $75 and $80 per net ($150 to $320 per vessel). During the 1996-2000 time period, active vessels expected to qualify for a limited access permit earned between $31,902 and $127,319 in gross revenues per year from the rock shrimp fishery. These vessels also typically earn revenues from other fisheries, such as the penaeid shrimp fisheries of the South Atlantic and Gulf of Mexico. Since the minimum mesh size is the predominant mesh size presently being used in the fishery, a majority of vessel owners likely will not incur these costs. However, for those owners not presently using the minimum mesh size or larger, the gear modification expense could represent between 0.1 percent and 1 percent of their annual gross revenues from this fishery in the first year.

The final rule will result in gear replacement costs for those vessels that utilize trawl nets with a smaller mesh size. Compared to the no action option, this measure would impose a higher cost on the industry. However, the Council's Rock Shrimp Advisory Panel was of the opinion that the replacement cost for the cod end would be recovered in the future as overall yields increase from allowing recruitment of small shrimp that escape to larger size classes. Also, the time saved from not having to cull many small, unmarketable shrimp in each haul could translate into more tows per trip. In comparison to rejected options 3 and 4, the Advisory Panel felt that the recommended mesh size would be more effective at allowing the escapement of small, unmarketable shrimp than the 1 and 3/4-inch (4.45-cm) mesh size. However, the 2-inch (5-cm) mesh size would allow escapement of a much higher proportion of marketable shrimp compared to this proposed mesh size. Under the assumption that the net replacement cost would be recouped from higher returns, and the Advisory Panel's recommendation that 1 and 7/8 inches (4.76 cm) is the optimal mesh size for this fishery, the mesh size specified by the final rule is superior to the alternatives considered.

The requirement for an operating VMS would impose a one-time cost to owners who obtain limited access endorsements that would not exceed $1,200. This capital cost is expected to be amortized over the average life-span of the equipment, presently estimated at 7 years. Thus, the annual cost per vessel is approximately $171. In addition, there would be some level of recurring operating/repair/maintenance costs, and no more than $800 in annual communication costs. Therefore, the requirement for an operating VMS would decrease a vessel's annual profitability by approximately $971. Given the previously noted annual gross revenue estimates, the expected annual explicit cost of the VMS requirement alone could represent between 0.8 percent and 3 percent of these vessels' annual gross revenues from the rock shrimp fishery.

Additionally, time burdens would be imposed as a result of the VMS requirement. Specifically, the time to install the VMS is estimated to be 4 hours; the time to complete and submit a statement certifying compliance with the installation and activation checklist is estimated to be 15 minutes; annual maintenance is estimated to be 2 hours each year; and the time to transmit position reports is estimated to be 14 minutes per day at sea. Current information suggests that the average, annual number of days at sea is approximately 200 for qualifying vessels active in this fishery. As such, this particular time burden is estimated at 2800 minutes or 46.67 hours per vessel. Therefore, the total time burden associated with VMS is approximately 53 hours per vessel in the first year, the monetary value of which is approximately $883 per vessel. In the years thereafter, only the time burdens associated with annual maintenance and the time to transmit position reports would be incurred. Thus, the time burden per vessel in later years would be 48.67 hours, the monetary value of which is approximately $813 annually per vessel. By combining the explicit and implicit costs, the total annual cost of this action is $1854 per vessel in the first year, and $1784 per vessel in later years, or $311,472 and $299,712 annually for all qualifying vessels.

The final rule will likely result in higher costs than rejected option 3, under which only vessels with a past fishery violation would be required to use VMS, as opposed to all vessels. The use of an approved vessel monitoring system is necessary to protect essential fish habitat and essential fish habitat areas of particular concern. Illegal use of rock shrimp trawls within the Oculina Bank can result in damage to bottom habitat, as emphasized in a recent report presented to the Council on this topic. This latest report indicates that only 20 acres of Oculina coral remain intact, not only in this area, but in the world. Requiring rock shrimp vessels to carry an approved VMS unit will improve compliance and allow the rock shrimp fishermen to demonstrate that they are not fishing in any closed areas. Currently, the probability of detecting fishing in the Oculina Bank HAPC is low, given the distance from shore and the frequency of Coast Guard patrols in this area. VMS technology will significantly improve the detection of fishery violations in this closed area. Thus, the final rule is superior to the no action option and rejected option 3. Rejected option 3 would only provide coverage for some vessels in the industry and would not be as effective as the preferred alternative in improving compliance. In comparison to rejected option 2, the VMS system requirements should be specified in order to ensure that the utilized system will ensure sufficient surveillance of vessel activities. In this respect, the final rule is preferable to rejected option 2. Also, the final rule establishes a cap on the cost per vessel for purchase of the VMS unit and annual communications. Based on these facts, the final rule is superior to the alternatives considered.

The requirement for operator permits in the South Atlantic rock shrimp fishery will increase costs to owners who operate their own vessels and to individual non-owning operators. The cost of a permit is expected to be not more than $50 and would generally be incurred once every 3 years, for an approximate cost per year of $16.67. Thus, the total explicit cost imposed on all qualifiers combined in the first year would be approximately $8400. The time burden of applying for this permit is estimated to be 60 minutes. In monetary terms, this time burden equates to $8.36 per vessel operator, or $2.79 per year. As a result of this action, the annual total cost per qualifying vessel is $19.46, or $3270 for all qualifying vessels.

This burden would also be imposed on vessel operators in the open access component of the fishery (i.e., the Carolinas), which could consist of as many as 24 additional vessels. If the single, large entity eventually chose to participate in the open access component of the fishery, it would also have to incur these expenses. Since the cost is constant on a per-vessel basis, disproportional impacts would not occur. In any case, for participants in the open access component of the fishery, these costs are unlikely to substantially reduce profitability.

The final rule will result in higher costs than the no action option (rejected option 1) since it would require an operator's permit, estimated to cost $50 per operator, that would be valid for 3 years. The Council's Rock Shrimp Advisory Panel recommended operator permits to assist in reducing the cost of penalties to the industry from federal fishery management violations. It is expected that an operator's permit requirement will improve compliance with fisheries management regulations. Even though rejected option 2, which only requires an operator's permit for captains who do not own the vessel they operate, would result in a lower cost to the industry, it would not eliminate the possibility that a vessel owner who had a vessel permit sanction for a federal fishery violation could obtain an operator's permit and work onboard another rock shrimp vessel. Thus, the final rule is preferable to the rejected alternatives.

Overall, the total costs of these actions on active, non-qualifying vessels could be as high or higher than $1450 per vessel, or $160,950 in the aggregate, in the short-term. Depending on circumstances, these vessels may or may not mitigate these losses by participating in other fisheries.

For the vessel owners who qualify for a limited access permit, the total annual costs of these actions could be as high as $2238 per vessel in the first year, and $1831 thereafter. Given that active vessels expected to qualify for a limited access permit earned between $31,902 and $127,319 in gross revenues per year from the rock shrimp fishery, such costs could represent between 1.8 percent and 7.0 percent of these revenues in the first year, and between 1.4 percent and 5.7 percent in years thereafter. Depending on the profit margins associated with activity in this fishery, these losses could be considered substantial, at least for some of the affected small entities. However, it is expected that future gains in the fishery would offset the short-term costs to these small entities. The Council's industry representatives (Rock Shrimp Advisory Panel) recommended that the Council consider a limited access program to avoid a situation where the current overcapacity problem, the primary source of which is the large number of latent permits, is exacerbated and thus increases the risk that firms dependent on rock shrimp could be forced out of the fishery or out of business. The Rock Shrimp Advisory Panel requested operator's permits to protect their interests since many owners do not operate their own vessels, and this measure would allow them to hire captains who are likely to be more compliant with fishery regulations. Vessel owners are also liable for any fishery violations even if they are not on board the vessel during the period when the infraction occurs; however, this is true regardless of operator permits. There have been a number of instances of illegal fishing in an important closed fishing area, the Oculina Bank HAPC, by vessels in the rock shrimp fishery. Given the dwindling law enforcement resources for patrolling these areas, which are several miles offshore, the Council recommended that vessels in this fishery be required to use an approved VMS since they regularly operate in close proximity to the Oculina Bank HAPC. There is a critical need to implement this measure for increased protection of the Oculina coral habitat. A recently completed research survey concluded that this area contains the last 20 acres (8 hectares) of intact Oculina coral remaining in the world. To the extent enforcement is increased and trawling in the Oculina Bank HAPC is eliminated, there will be corresponding benefits in terms of protecting Oculina coral, habitat, and juvenile rock shrimp.

Copies of the FRFA are available upon request (see ADDRESSES ).

The Council prepared a final supplemental environmental impact statement (FEIS) for Amendment 5; a notice of availability was published on September 6, 2002 (67 FR 57007). The FEIS concludes that Amendment 5 will result in positive environmental impacts by reducing excess harvesting capacity in the fishery via the limited access program, reducing bycatch (including bycatch of undersized, unmarketable rock shrimp) via mesh size restrictions, and enhancing compliance with all management measures (including protection of the essential fish habitat and Oculina coral) via requirements for VMS and operator permits.

This final rule contains new collection-of-information requirements subject to the Paperwork Reduction Act (PRA)--namely, application for a limited access endorsement for the South Atlantic rock shrimp fishery, documentation of eligibility through a written agreement, transfer of a limited access endorsement, installation and operation of a VMS by a vessel that has been issued a limited access endorsement, and application for an operator permit for the South Atlantic rock shrimp fishery in the EEZ off the southern Atlantic states (North Carolina through the east coast of Florida). These collection-of-information requirements have been approved by OMB, OMB control number 0648-0205. The average public reporting burdens are estimated as follows: For the limited access endorsement, 20 minutes for each application for the endorsement or for the transfer of an endorsement, 1 hour for documentation of eligibility submitted with the application, 2 hours for each request for reconsideration of the RA's determination regarding initial endorsement eligibility, and 5 minutes for each request to be placed on the list of owners desiring consideration for reissue of an endorsement that had not been renewed; for the VMS, 4 hours per installation, 15 minutes for completion and submission of the statement certifying compliance with the installation and activation checklist, 14 minutes per day at sea for transmittal of position reports, and 2 hours for annual maintenance; and for the operator permit, 60 minutes for each application.

The estimates of public reporting burdens for these collections of information include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspects of the collections of information to NMFS and OMB (see ADDRESSES ).

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.

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 May 9, 2000 (administrative record no. KY-1473), Kentucky submitted a proposed amendment to its approved permanent regulatory program. Three house bills were included in the submission. House Bill (HB) 502 continues in effect the current administrative regulations on ownership and control. HB 599 creates a new section of KRS Chapter 350 and pertains to an easement of necessity. HB 792 amends KRS 350.445(3) and is the subject of this rule. We previously announced our decisions on HB 502 and 599 in the April 30, 2002 Federal Register (67 FR 21173), and the June 20, 2001 Federal Register (66 FR 33020), respectively.

We announced receipt of the proposed amendment in the May 31, 2000, Federal Register (65 FR 34625), invited public comment, and provided an opportunity for a public hearing on the adequacy of the proposed amendment. The public comment period closed on June 30, 2000.

By letter dated July 10, 2002, (administrative record no. KY-1547), Kentucky submitted additional explanatory information in response to our letter dated February 13, 2002. Because the information merely clarified certain provisions of the proposed amendment, we did not reopen the comment period.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. For the reasons described below, we are approving the amendment, with an exception. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes.

House Bill 792, Subsection(3), amends KRS 350.445(3)—Steep Slopes. It allows disturbance of the land above the highwall for the construction of a permanent road only if the permittee affirmatively demonstrates, and the Natural Resources and Environmental Protection Cabinet (Cabinet) makes a detailed written determination, that the proposed disturbance facilitates compliance with KRS Chapter 350, and it requires that the land disturbed be limited to that amount necessary to facilitate compliance. The Cabinet determination must be made upon the permittee demonstration that certain, specific requirements will be met. These requirements are contained in KRS 350.445(3)(a) through (j). For example, the permittee must completely eliminate the production highwall and backfill the mined areas to approximate original contour with no road remaining on the bench. In addition to the specified requirements, the permittee must meet all other performance standards of this chapter.

Section 515(d)(3) of SMCRA allows disturbances above the highwall if the disturbances will facilitate compliance with the environmental protection (performance) standards of Section 515. In addition, the disturbances “shall be limited to that amount necessary to facilitate * * * compliance” with Section 515.30 U.S.C. 1265(d)(3).

Kentucky requires compliance with KRS Chapter 350. In its letter dated July 10, 2002, Kentucky clarified that KRS 350 includes both application requirements and performance standards. However, Kentucky stated that the demonstrations required of the permittee are directed towards, and would facilitate compliance with, performance standards. Kentucky further explained how constructing roads above highwalls would facilitate that compliance by stating, “permanent roads constructed above the highwall result in a more stable mine backfill configuration than the steeper backfill required with an on-bench road at the toe of the backfill. Further, the disturbance of the area above the highwall, in creating the road cut, results in smaller volumes of excess spoil than would placement of an on-bench road at the base of the backfill resulting in a reduction of spoil materials placed in off-bench hollow fills and associated stream loss.”

Additionally, the backfilling and grading plan must incorporate a narrative, applicable specifications (plan, profile and section drawings), and volumetric calculations sufficient for the Cabinet to make an affirmative finding. The reclamation plan will be based on the construction requirements for a permanent road. No road embankments would exist. The roadbed would be surfaced with durable rock or cut to a solid rock surface. That section of the exposed road cut constructed in soils materials and the undisturbed natural barrier would be revegetated in accordance with the approved plan. The roadway width in the approved plan must be designed to be appropriate for the amount of traffic and for the equipment to manage the approved postmining land use. Evaluation of the postmining land use would be based on the level of management and road specifications (volume of traffic, size and weight of vehicles, and periodic/daily use required by the landowner). The roads will connect with other roads and must support the approved postmining land use. The Cabinet will make a written determination upon a demonstration by the permittee that the requirements of KRS 350.445 (3) (a-j) are met. Kentucky also affirmed that it retains discretion to ultimately approve or disapprove a permittee's request to construct a permanent road above a highwall.

Because the Kentucky amendment contains provisions that are substantively identical to those contained in section 515(d)(3) of SMCRA, and also imposes additional requirements for roads constructed above highwalls, we find that the proposed Kentucky amendment is no less stringent than section 515(d)(3) of SMCRA and can be approved, with one exception. Section (3)(g) requires that the road be constructed to a size and design appropriate to support coal mining activities and the proposed postmining land use. Allowing roads above highwalls “to support coal mining activities” is inconsistent with, and therefore less stringent than, section 515(d)(3) of SMCRA, which allows disturbances above highwalls only where the disturbances will facilitate compliance with environmental protection performance standards, and not where they will facilitate mining itself. For this reason, the phrase “to support coal mining activities and” cannot be approved.

We asked for public comments on the amendment (administrative record no. KY-1494), and received two pertaining to HB 792. Because no one requested an opportunity to speak at a public hearing, none was held. By letter dated June 14, 2000 (administrative record no. KY-1480), the Kentucky Coal Association expressed its full support of HB 792. By electronic mail on July 5, 2000 (administrative record no. KY-1484), the Kentucky Resources Council, Inc. (KRC) expressed concern that to the extent that HB 792 eliminates Kentucky's discretion to approve or disapprove a proposed above-highwall disturbance and to mandate that it accepts as “facilitating compliance” any mine plan which proposes a permanent road above the top of a highwall, the provision would be inconsistent with Federal law. The KRC acknowledged that under certain configurations where a road above the highwall is constructed in lieu of a permanent mine bench road, that less spoil disposal in valley fills is necessary. It contends, however, that widespread abuse has occurred and safeguards must therefore be instituted. Kentucky must also retain discretion to determine whether the road approval will facilitate environmental compliance and meet all other performance standards. The KRC emphasized that only under narrowly drawn circumstances, with Kentucky retaining discretion to approve or disapprove the roads, can the proposed amendment be considered consistent with Federal law.

We acknowledge the KRC's concerns. We refer to Kentucky's letter dated July 10, 2002, discussed in the finding above, in which Kentucky affirms that the land above a highwall may be disturbed for the construction of a permanent road only when the applicant affirmatively demonstrates, and Kentucky makes a written determination that the proposed disturbances facilitate compliance with both application requirements and performance standards. Kentucky further affirms that it will retain full discretion to approve or disapprove a permittee's request and will monitor compliance with an approved backfilling and grading plan through routine inspections. We feel Kentucky has demonstrated that by retaining discretion and by instituting necessary safeguards, that the provisions of the proposed amendment can be implemented in a manner consistent with the provisions of SMCRA.

The KRC also commented that the roads above highwalls must be constructed to an appropriate size and design standard, and must be part of the approved postmining land uses. In response, we note that these specific demonstrations are required at KRS 350.445(3)(g). The KRC also commented that the proposed mine plan and road construction sequencing in relation to the mining activity must be designed to maximize permanent retention of mined spoil on the mine bench. In response, we note that KRS 350.445(3)(h) requires these demonstrations. Finally, the KRC commented that the proposed mine plan must include removal of the bench road and restoration of the approximate original contour of the mined area, with no permanent road left on the mine bench. In response, we note that KRS 350.445(3)(a) requires this demonstration.

According to 30 CFR 732.17(h)(11)(i), we solicited comments on the proposed amendment submitted on May 9, 2000, from various Federal agencies with an actual or potential interest in the Kentucky program. None were received.

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the written concurrence of the EPA with respect to those provisions of the proposed program amendment that relate to air or water quality standards promulgated 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 provisions in this amendment pertain to clean water or clean air standards. Therefore, we did not ask EPA to concur on the amendment.

Based on the above findings, we approve the proposed amendment as submitted by Kentucky on May 9, 2000, with the exception noted in section III.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 917 which codify decisions concerning the Kentucky 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 Kentucky's program demonstrate that it 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.

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 to 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 Kentucky program, we will recognize only the statutes, rules, and other materials approved by the Secretary or us, 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. Hence, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. 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.

I. Background on the Kentucky Program II. OSM's Findings III. Summary and Disposition of Comments IV. Procedural Determinations I. Background on the Kentucky 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 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.

During the course of implementing SMCRA, we occasionally issue new regulations. As a result, States may have to amend their approved programs in order to be consistent with the new Federal regulations. In addition, States may submit proposed amendments to their approved programs on their own initiative. In either event, we must determine whether the amendment submitted by the State meets the requirements of SMCRA. When it does, the amendment is approved and when it does not, it is not approved and the State may be instructed to further amend its program. These instructions are codified in our regulations at 30 CFR 917.16 for the Kentucky program. For the reasons that follow, we are removing two such instructions to the State of Kentucky.

At 30 CFR 917.16 (c)(2), Kentucky was required to submit proposed regulations to implement the program changes contained in Senate Bill (SB) 374. SB 374 added a new section to Kentucky's statutes pertaining to the issuance of special permits for the remining of previously affected mined areas. However, SB 374 specifically prohibits its own implementation until implementing regulations are promulgated by Kentucky and approved by OSM. In addition, 30 CFR 732.17(g) prohibits states from implementing proposed amendments to their programs until OSM approves the amendments. Because Kentucky has never submitted these implementing regulations, and because OSM determined that SB 374 could not be implemented without accompanying regulations, SB 374 is not a functioning part of the approved State program. See 51 FR 26002, 26005 (July 18, 1986). For these reasons, the requirement codified at 30 CFR 917.16(c)(2) is unnecessary and the instruction should be removed. Senate Bill 374 cannot take effect, of course, until Kentucky submits implementing regulations and we approve them.

At 30 CFR 917.16(o), Kentucky was required to submit a program change to the Kentucky Revised Statutes (KRS) at 350.060 to: (1) Clarify that a person may not continue to conduct surface coal mining operations under an expired permit unless the permittee filed a complete application for renewal at least 120 days before the permit expired and the regulatory authority had not yet approved or disapproved the application when the permit expired, and (2) require the issuance of an imminent harm cessation order to any person conducting surface coal mining operations under an expired permit unless the permittee filed a complete application for renewal at least 120 days before the permit expired and the regulatory authority had not yet approved or disapproved the application when the permit expired. On September 6, 2000, we announced the preemption and supersession of KRS 350.060(16) because it was inconsistent with the requirements of SMCRA (30 CFR 917.13(c); 65 FR 53909). Because both our disapproval and subsequent supersession of the quoted provisions of the statute prevent Kentucky from implementing those provisions, and because the Kentucky program otherwise requires issuance of imminent harm cessation orders to persons conducting surface coal mining operations under expired permits, we believe that the requirements codified at 30 CFR 917.16(o) are no longer necessary and the instruction should be removed.

In the July 15, 2002, Federal Register (67 FR 46432), we asked for public comments on our proposal to remove the two instructions (administrative record no. KY 1562), but did not receive any.

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. ). Because the instructions proposed for removal did not pertain to these subjects, we did not request EPA concurrence.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the proposal from EPA (administrative record No. KY 1562). EPA did not respond to our request.

This rule is a technical amendment and does not have takings implications.

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.

This rule is a technical amendment and does not have Federalism implications.

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. ). This rule is a technical amendment that does not impose any additional requirements on small entities.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons previously stated, 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 rule is a technical amendment and 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.

The existing regulations of the Hobe Sound Bridge (SR 708), mile 996, at Hobe Sound, Martin County, Florida, published in the Federal Register [CGD07-02-104, 67 FR 55115], require the bridge to open on signal, except that from 7 a.m. to 6 p.m. the bridge will open on the hour, 20 minutes after the hour, and 40 minutes after the hour. On December 4, 2002, the Commissioners of Martin County, the drawbridge owner, requested a deviation from the current operating regulations by allowing the bridge to only open a single-leaf of the bridge to safety effect repairs. A double-leaf opening will be available with two-hour advance notice to the bridge tender.

The District Commander has granted a temporary deviation from the operating requirements listed in CGD07-02-104, 67 FR 55115 to complete repairs to the bridge. Under this deviation, the Hobe Sound Bridge (SR 708) need open only a single-leaf on the hour, 20 minutes after the hour, and 40 minutes after the hour from 7 a.m. to 6 p.m. on January 15, 2002 and January 16, 2002. A double-leaf opening will be provided with a two-hour advance notice to the bridge tender.

We did not publish a notice of proposed rulemaking (NPRM) for this temporary regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. Upon request by the Navy, immediate action is necessary to ensure the safety and security of naval vessels moored at Naval Station Norfolk during large merchant vessel transits of the Elizabeth River. Due to their large size and substantial momentum while underway, these merchant vessels pose a potential threat to Naval Station Norfolk's security. Imposing this speed limit will improve security alongside Naval Station Norfolk as well as reduce the potential threat. 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 . Delaying the effective date of the rule would be contrary to the public interest, as immediate action is necessary to ensure the safety and security of naval vessels during large merchant vessel transits of the Elizabeth River.

The Commander Naval Station Norfolk requested this rule to reduce the potential threat to national security that may be posed by vessels of 300 gross tons or greater as they pass the naval station. This temporary modification of the regulated navigation area (RNA) is necessary to ensure the safety and security of naval vessels in the vicinity of Naval Station Norfolk. The U.S. Navy or other federal agencies may assist the U.S. Coast Guard in the enforcement of this rule.

No vessel of 300 gross tons or greater may proceed at a speed over eight knots between Elizabeth River Channel Lighted Gong Buoy 5 (LL 9470) of Norfolk Harbor Reach and gated Elizabeth River Channel Lighted Buoys 17 (LL 9595) and 18 (LL 9600) of Craney Island Reach. All vessels less than 300 gross tons are exempt from this rule, as well as all Public vessels as defined in 33 U.S.C. 1321, which states that a public vessel means a vessel owned or bareboat chartered and operated by the United States, or by a State or political subdivision thereof, or by a foreign nation, except when such vessel is engaged in commerce.

This temporary 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 temporary final rule will be in effect for less than nine months. During this period, it is estimated to affect 3988 vessel transits. However, the speed limit restrictions are only in effect for less than four miles, and typical vessel speed is 10 knots. Therefore, any delay caused by the two knot reduction in speed will be minimal.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this temporary rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels 300 gross tons or greater intending to transit Norfolk Harbor Reach at speeds greater than eight knots. This regulated navigation area will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will only affect a limited portion of a vessel's total transit, and for only a length of less than four miles. Deep-draft vessels typically transit this area at approximately 10 knots, and therefore the eight-knot speed limit will not cause significant delays. Further, the rule is only in effect for nine months.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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

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

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

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

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

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

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

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

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

We have considered the environmental impact of this temporary rule and concluded that under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.lC, this temporary rule is categorically excluded from further environmental documentation. This temporary rule seeks to modify a well established Regulated Navigation Area, and will be in effect for less than nine months. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES .

This action is directed to the public in general, and in particular to anyone who may need or want to visit or submit documents to the office of the EAB. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

The EAB has relocated its office from one office building to another in downtown Washington, DC. The current physical location of the EAB is Suite 500, 607 14th Street, NW., Washington, DC. This address is referenced in the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation/Termination or Suspension of Permits (CROP), 40 CFR part 22, which provides, in pertinent part, that:

40 CFR 22.30(a). On December 9, 2002, the EAB relocated its office to Suite 600, 1341 G Street, NW. The purpose of this amendment is to delete the sentence in 40 CFR 22.30(a) which provides that “[h]and deliveries may be made at Suite 500, 607 14th Street, NW.,” and to substitute a sentence which provides that “[h]and deliveries may be made at Suite 600, 1341 G Street, NW.” The amendment will have no effect on any documents that are filed at the EAB's official mailing address, which is 1200 Pennsylvania Ave., NW.

You may obtain additional information about this action on the EAB's Internet home page at http://www.epa.gov/eab .

EPA is issuing this document under its general rulemaking authority. Reorganization Plan No. 3 of 1970 (5 U.S.C. app.). In addition, section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice of public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that this amendment is technical and non-substantive, and therefore, that there is good cause under 5 U.S.C. 553(b)(B) for making this rule final without prior proposal and opportunity for comment.

No. This final rule implements a technical amendment to 40 CFR part 22 to reflect a change in the physical location of the office of the EAB, and does not otherwise impose or amend any requirements. This action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This rule does not contain any information collection requirements that require review and approval by OMB pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Because this action is not economically significant as defined by section 3(f) of Executive Order 12866, this action is not subject to Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). Since the Agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the APA or any other statute, this action is not subject to provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandate Reform Act of 1995 (UMRA) (Pub. L. 104-94). In addition, this action does not impose any enforceable duty, contain any unfunded mandate, or impose any significant or unique impact on small governments as described in the UMRA of 1995. This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Similarly, this rule will not have substantial direct effects on tribal governments, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). This action does not involve any technical standards that require the Agency's 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). 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), because this action is not a significant regulatory action under Executive Order 12866.

Yes. The Congressional Review Act (CRA), 5 U.S.C. 801 et seq ., generally provides that, before a rule may take effect, the agency that promulgates 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. CRA section 808 provides that the issuing agency may make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. EPA has made such a good cause finding, including the reasons therefor, and has established the date of publication as the effective date. As stated previously, 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 . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

The State of Florida through the FDEP submitted revisions to Rules 62-296.412(1) and 62-296.511 of the Florida SIP on July 22, 1996. These rules were amended to update applicable requirements for perchloroethylene dry cleaners and halogenated solvent degreasing facilities. The amendments provide that dry cleaning facilities using perchloroethylene which have not yet achieved compliance with the requirements of 40 CFR Part 63 Subpart M— National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities, would continue to be subject to the requirements of Rule 62-296.412 until compliance is achieved. Likewise, the amendments provide that degreasing facilities using halogenated solvents which have not yet achieved compliance with the requirements of 40 CFR Part 63, Subpart T,— National Emission Standards for Halogenated Solvent Cleaning, would continue to be subject to the requirements of Rule 62-296.511 until compliance is achieved. These revisions primarily affect 40 CFR Part 63— National Emission Standards for Hazardous Air Pollutants for Source Categories, however, the amendments also provide emissions reductions of volatile organic compounds (VOCs).

EPA is approving the aforementioned revisions to the Florida SIP because they are consistent with the Clean Air Act (CAA) and EPA requirements. The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective March 17, 2003, without further notice unless the Agency receives adverse comments by February 18, 2003.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on March 17, 2003, and no further action will be taken on the proposed rule.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 17, 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).)

I. Background

On May 15, 2002, (67 FR 34647), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of revised VOC control requirements for solvent cleaning operations, and the addition and amendment of definitions for terms used in the regulations for solvent cleaning operations. The formal SIP revision was submitted by the Commonwealth of Pennsylvania on February 13, 2002. Other specific requirements of Pennsylvania's SIP revision for solvent cleaning operations and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. On June 13, 2002, EPA received adverse comments on the May 15, 2002, NPR. A summary of the comments submitted and EPA's responses are provided in section II of this document.

Carpenter Technology Corporation (Carpenter) submitted adverse comments on the proposed rule to approve revised VOC control regulations for solvent cleaning operations in the Commonwealth of Pennsylvania published by EPA in the Federal Register on May 15, 2002 (67 FR 34647). A summary of those comments and EPA's responses are provided below.

Comment: Carpenter comments that the State failed to provide an opportunity for public comment on the cost/benefit analysis used to justify the rule.

Response: EPA disagrees that the Commonwealth failed to meet the public participation requirements for this SIP revision. The Clean Air Act requires that a state provide for public comment and hearing on a proposed SIP revision. In this instance, the Commonwealth's proposed SIP revision consists of the addition of the Solvent Cleaning Operations rule. After publishing notices in nine newspapers across the entire state announcing their respective dates, times and venues, public hearings were held by the Pennsylvania Environmental Quality Board (EQB) on the proposed rulemaking for the Solvent Cleaning Operations rule at the Pennsylvania Department of Environmental Protection's (PADEP) Southwestern Regional Office in Pittsburgh on September 28, 1999, at its Southeastern Regional office in Conshohocken on October 1, 1999, and on October 5, 1999, at its South Central Regional Office in Harrisburg. The notices also provided information to the public for obtaining hard copies of the proposed rulemaking from PADEP and the electronic address on its website where the proposed rulemaking could also be reviewed for comment by the public. On August 28, 1999, the EQB published the proposed rulemaking in the Pennsylvania Bulletin (29 Pa. B. 4661). In addition to the proposed rule itself, the August 28, 1999 proposed rulemaking (29 Pa. B. 4661) also includes the information as to the start and close of the public comment period; the dates, times and venues of the public hearings; and the means by which the public may provide comments on the proposed rulemaking both in writing and electronically to the EQB.

Although not required by Federal law for meeting public participation requirements for SIP revisions, Executive Order 1996-1 of the Commonwealth of Pennsylvania requires that PADEP perform a Regulatory Analysis as part of its rule adoption process. The Regulatory Analysis is to be submitted to the General Counsel, Secretary of Budget and the Governor's Policy Director. That regulatory analysis is to include a cost/benefit analysis. Executive Order 1996-1 does not require PADEP to publish the Regulatory Analysis for comment by the public. However, the August 28, 1999 Pennsylvania Bulletin proposed rulemaking states that a cost/benefit analysis was done for the proposed making and states that the Regulatory Analysis form is available to the public upon request (29 Pa. B. 4662). Moreover, as part of its SIP revision submittal, PADEP included a document entitled, “Solvent Cleaning Operations Comment and Response Document,” dated May 1, 2001. That document includes Carpenter's comments on the cost/benefit analysis of the proposed rulemaking and provides PADEP's response.

The final rulemaking published in the Pennsylvania Bulletin on December 22, 2001 (31 Pa. B. 6921), announcing the adoption of the final version of the Solvent Cleaning Operations rule includes the following finding by the Environmental Quality Board of the Commonwealth of Pennsylvania at J. Findings (2): “A public comment period was provided as required by law and all comments were considered.” (31 Pa. B. 6926, December 22, 2001).

Comment: Carpenter comments that no data analysis was presented to support the projected VOC emission reductions in the final rule.

Response: EPA is not approving a quantified amount of emission reductions from Pennsylvania's solvent cleaning rule. Nor does Pennsylvania's SIP revision submittal include a request that any amount of emission reductions be approved by EPA. Emission reductions achieved by this rule and any other rules credited by PADEP in SIP revisions submitted to satisfy any rate of progress plan or attainment demonstration plan requirements would be the subject of separate rulemakings on those plans.

Comment: Carpenter comments that the freeboard requirements for closed-top immersion cold cleaning machines will actually increase emissions, and has provided specific information as to the emission increases that would occur at its Reading, Pennsylvania facility. In its comment letter, Carpenter also provides information regarding modifications to its Reading facility which have reduced VOC emissions from 14 tons per year (tpy) to 2.5 tpy.

Response: EPA disagrees that a freeboard requirement for closed-top immersion cold cleaning machines will increase emissions. For purposes of clarification, in Pennsylvania's regulation, an immersion cold cleaning machine refers to a cold cleaning machine with an opening at the top (as opposed to the side or bottom) of the machine through which the parts to be immersed must pass in order to reach the solvent. An immersion cold cleaning machine may or may not be equipped with a cover or lid that would have to be raised or removed in order to pass the parts that are to be immersed through the top opening. Pennsylvania's regulation requires that all immersion cold cleaning machines, as defined above, that use two gallons or more of solvents containing greater than 5 percent VOC content by weight for the cleaning of metal parts, be equipped with a cover that shall be closed at all times except during the cleaning of parts or the addition or removal of solvent. The Pennsylvania rulemaking allows operators of affected cold cleaning machines the option of using low volatility solvents (1 mm Hg) in a machine with a freeboard ratio of 0.5 or greater. A freeboard ratio of 0.75 or greater is required only if the solvent volatility is greater than 1 mm Hg. Carpenter is correct in pointing out that an increase in freeboard ratio results in more space (volume) in which the solvent may evaporate.

However, because the solvent vapors are denser than the air in the cold cleaning machine, the solvent vapor concentration is greatest near the liquid solvent than near the opening of the cold cleaning machine. A higher freeboard ratio means that the more concentrated solvent vapor interface area will be less disturbed by air draft or air currents when the cleaner is opened or when it remains open during cleaning. When opening the cover on a cold cleaning machine, Carpenter states that solvent vapor will escape from the machine. This is true, but in machines with a higher freeboard ratio, the less concentrated solvent vapors nearest the opening are more likely to be affected by the opening and closing of the cover, than are the more concentrated solvent vapors near the liquid solvent.

In its emissions analysis, Carpenter is assuming that solvent evaporation is reaching equilibrium within the volume of the cold cleaning machine, and that this entire volume of solvent will be emitted when opening the cover on the cold cleaning machine. In actual practice, in properly operated cold cleaning machines, not all of the volume of solvent that has evaporated into the freeboard area will be emitted. An increased freeboard ratio also reduces working emission losses to the extent that it provides additional dwell space in order for the liquid solvent to drain back into the cold cleaning machine when parts are removed after having been cleaned. Therefore, EPA expects that PADEP's freeboard requirements for open-top immersion cold cleaning machines will reduce VOC emissions in the Commonwealth.

However, given the specific circumstances of Carpenter's Reading facility as described in its June 10, 2002 letter of comment to EPA, including the information regarding the switch to aqueous-based cleaning solutions, the replacement of equipment, and the costs associated with these changes which resulted in a reduction in VOC emissions from 14 tons per year (TPY) to 2.5 TPY (an 82 percent reduction), Carpenter may wish to apply to PADEP for a source-specific variance to the revised regulations. If Carpenter can provide documentation to PADEP of the information provided in its June 10, 2002 letter to EPA, and demonstrate to the Commonwealth's satisfaction that compliance with the revised regulations would indeed increase VOC emissions at its Reading facility, PADEP could issue a source-specific alternative to Carpenter and submit it to EPA for approval as a SIP revision.

EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP regarding VOC control requirements for solvent cleaning operations applicable throughout the Commonwealth.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 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 . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 17, 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, approving revisions to Pennsylvania's control of VOCs from solvent cleaning operations, may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

On April 5, 2001, EPA's revised I/M program requirements rule was published in the Federal Register (Amendments to Vehicle Inspection and Maintenance Program Requirements Incorporating the On-board Diagnostics Check; Final Rule (66 FR 18156)). The revised I/M requirements rule requires that electronic checks of the On-board Diagnostics system of applicable 1996-and-newer motor vehicles be conducted as part of states' motor vehicle I/M programs. This revised I/M requirements rule applies only to those areas required to implement an I/M program under the Clean Air Act of 1990. This rule establishes a deadline of January 1, 2002 for states to begin performing OBD checks on 1996-and-newer model OBD-equipped vehicles, and to require repairs to be performed on those vehicles with malfunctions identified by the OBD check. However, the revised I/M rule also provides several options to states to delay implementation of OBD testing, under certain circumstances, beyond the prescribed January 1, 2002 deadline. One such option provides for a one-time, 12-month extension of the deadline for states to begin conducting mandatory OBD checks (to as late as January 1, 2003) provided the state making the request can show just cause to EPA for a delay and that the revised implementation date represents “the best the state can reasonably do”.

EPA's final rule identifies factors that may serve as a possible justification for states considering making a request to EPA to delay implementation of OBD I/M program checks beyond the January 2002 deadline. Potential factors justifying such a delay request that are listed in EPA's rule include: contractual impediments, hardware or software deficiencies, data management software deficiencies, the need for additional training for the testing and repair industries, and the need for public education or outreach.

Maryland has submitted a SIP revision to formally request an extension of the OBD I/M test deadline, per EPA's I/M requirement rule. Maryland's SIP revision lists many of the same factors that are listed in EPA's I/M rule in order to justify the State's request for extension of the OBD testing deadline.

On July 9, 2002, Maryland submitted a formal revision to its SIP, which constitutes a request to delay the addition of on-board diagnostic system checks of 1996-and-newer vehicles to Maryland's adopted and SIP-approved I/M program.

Maryland's SIP revision to request delay in adding OBD testing to it I/M program list several factors that effect the State's ability to conduct OBD testing at this time. Maryland's justification for its request of a 6-month delay includes the following factors:

(1) Hardware and software issues pertaining to the transition to new hardware and testing equipment, installation of new communications network, and construction of a new data management system. Also, the time to develop a new formal acceptance testing procedures for equipment and develop quality assurance specifications and procedures for the OBD test equipment that will be incorporated into the State's ongoing assurance audit inspections of the Vehicle Emissions Inspection Program (VEIP) stations,

(2) evaluation of various programmatic options, and the design of an OBD program that will be compatible with the current VEIP program design,

(3) the need to train the contractor inspection, operational, and management personnel, so that all of these personnel have a thorough knowledge of all aspects of the final OBD program design and operation,

(4) the need for additional education and training of the vehicle repair community in the new OBD test procedures as well as the repair of OBD-failed vehicles,

(5) the need for additional outreach and public education in order to increase public acceptance of OBD testing.

EPA is granting the state of Maryland's request for a six-month extension of the OBD testing deadline, per the guidelines established by EPA in its amended Vehicle Inspection and Maintenance Program Requirements Rule, published in the April 5, 2001 edition of the Federal Register (66 FR 18156). Maryland has adequately justified a six-month extension of the January 1, 2002 Federal OBD I/M testing deadline. EPA therefore proposes to grant a six-month extension of the deadline to commence OBD testing as part of the Maryland I/M program to July 1, 2002. EPA has determined that this delayed implementation schedule represents the timeliest implementation schedule that Maryland can perform, and is “the best the state can reasonably do”.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment as EPA's I/M program requirements regulations allow the Administrator to grant such an extension request if a state provides a justification that meets the factors set forth in EPA's I/M regulations (66 FR 18156).

However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on March 17, 2003 without further notice unless EPA receives adverse comment by February 18, 2003. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

The Congressional Review Act, 5 U.S.C. 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 . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action to extend the deadline for incorporation of On-board Diagnostics checks to the Maryland I/M program by six-months must be filed in the United States Court of Appeals for the appropriate circuit by March 17, 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).)

Throughout this document, the terms “you” refer to the reader of this proposed rule and/or to sources subject to the State rule, and the terms “we”, “us”, or “our” refers to USEPA.

On October 27, 1998, the USEPA promulgated a regulation known as the NO X SIP Call for numerous States, including the State of Ohio. The NO X SIP Call requires the subject States to develop NO X emission control regulations sufficient to provide for a prescribed NO X emission budget in 2007.

Preceding the promulgation of USEPA's NO X SIP Call, there had been extensive discussions by Federal, State, and local environmental agencies, industry, and environmental groups regarding the transport of ozone in the eastern United States. The Environmental Council of States (ECOS) recommended the formation of a national workgroup to assess the problem and to develop a consensus approach to addressing the transport problem. As a result of ECOS' recommendation and in response to a March 2, 1995, USEPA memorandum, the Ozone Transport Assessment Group (OTAG) was formed to conduct regional ozone transport analyses and to develop a recommended ozone transport control strategy. OTAG was a partnership among USEPA, the 37 eastern States and the District of Columbia, and industrial, academic, and environmental groups. OTAG was given the responsibility of conducting the two years of analyses envisioned in the March 2, 1995, USEPA memorandum.

OTAG conducted a number of regional ozone data analyses and regional ozone modeling analyses using photochemical grid modeling. In July 1997, OTAG completed its work and made recommendations to the USEPA concerning the regional emissions reductions needed to reduce transported ozone as an obstacle to attainment in downwind areas. OTAG recommended a possible range of regional NO X emission reductions to support the control of transported ozone. Based on OTAG's recommendations and other information, USEPA issued the NO X SIP Call rule on October 27, 1998. 63 FR 57356.

In the NO X SIP Call, USEPA determined that sources and emitting activities in 23 jurisdictions  1 emit NO X in amounts that “significantly contribute” to ozone nonattainment or interfere with maintenance of the 1-hour ozone national ambient air quality standards (NAAQS) in one or more downwind areas in violation of Clean Air Act (CAA) section 110(a)(2)(D)(I)(I). USEPA identified NO X emission reductions by source sector that could be achieved using cost-effective measures and set state-wide NO X emission budgets for each affected jurisdiction for 2007 based on the possible cost-effective NO X emission reductions.

The source sectors include nonroad mobile, highway mobile, electricity generating units (EGUs), and major non-EGU stationary point sources. EGUs include stationary boilers and turbines that generate at least some electricity, even if they also generate steam for industrial processes. Non-EGUs include other large stationary boilers and turbines, typically for the purpose of generating steam for industrial processes.

USEPA established recommended NO X emissions caps for large EGUs (potentially generating more than 25 megawatts) and for large non-EGUs (minimum design heat input of 250 mmBTU per hour). USEPA determined that significant NO X reductions using cost-effective measures could be obtained as follows: Application of a 0.15 pounds NO X /mmBtu heat input emission rate limit for large EGUs; a 60 percent reduction of NO X emissions from large non-EGUs; a 30 percent reduction of NO X emissions from large cement kilns; and a 90 percent reduction of NO X emissions from large stationary internal combustion engines. The 2007 state-wide NO X emission budgets established by jurisdiction were based, in part, by assuming these levels of NO X emission controls coupled with NO X emissions projected by source sector to 2007.

Although the state-wide NO X emission budgets were based on the levels of reduction achievable through cost-effective emission control measures, the NO X SIP Call allows each State to determine what measures it will choose to meet the state-wide NO X emission budgets. It does not require the States to adopt the specific NO X emission rates assumed by the USEPA in establishing the NO X emission budgets. The NO X SIP Call merely requires States to submit SIPs, which, when implemented, will require controls that meet the NO X state-wide emission budget. The NO X SIP Call encourages the States to adopt a NO X cap and trade program for large EGUs and large non-EGUs as a cost-effective strategy and provides an interstate NO X trading program that the USEPA will administer for the States. If States choose to participate in the national trading program, the States must submit SIPs that conform to the trading program requirements in the NO X SIP Call.

The State of Ohio has the primary responsibility under the Clean Air Act for ensuring that Ohio meets the ozone air quality standards and is required to submit a SIP that specifies emission limitations, control measures, and other measures necessary for meeting the NO X emissions budget. The SIP for ozone must meet the ozone transport SIP Call requirements, must be adopted pursuant to notice and comment rulemaking, and must be submitted to the USEPA for approval.

These NO X emission reductions will address ozone transport in the area of the country primarily east of the Mississippi River. USEPA promulgated the NO X SIP Call pursuant to the requirements of CAA section 110(a)(2)(D) and our authority under CAA section 110(k). Section 110(a)(2)(D) applies to all SIPs for each pollutant covered by a NAAQS and for all areas regardless of their attainment designation. It requires a SIP to contain adequate provisions that prohibit any source or type of source or other types of emissions within a State from emitting any air pollutants in amounts which will contribute significantly to nonattainment in, or interfere with maintenance of attainment of a standard by any other State with respect to any NAAQS.

Pursuant to its authority under section 110(k)(5), USEPA concluded that the SIPs for Ohio and other states were substantially inadequate to prohibit NO X emissions that significantly contribute to ozone nonattainment. As a result, Ohio was required to submit SIP revisions that addressed this inadequacy.

USEPA has published a model rule for control of NO X emissions from boilers and turbines. This model rule, codified at title 40 of the Code of Federal Regulations part 96 (40 CFR part 96), reflects USEPA's recommendations for the general design of the necessary NO X emission control programs as well as detailed recommendations for specific program features. Similarly, at 63 FR 56393 (October 21, 1998), USEPA has published a proposed Federal implementation plan including rules regulating cement kilns, which serve as sample rules for this source type. USEPA recommends the cost-effective levels of control noted above. The budget that USEPA established for states reflects these control levels. USEPA further recommends that states take the necessary steps to allow their sources to participate in a multi-state NO X emissions trading program that USEPA will run. While USEPA offers flexibility to states on various elements of program design, particularly in the distribution of projected emission reductions, USEPA can offer more streamlined approval of programs that more closely follow USEPA's model rule. ( See 63 FR 57365)

When the USEPA published the NO X SIP Call on October 27, 1998, a number of States and industry groups filed petitions challenging the rulemaking before the United States Court of Appeals for the District of Columbia. The court, on May 25, 1999, stayed the States' obligation to submit SIPs in response to the NO X SIP Call rule. Subsequently, on March 3, 2000, the court upheld most of USEPA's NO X SIP Call rule. The court, however, vacated the rule as it applied to Missouri and Georgia, and remanded for further consideration the inclusion of portions of Missouri and Georgia in the rule. The court also vacated the rule as it applied to Wisconsin because the court believed that USEPA had not made a showing that sources in Wisconsin significantly contributed to nonattainment or interfered with maintenance of the ozone NAAQS in any other State. Finally, the court remanded to USEPA two issues concerning a limited portion of the NO X emission budgets. See Michigan et al. v. EPA, 213 F.3d 663 (D.C. Cir. 2000). On April 11, 2000, based on the remanded issues, USEPA initiated a two phase approach to implement the NO X SIP Call. Phase I of this approach addressed the portion of the NO X SIP Call upheld by the court. Phase I will achieve the majority of the reductions in the NO X SIP Call. The Phase I plan was due from Ohio on October 30, 2000.

Phase II will address the few narrow issues that the DC Circuit court remanded to USEPA, including: Whether, and if so, how, a small subclass of facilities that generate electricity should be included in the rule; and what control levels should be assumed for large, stationary internal combustion engines. Phase II of the NO X SIP Call will not require a submittal from the States until USEPA has proposed and finalized rules in response to the court's remand.

On June 22, 2000, the court removed the stay of the state's obligation to submit SIPs in response to the NO X SIP Call and denied petitioner's motions for rehearing and rehearing en banc . In removing the stay, the court provided that USEPA should allow 128 days for States to submit SIPs to the USEPA, i.e. , by October 30, 2000. Shortly after removing the stay, petitioners requested that the court adjust the NO X SIP Call compliance date. In an action related to Michigan v. EPA, 213 F.3d 663 (D.C. Cir 2000) the court then determined that the compliance date for the SIP Call would be May 31, 2004. Although the court's action affected only the compliance deadline, other dates in the rule for related requirements (such as flow control) were also extended because they were established relative to the original compliance deadline.

Ohio EPA submitted the NO X plan on July 11, 2002. USEPA had an opportunity to review and comment on earlier draft versions of the rules during the stakeholder review process. USEPA made both formal and informal comments, and these comments are available in the Docket. The plan was submitted in sufficient time for the USEPA to make a finding of completeness, which terminated the imposition of sanctions which were scheduled to go into effect on July 25, 2002, due to Ohio's failure to submit a plan. The Region 5 Regional Administrator signed the completeness finding on July 24, 2002. ( See 67 FR 50600)

The Ohio EPA plan includes the following documents: (1) A letter from the Director of Ohio EPA requesting a revision to the Ohio EPA plan; (2) a copy of the rules containing the provisions and requirements to implement a NO X budget trading program to control and reduce emissions of NO X in Ohio; (3) a copy of the Ohio code indicating the authority of the Ohio EPA Director to develop and submit the revision; (4) a notice of the proposed rulemaking and public hearing; (5) a transcript of the public hearing on the rules containing comments and testimony; (6) the Ohio Director's Findings and Orders announcing the adoption of rules controlling NO X from sources in Ohio; (7) a list of Ohio's “interested parties” or stakeholders to whom draft rules were distributed for comment; (8) summary of comments submitted into Ohio's formal hearing record regarding the proposed rules which establish a NO X budget trading program in Ohio; and, (9) Ohio's budget demonstration including a list of units (operating or under construction) subject to the State's NO X rules.

Ohio's NO X plan and rules apply to, and establish, a trading program for EGUs, non-EGUs, and portland cement kilns. The rules contained in chapter 3745-14, establish the provisions and requirements to implement a NO X budget trading program in Ohio. The net effect of the rules is to cap emissions from major emitters and provide allowances to units to operate within the State's budget during the control period. Allowance allocations are made for five year periods with the exception of the first period, which is for a four-year period.

The State's market-based program which follows the model NO X budget trading rule is the method selected by Ohio to meet its NO X emissions reduction obligations under the NO X SIP Call. The trading program caps total emissions in order to ensure that emissions reductions are achieved and maintained. Also, the flexibility in the State's program allows sources to reduce emissions and where possible, and if desired, generate allowances for trading.

The Ohio EPA plan includes Ohio rule 3745-14. This trading rule contains eleven separate rule elements, listed in Table 1, which correspond with part 96 model rule of the NO X SIP Call.

Ohio's plan includes opportunities for sources to obtain, beginning in 2006, an allocation for energy efficiency/ renewable energy projects. The Ohio rule contains a provision which sets aside one percent of the tons of NO X emissions in the State trading budget. This set-aside is for units that during the control period reduce end-use demand for electricity or displace electrical energy utilization by use of wind power, solar power, biomass or landfill methane gas generation.

Ohio's plan also sets aside one percent of the trading budget beginning in 2006 for innovative technology projects. This means that an industry can compete for a set-aside, using stationary or mobile source technology which has not yet been adequately demonstrated in practice but where there is a likelihood that the technology will reduce NO X emissions and increase energy efficiency.

Yes, on July 11, 2002, Ohio submitted a plan containing rules in OAC Chapter 3745-14 to respond to USEPA's NO X SIP Call published in the Federal Register on October 27, 1998. We reviewed the plan and found it complete on July 23, 2002. ( See 67 FR 50600, dated August 5, 2002)

USEPA's NO X SIP Call affected sources of oxides of nitrogen (NO X ) in 22 states (including Ohio) and the District of Columbia. The NO X SIP Call rulemaking established statewide budgets for NO X emissions beginning in the 2003 ozone season (May 1 to September 30). Each state was required to submit a State Implementation Plan (SIP) containing rules necessary to reduce NO X emissions to the NO X budget levels.

On March 2, 2000, USEPA published a final rule amending state NO X budgets (65 FR 11222). Ohio used the information from this final rule to develop its budget. Further, Ohio describes the process it used to develop the budget in the budget demonstration contained in its plan submittal. A summary of the base and budget NO X emissions contained in this rule for Ohio are provided in table 2.

On November 15, 2000, Ohio informally provided draft rules for preliminary review to stakeholders and USEPA to start the rulemaking process. Ohio received comments on these draft rules from USEPA and 22 other interested parties. Ohio's draft rules were revised to take into account the comments received, and the revised draft rules were distributed to interested parties on November 19, 2001. Ohio EPA, again, received comments on these draft rules from USEPA and 38 other interested parties. The rules, to be submitted to Ohio's Joint Committee for Administrative Rule Review (JCARR), were revised again taking into consideration the comments. Ohio believes that these rules will achieve the NO X reductions required by USEPA's NO X SIP Call, and has finalized them for inclusion in its submitted NO X plan.

The budget projections used to prepare Ohio's submission are the same as the State budget established by USEPA in the final rule published in the Federal Register on March 2, 2000 (65 FR 11222). A minor change was made by Ohio EPA and is addressed in the State's submittal. This change corresponds with a technical correction to the Ohio inventory made by USEPA on October 31, 2001 (66 FR 54992).

Ohio's budgets for Area Sources, Mobile Sources and Non-Mobile sources reflect emissions during the ozone control period from May 1 through September 30 for each year. The original USEPA budgets that Ohio used in it's analysis can be found on the electronic file entitled “OH.zip” on USEPA's web site ftp://ftp.epa.gov/EmisInventory/NO X SIPCall_Mar2_2000. Ohio submitted similar budgets for area, mobile and non-mobile source categories on a compact disk (CD) along with the Budget Demonstration. The CD is available in the Region 5 Docket. Table 3 identifies the 2007 base budgets for these sources and the name of the attached file in which they are found. No NO X reductions from these source categories (mobile, area, and non-mobile) are projected for Ohio's budget demonstration. Furthermore, Ohio does not expect to have to develop additional NO X emission reduction measures to meet the statewide budget during the 5-month ozone season.

Table 4 contains the base and final NO X budget for EGUs. Ohio obtained these data from USEPA Clean Air Markets Division. The file was not part of the technical amendment to the NO X SIP Call of March 2, 2000 ( see 65 FR 11222). The files for EGUs on USEPA's Web site “ ftp://ftp.epa.gov/EmisInventory/NOX SIPCall_Mar2_2000 ” did not contain 2007 base or budget numbers. This file contains information which includes the base and final budgets for EGUs. Ohio submitted this file (along with other files referenced here) on a CD with the Budget Demonstration. The CD is available in the Region 5 Docket.

Table 5 contains the original budget that USEPA calculated for large industrial boilers (non-EGUs) located in Ohio. The information in Table 5 can be found on USEPA's web-site at “ ftp://ftp.epa.gov/ EmisInventory /NO X SIPCall_Mar2_2000,” in the file entitled “OH_pt.wb3.” USEPA modified the original non-EGU budget because on October 31, 2001, we made a determination (66 FR 54992) that Marathon Ashland Petroleum LLC's Plant 1576000301, emissions unit B015 was not a NO X budget unit. USEPA's original non-EGU budget was modified to remove 18 NO X allowances initially designated for B015 and to add 36 tons of uncontrolled NO X emissions from B015 to the total budget for this source category. The budget submitted by Ohio EPA reflects these changes and the electronic file reflecting these changes is located on the CD submitted by Ohio in the file entitled “NonEGU Adjusted.wb3.”

The information in Table 6, presents the components of Ohio's NO X budget for EGUs and non-EGUs.

USEPA believes the Ohio NO X sources addressed here, which includes a cap and an allowance trading program, will be adequately controlled to ensure the sources in the State will meet the statewide NO X budget established by USEPA.

The Director of the Ohio Environmental Protection Agency “* * * may conduct public hearings on any plans for the prevention, control, and abatement of air pollution that the director is required to submit to the federal government.” (Ohio Revised Code chapter 3704.03, Powers of the director of environmental protections.) Ohio's Director held several meetings early on in the rule development process, shortly after the USEPA promulgated the Finding of Significant Contribution and Rulemaking for the Purpose of Reducing Regional Transportation of Ozone Rule ( see 63 FR 57356, dated October 27, 1998). During the course of development, Ohio sent draft rules to stakeholders for review and comment. This process was repeated several times until the State was satisfied it had fulfilled the public process. Stakeholders included affected utilities, major heavy industry, environmental groups (both local and national), consultants, industry and manufacturing associations, planning commissions and councils of government, and one university.

Finally, a public hearing was held in Columbus, Ohio, on April 11, 2002, and Ohio accepted written comments until April 26, 2002. The transcript of the public hearing is included as part of the State's submittal and can be found in the Docket at Region 5.

USEPA used the final NO X SIP Call rule at 40 CFR part 96 for review of portions of the Ohio submittal. We also used 40 CFR 51.121 and 51.122 to evaluate Ohio's rules and the plan. The Ohio rules also apply to portland cement kilns. For USEPA's current position on these types of sources the public can consult USEPA's proposed part 98, dated October 21, 1998 ( see 63 FR 56394), which USEPA expects to finalize shortly.

USEPA is satisfied that the Ohio plan meets the requirements of the NO X SIP Call. Ohio's rules are patterned directly from the USEPA model rule and Ohio EPA included in the rules all of the requirements needed for approval by USEPA. The plan includes a budget trading program, and addresses all of the components of the emissions budget listed in the USEPA technical amendment. Ohio's analysis indicates that additional NO X control strategies will not be necessary to meet the NO X budget for the State. USEPA has previously determined, on August 5, 2002 (67 FR 50600), that Ohio had satisfied the requirements for submittal of a complete plan to address NO X controls on major sources of emission.

USEPA found a small deficiency in Ohio's submittal regarding the trigger date for flow control. In reviewing Ohio's July 11, 2002, NO X SIP Call submittal, USEPA found that the State's rule triggers flow control in 2006. ( See OAC chapter 3745-14-06(E)(6)) The NO X SIP Call model rule requires flow control to be triggered in the second year of the program. This means Ohio's rule should require flow control to be triggered in 2005. Flow control is a mechanism to limit the excessive use of banked allowances. It is more of an insurance policy, rather than a provision that is routinely expected to be carried out. Furthermore, we do not believe it is appropriate to delay implementation of flow control beyond 2005.

Ohio used the model rule (63 FR 57356, dated October 27, 1998) to develop its plan. The State also used language from elements of the section 126 rule (65 FR 2674, dated January 18, 2000) in place of some of the language from the model rule. An amendment to the section 126 rule dated April 30, 2002, ( see 67 FR 21522) extended the flow control date to 2006. This one year extension corresponds to the extension of the compliance date noted earlier. While the extension by one year of flow control to 2006 is appropriate for section 126, it is not appropriate for Ohio's rule in the NO X SIP Call. A detailed discussion regarding the difference in the trigger dates for flow control between section 126 program and the NO X SIP Call can be found in 65 FR 2674, dated January 18, 2000. We do not expect there will be any States subject to section 126. All affected States are expected to implement an NO X SIP Call plan by the compliance date of May 2004. In order for flow control to be universally applied to all sources in the NO X SIP Call region, the flow control trigger date must be the same for all of the States in the ozone transport region.

USEPA believes the 2006 date in the Ohio rule is a deficiency which can be cured by Ohio via the submittal of a State rule to revise the flow control date at the soonest possible time before the NO X compliance date.

USEPA also found a deficiency in OAC chapter 3745-14-09(G)(7) entitled NO X Budget Opt-in Units. The Ohio rule states that opt-in units that have withdrawn from the program can reapply for a permit after 2 years. A previous version of the Ohio rule had this time period as 4 years, which is the time period found in both the NO X SIP Call model rule and the section 126 rule. The purpose of the 4 year period in the model rule is to discourage these opt-in sources from coming in and out of the budget trading program at a frequency that would be disruptive to the operation of the trading program. USEPA recommends Ohio change this time period from 2 years to 4 years.

We are approving, in this direct final rule, the Ohio NO X SIP because it meets the requirements of the USEPA NO X trading program by meeting Ohio's NO X budget. Ohio's rule mirrors the USEPA model rule for the NO X SIP Call and the State adequately responded to all of the concerns of stakeholders during the public process. Ohio's plan is approved with the understanding that it will take action to change the date (the flow control trigger date) in OAC 3745-14-06(E) (6) from 2006 to 2005. If this date is not changed from 2006 to 2005, and Ohio fails to submit the change as a revision to its plan by May 31, 2004, USEPA will remove the approval of Ohio's NO X SIP and take subsequent rulemaking action, as necessary. USEPA is publishing this action without prior proposal because we view this as a noncontroversial revision and we anticipate no adverse comments. However, in a separate document in this Federal Register publication, USEPA is proposing to approve the State's NO X plan should adverse written comments be filed. This action will be effective without further notice unless USEPA receives relevant adverse written comment by February 18, 2003. Should USEPA receive such comments, we will publish a final rule informing the public that this action will not take effect. Any parties interested in commenting on this action should do so at this time. If no comments are received, the public is advised that this action will be effective on March 17, 2003.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have 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), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, USEPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for USEPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, USEPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. USEPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. section 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. USEPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. section 804(2). This rule will be effective February 18, 2003.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 17, 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).)

On November 15, 1990, Congress amended the Clean Air Act to require, among other things, revisions to State implementation plans (SIPs) to attain and maintain the National Ambient Air Quality Standards (NAAQS) in areas which violate those standards (nonattainment areas), including revisions to title I, part D new source review (NSR). IDEQ amended its part D NSR rules on April 8, 1994, and submitted them to EPA on May 17, 1994, as a revision to the Idaho SIP.

Idaho also revised provisions of its SIP to facilitate and improve the relationship between the Idaho SIP and its regulations implementing the operating permit program under title V of the Act. In addition, since EPA last approved the Idaho SIP in 1993, Idaho has revised nearly every section of its air quality rules to some degree. Many of these amendments have been editorial and are renumberings, changes to citations for cross-referenced rules or statutes, changes in terminology, or grammatical corrections. Finally, during the 2000 legislative session, the Idaho Division of Environmental Quality became a separate department rather than a division of the Idaho Department of Health and Welfare, which remained a separate department. See Idaho Code sections 39-102A and 39-104. At the same time, IDEQ was given the SIP authorities previously held by the Department of Health and Welfare. See Idaho Code sections 39-108 to 39-118D. As a result, Idaho has renumbered and recodified all of its air quality regulations in a new IDAPA Chapter 58. IDEQ submitted these various revisions to its rules for air pollution sources to EPA on May 17, 1994, May 11, 1995, November 21, 1996, February 28, 1997, December 18, 1997, April 9, 1998, May 5, 1999, December 5, 2000, and May 30, 2002, as revisions to the Idaho SIP.

On August 13, 2002, EPA solicited public comment on a proposal to approve all of the revisions submitted by IDEQ, except identified provisions on which EPA proposed to take no action. 1 EPA also requested public comment on its proposal to delete the TSP area designations for Idaho in 40 CFR 81.313 and to adjust the PM-10 area designations in 40 CFR 81.313. See 67 FR 52666 (August 13, 2002).

EPA received two comment letters in response to the proposal, one which was submitted by IDEQ. IDEQ expressed support for EPA's proposed action, but did identify some concerns. The other commenter, J.R. Simplot Company (Simplot), raised a concern with the provisions in the Idaho SIP for the control of sulfur oxides in the Eastern Idaho Interstate Air Quality Control Region. The following is a summary of the issues raised by the commenters, along with EPA's response to those issues.

Comment 1: IDEQ commented that, in the notice acknowledging consistency with the Clean Air Act, EPA proposed to conditionally approve IDAPA 58.01.01.213. The proposed condition was that IDEQ submit within 5 days of issuance all written approvals, draft permits, and final permits. IDEQ noted that draft and final permits are at this time submitted by IDEQ to EPA and that IDEQ will submit to EPA on issuance copies of any pre-permit construction approval letters issued under IDAPA 58.01.01.213. IDEQ further asserted that a conditional approval is inappropriate from an administrative and legal standpoint.

Response 1: IDEQ is mistaken as to the type of action EPA proposed. EPA did not propose conditional approval under section 110(k)(4) of the Act, which could result in the SIP approval converting to a disapproval if the conditions are not met. Rather, EPA proposed approval of IDAPA 58.01.01.213 under section 110(k)(3) of the Act, based on the understanding that Idaho will provide EPA with copies of approvals issued under that provision, as they do in the case of all new source review permits, so that EPA can carry out its obligations to oversee SIP implementation, provide the public with copies of the SIP requirements for any source when requested, and enforce the SIP requirements if a source begins actual construction without having received the necessary approval from IDEQ.

Comment 2: IDEQ commented that IDAPA 58.01.01.220.01.a.iii requires sources that are not specifically listed as categorically exempt under IDAPA 58.01.01.222.02 to demonstrate, with modeling, that the source will not cause or contribute to a violation of an ambient air quality standard. According to IDEQ, the modeling requirement was included in the Idaho rules as a means to ensure that sources that are not specifically identified as categorically exempt but are exempted based on emission levels do not cause or significantly contribute to a violation of an ambient air quality standard. As such, Idaho continued, the requirement is a necessary part of Idaho's program to “assure that national ambient air quality standards are achieved” as required by section 110(a)(2)(C) and (D) of the CAA. Therefore, IDEQ asserted, this provision is appropriately included as part of Idaho's SIP, and EPA should approve the provision into the SIP so that it may be enforced by EPA or by citizens in Federal court.

Response 2: EPA's approval of the list of categorically exempt sources and the “below regulatory concern” levels in sections IDAPA 58.01.01.221, -222.01, and -222.02 is based on EPA's determination that the emission levels and source categories in those sections are appropriately exempted from minor new source review. The requirement in IDAPA 58.01.01.220.01.a.iii that a source conduct modeling to show that its uncontrolled potential to emit will not cause or contribute to a NAAQS violation is a determination that is initially made by the source and is not submitted to IDEQ unless specifically requested. Because this modeling requirement is part of Idaho's requirements for the exemption of certain sources from minor new source review, EPA is approving it as an enforceable requirement of the Idaho SIP, but EPA did not base its approval of the minor new source review exemption provisions on this modeling requirement.

Comment 3: IDEQ disagreed with EPA's proposal not to approve IDAPA 58.01.01.222.03 based on EPA's determination that it conflicts with section 110(a)(2)(c) of the CAA and 40 CFR 51.160, which require that the SIP identify types and sizes of sources subject to review and enforcement. IDEQ stated that there are safeguards in the Idaho “director's discretion” exemption, in that the source's potential to emit cannot equal or exceed 100 tons per year of any regulated air pollutant, the emissions increase cannot constitute a major modification, and IDEQ must review and approve the ambient modeling to ensure the source's proposed emissions would not cause or significantly contribute to a violation of any ambient air quality standard. IDEQ pointed out that EPA acknowledges in the proposal that EPA regulations do not require the issuance of a permit for the construction or modification of minor sources, but only that the SIP include a procedure to prevent the construction of a source or modification that would violate the SIP control strategy or interfere with attainment or maintenance of the NAAQS. IDEQ concludes that the section 222.03 exemption should be approved because it does not violate any control strategy nor interfere with attainment of the NAAQS.

Response 3: As discussed in the proposal, IDAPA 58.01.01.222.03 authorizes IDEQ, without going through rulemaking or a SIP revision, to add individual sources to the list of sources that are exempt from minor NSR as categorically insignificant. See 67 FR at 52670. Although IDEQ states that there are safeguards on this exemption, IDEQ's determination that the source will not cause or contribute to a violation of an ambient air quality standard is at no point in the process subject to public and EPA review. This is in marked contrast to the other types of sources that are exempt from minor NSR in Idaho, for which the public and EPA have had an opportunity to review and comment on the emission levels and source categories that set the boundaries for the minor NSR exemptions.

It is true that EPA regulations do not require the issuance of a permit for the construction or modification of minor sources provided the SIP includes a procedure to prevent the construction of a source or modification that would violate the SIP control strategy or interfere with attainment or maintenance of the NAAQS. EPA statutes and regulations do require, however, that SIP revisions be subject to public comment and EPA approval, CAA 110(l) and 40 CFR 51.104, and also that the public have an opportunity to review and comment on a State's proposed approval of a new source or modification, 40 CFR 51.161(a). At no point in the process is IDEQ's decision that a particular source does not need approval or a permit to construct because it should be exempt under IDAPA 58.01.01.222.03 subject to EPA or public review. Moreover, EPA regulations require that a State's new source review regulations specifically identify the types and sizes of sources subject to review. See 40 CFR 51.160(e). The Idaho rules do not meet this requirement because sources that are initially required by the rules to get a permit can subsequently be exempted from that requirement by the Director of IDEQ without EPA or public notice or approval.

In short, IDAPA 58.01.01.222.03 in effect authorizes IDEQ to revise the SIP without a SIP revision that is subject to public or EPA review. Sections 110(i) and (l) of the CAA specifically preclude States from changing the requirements of the SIP except through SIP revisions adopted by the State after reasonable notice and public hearing and approved by EPA. This “director's discretion” provision of IDAPA 58.01.01.222.03 is inconsistent with those requirements, as well as the requirements of CAA section 110(a)(2)(C), 40 CFR 51.104, 40 CFR 51.160, and 40 CFR 51.161. Therefore, EPA is taking no action on this provision. As noted in the proposal, if IDEQ determines to exempt a source from new source review under the authority of IDAPA 58.01.01.222.03, the source is not exempt from new source review as a matter of Federal law unless and until the exemption has been approved by EPA as a source-specific SIP revision. See 67 FR 52670.

Comment 4: IDEQ commented on EPA's proposal not to act on IDAPA 58.01.01.401.04, which authorizes IDEQ to issue a Tier II operating permit with a future compliance date and requires EPA approval prior to issuance of such a permit. Idaho agrees that operating permits sanctioning a requirement that conflicts with the SIP may require a SIP revision. IDEQ asserts, however, that just as IDEQ enters into consent orders and settlement agreements with compliance schedules, IDEQ issues Tier II operating permits containing compliance schedules. IDEQ notes that compliance orders in Tier II permits use language similar to that in Tier II (title V) operating permits, that is, that the terms and conditions of the compliance schedule are supplemental to, and do not sanction noncompliance with, the underlying applicable requirement. For this reason, IDEQ asserts, EPA should approve IDAPA 58.01.01.401.04 as part of the SIP.

Response 4: By its terms, a compliance schedule issued under the authority of IDAPA 58.01.01.401.04. allows a source a future compliance date of up to three years beyond the compliance date of any provisions in IDAPA chapter 58. In other words, a compliance schedule issued under the authority of this provision is intended to delay the time for required compliance, in essence, to change the requirement for the source. 2 As such, it is a SIP revision that must be approved by EPA. This is in contrast to the kinds of compliance schedules issued under IDEQ's Tier I (title V) operating permit program or under other authority of State law, under which the compliance schedule sets forth a series of milestones for bringing a source into compliance with an applicable requirement. As noted by IDEQ, a compliance schedule issued in a Tier I (title V) operating permit does not sanction noncompliance with the underlying applicable requirement and does not extend the compliance date for the source. In contrast, a compliance schedule issued under the authority of IDAPA 58.01.01.401.04 by its terms extends the applicable compliance date for the source. In any event, because Idaho regulations provide that compliance schedules issued under the authority of IDAPA 58.01.01.401.04 must be approved by EPA, it is not necessary to include this provision as part of the SIP. Moreover, its inclusion in the SIP could cause confusion. Therefore, EPA is taking no action on this provision.

It may be that IDEQ has authority elsewhere in its Tier II permit program or under other provisions of Idaho law to issue a compliance schedule as part of a Tier II permit that sets forth a series of milestones for bringing a source into compliance with certain requirements, but that does not delay the compliance date, as does a compliance schedule issued under the authority of IDAPA 58.01.01.401.04. EPA's decision to take no action on IDAPA 58.01.01.401.04 has no bearing on IDEQ's authority to issue other types of compliance schedules. EPA recommends, however, that IDEQ carefully identify in any Tier II permit that contains a compliance schedule the regulatory provision under which such a compliance schedule is issued so that the procedure for issuing such a compliance schedule and the legal effect of such a compliance schedule is readily apparent.

Comment 5: IDEQ commented that EPA improperly places the burden on Idaho to establish that it has jurisdiction within Indian country with respect to regulation of persons who are not members of the tribe. IDEQ asserts that, under settled Indian law principles, Idaho presumptively has jurisdiction over persons that reside on Indian Reservations in Idaho who are not members of Tribes, citing to County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251, 257-58 (1992). Equally important, according to IDEQ, the CAA itself preserves State law from preemption in section 116 of the CAA, 42 U.S.C. 7416, with respect to air emission standards except in specified situations, and nothing in the statute itself expressly precludes the exercise of such authority in Indian country. IDEQ asserts that EPA therefore should expressly provide in the final rule that nothing in its approval is intended to preclude the exercise of State regulatory authority within Idaho Indian country independent of the CAA to the extent consistent with applicable Indian law principles.

Response 5: EPA reads this comment as a request that EPA clarify the status of State law as it applies within Indian reservations or other parts of Indian country. 3 EPA's proposed and final action are under the authority of the Federal Clean Air Act to approve revisions to the SIP so that those SIP provisions will be Federally enforceable under the CAA. Before EPA can approve a SIP or SIP revision as applying to a source, the State must demonstrate that it has adequate legal authority to implement and enforce the SIP under the Clean Air Act. See CAA sections 110(a)(2)(A), 110(a)(2)(E)(i) and 172(c)(6) of the Act. It is EPA's position that unless EPA has explicitly approved a program as applying in Indian country, State or local regulations are not effective within the boundaries of that Indian country land for purposes of complying with the CAA. See Federal Operating Permits Program Final Rule, 64 FR 8247, 8254 (February 19, 1999). EPA does not believe it would be appropriate for EPA to approve State CAA programs as applying in Indian country where there has not been an explicit demonstration of adequate jurisdiction. 64 FR 8253. Moreover, EPA interprets the Clean Air Act as favoring a territorial approach for implementing the CAA throughout Indian reservations either under tribal authority as delegated by Congress or by EPA implementation. 64 FR 8252. EPA believes it has the authority under the CAA to regulate all reservation sources in order to ensure an efficient and effective transition to Tribal administration of CAA programs and to avoid the administratively undesirable checkerboarding of reservations based on land ownership. Id. EPA notes that nowhere in the State's SIP submittal did IDEQ attempt to demonstrate that it has the authority to implement and enforce its State laws under the authority of the Clean Air Act in Indian country in Idaho, and EPA has not evaluated these State law authorities outside of the context of the CAA. EPA's proposed approval and this final action do not take a position on whether State laws regulating air resources have effect in Indian country outside of the context of the Clean Air Act.

Comment 6: IDEQ commented that disagreement exists over the continued existence of the Nez Perce Reservation as described in Article 2 of the 1863 Treaty with the Nez Perces, 14 Stat. 647 (1863). IDEQ believes that a cession agreement between the United States and the Tribe ratified by Congress in 1894, 28 Stat. 326 (1894), has diminished the Reservation's land base substantially and that the Reservation now encompasses only those lands retained presently in trust pursuant to the terms of the cession agreement, citing to United States v. Webb , 219 F.3d 1127 (9th Cir. 2000), cert. denied , 531 U.S. 1200 (2001). IDEQ asserted that EPA and IDEQ acknowledged this controversy in a December 2000 memorandum of understanding (MOU) concerning implementation of title V of the CAA. In view of the decision in Michigan v. EPA , 268 F.3d 1075 (D.C. Cir. 2001), IDEQ continued, EPA should make clear its rationale for excluding the entirety of the 1863 Reservation from the scope of the proposed action.

Response 6: As discussed above, unless EPA has explicitly approved a program as applying in Indian country, it is EPA's position that State or local regulation is not effective within the boundaries of that Indian country land for purposes of complying with the CAA. EPA is excluding from this SIP approval the Nez Perce Reservation, as described in the 1863 Nez Perce Treaty, because the Federal government has long maintained that the Nez Perce Reservation, as described in that treaty, constitutes Indian country, as defined in 18 U.S.C. 1151.

Michigan v. EPA , 268 F.3d 1075 (D.C. Cir. 2001) does not apply to this SIP action. That case dealt with the issue of whether EPA has authority to require a facility to apply to EPA for a Federal operating permit under title V of the Clean Air Act in cases where EPA had not determined whether the facility was in Indian country. This SIP approval is an action under title I of the CAA. Moreover, EPA's position, and that of the United States, is that the exterior boundary of the Nez Perce Reservation that exists today is described in the 1863 Nez Perce Treaty  4 and that the Nez Perce Reservation, as so described, is Indian country. In its comment, the State cites U.S. v. Webb , Case No. CR98-80-N-EJL (9th Cir., Jan. 12, 1999), as showing there is a controversy about the Reservation boundaries. However, the United States' position in that case, as well as other cases raising the issue, was that the Nez Perce Reservation is still as described in the 1863 Treaty. Michigan v. EPA is therefore not relevant to the issues in this SIP approval.

EPA remains fully committed to the spirit and intent of the December 2000 MOU referenced in the IDEQ comment. The purpose of the MOU, however, was to address the implementation of the operating permits program under title V of the CAA on the Nez Perce Reservation and it does not address the issue of whether IDEQ has established that it has authority under the Clean Air Act to implement and enforce its State regulations approved under title I of the Act against sources located within the boundaries of the Nez Perce Reservation as established by the 1863 Nez Perce Treaty. Moreover, nothing in the MOU constituted an admission by the United States that the Nez Perce Reservation has been diminished or is otherwise in question.

Comment 7: Simplot requested reconsideration of EPA's position that EPA approval of Idaho's “Rules for Control of Sulfur Oxide from Sulfuric Acid Plants” does not alter previous EPA disapproval of the Idaho SIP regarding the Eastern Idaho Intrastate Air Quality Control Strategy, nor the source-specific Federal regulations at 40 CFR 52.675. According to Simplot, EPA's position does not recognize relevant and significant history related to the Eastern Idaho Intrastate Air Quality Control Strategy, which has been in attainment for 20 years. Accordingly, Simplot requested that portions of the Federal regulations imposed upon Simplot to adequately prevent violations of the NAAQS for SO 2 , which Simplot contends are obsolete, be revisited and deleted from this portion of the Idaho control strategy.

Response 7: This comment does not address aspects of the SIP request submitted by the State of Idaho and on which EPA proposed to take action. Thus, EPA views this comment as a request to conduct rulemaking to revise the existing Federal implementation plan as it pertains to Simplot.

As EPA has previously notified IDEQ and Simplot, EPA does not have the authority to repeal these FIP requirements in the absence of other Federally-enforceable limits on SO 2 emissions from the Simplot sulfuric acid plants approved as part of a SIP or promulgated as part of other Federal requirements and a demonstration that these limits do not interfere with attainment or maintenance of the NAAQS for SO 2 , violate any prevention of significant deterioration (PSD) increment, or result in visibility impairment. To date, EPA has not received from IDEQ or Simplot a demonstration that the Federally-enforceable limits in place at the Simplot facility are sufficient to protect the SO 2 NAAQS, PSD increments, and visibility in the absence of the requirements Simplot requests be removed. Therefore, as noted in the proposal, EPA's action on this SIP does not modify EPA's previous disapproval of the Idaho SIP with respect to its adequacy to attain and maintain the NAAQS for sulfur dioxide in the Eastern Idaho Intrastate Air Quality Control Region. See 40 CFR 52.675(a)(1) and (2). Thus, the source-specific Federal regulations at 40 CFR 52.675(b) that EPA promulgated in response to that disapproval remain in place. See 67 FR 52672.

EPA is taking final action to approve all of the amendments to the Rules for the Control of Air Pollution in Idaho as submitted by the Director of IDEQ on May 17, 1994, May 11, 1995, November 21, 1996, February 28, 1997, December 18, 1997, April 9, 1998, May 5, 1999, December 5, 2000, and May 30, 2002, except that EPA is taking no action on section 008; subsections 107.03.h. through q 5 ; section 222.03; sections 300 through 387; subsection 401.01.a. and section 401.04; sections 440 and 441; sections 525 through 538; section 577.06; section 586; sections 750 and 751; sections 775 and 776; section 818; section 819; section 820; section 824.01; and sections 835 through 839. 6 EPA approved section 204 on April 17, 2001 (66 FR 19722) and sections 563 through 574 and section 582 on April 12, 2001 (66 FR 18873). The entire text of the EPA-approved Idaho rules may be viewed on line at http://www.epa.gov/r10earth/sips.htm.

EPA is also deleting the total suspended particulates area designations for Idaho in 40 CFR 81.313 and adjusting the PM-10 area designations in 40 CFR 81.313.

Consistent with EPA's proposal, this SIP approval does not extend to Indian country in Idaho. See 67 FR 52673.

Note that, with respect to Idaho's rules relating to new source review, EPA has determined that Idaho's rules meet the requirements of 40 CFR part 51, subpart I, as currently in effect, and is taking no position on whether Idaho will need to make changes to its new source review rules to meet requirements that EPA has promulgated, but are not yet effective, as part of new source review reform.

Finally, while EPA is approving the Idaho permit to construct rules, EPA recognizes that it has a responsibility to insure that all States properly implement their preconstruction permitting programs. EPA's approval of the Idaho permit to construct rules does not divest EPA of the duty to continue appropriate oversight to insure that permits issued by Idaho are consistent with the requirements of the Act, EPA regulations, and the SIP. EPA's authority to oversee permit program implementation is set forth in sections 113, 167, and 505(b) of the Act. For example, section 167 provides that EPA shall issue administrative orders, initiate civil actions, or take whatever other enforcement action may be necessary to prevent construction of a major stationary source that does not “conform to the requirements of” the PSD program. Similarly, section 113(a)(5) of the CAA provides for administrative orders and civil actions whenever EPA finds that a State “is not acting in compliance with” any requirement or prohibition of the Act regarding construction of new or modified sources. Likewise, section 113(a)(1) provides for a range of enforcement remedies whenever EPA finds that a person is in violation of an applicable implementation plan.

Enactment of title V of the Act and the EPA objection opportunity provided therein has added new tools for addressing deficient new source review decisions by States. Section 505(b) requires EPA to object to the issuance of a permit issued pursuant to title V whenever the Administrator finds during the applicable review period, either on her own initiative or in response to a citizen petition, that the permit is “not in compliance with the requirements of an applicable requirement of this Act, including the requirements of an applicable implementation plan.”

Regardless of whether EPA addresses deficient permits using objection authorities or enforcement authorities or both, EPA cannot intervene unless the State decision fails to comply with applicable requirements. In determining whether a title V permit incorporating PSD provisions calls for EPA objection under section 505(b) or use of enforcement authorities under sections 113 and 167, EPA will consider whether the applicable substantive and procedural requirements for public review and development of supporting documentation were followed. In particular, EPA will review the process followed by the permitting authority in determining best available control technology, assessing air quality impacts, meeting Class I area requirements, and other PSD requirements, to ensure that the required SIP procedures (including public participation and Federal Land Manager consultation opportunities) were met. EPA will also review whether any determination by the permitting authority was made on reasonable grounds properly supported on the record, described in enforceable terms, and consistent with all applicable requirements. Finally, EPA will review whether the terms of the PSD permit were properly incorporated into the title V operating permit.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 17, 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).)

Regulated Entities. Categories and entities potentially regulated by this action:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria in sections 63.1935 and 63.1940 of subpart AAAA. If you have any questions regarding the applicability of this action to a particular entity, contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Docket. We have established an official public docket for this action under Docket ID No. OAR-2002-0047. 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 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 Office of Air and Radiation Docket and Information Center (Air Docket) in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Avenue, NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742.

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

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

Worldwide Web (WWW). In addition to being available in the docket, an electronic copy of the final rule is also available on the WWW through the Technology Transfer Network (TTN). Following signature, a copy of the final rule will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address: http://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.

Judicial Review. The NESHAP for MSW landfills was proposed on November 7, 2000 (65 FR 66672). A supplemental proposal with additional bioreactor provisions was published on May 23, 2002 (67 FR 36460). The final rule announces the EPA's final decision. Under section 307(b)(1) of the CAA, judicial review of the final rule is available by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by March 17, 2003. Only those objections to the final rule which were raised with reasonable specificity during the period for public comment may be raised during judicial review. Under section 307(b)(2) of the CAA, the requirements that are the subject of the final rule may not be challenged later in civil or criminal proceedings brought by EPA to enforce these requirements.

Outline. The information presented in the preamble is organized as follows:

Under section 112(d) of the CAA, we are required to regulate major sources of 188 HAP listed in section 112(b) of the CAA. On July 16, 1992 (57 FR 31576), we published a list of industrial source categories, which included MSW landfills, that emit one or more of these HAP. We must promulgate standards for the control of emissions of HAP from both new and existing major source MSW landfills.

Under section 112(k) of the CAA, we developed a strategy to control emissions of HAP from area sources in urban areas, identifying 33 HAP that present the greatest threat to public health in the largest number of urban areas as the result of emissions from area sources. Municipal solid waste landfills were listed on July 19, 1999, as an area source category to be regulated pursuant to section 112(k) because 13 of the listed HAP are emitted from MSW landfills (64 FR 38706).

The CAA requires NESHAP to reflect the maximum degree of reduction in emissions of HAP that is achievable for new and existing major sources. This level of control is commonly referred to as MACT.

The MACT floor is the minimum control level allowed for NESHAP and is defined under section 112(d)(3) of the CAA. The MACT floor ensures that all major HAP emissions sources achieve the level of control already achieved by the better-controlled and lower-emitting sources in each category. For new sources, the MACT floor cannot be less stringent than the emission control that is achieved in practice by the best-controlled similar source. The standards for existing sources can be less stringent than standards for new sources, but they cannot be less stringent than the average emissions limitation achieved by the best-performing 12 percent of existing sources (or the best-performing 5 sources for categories or subcategories with fewer than 30 sources).

In developing MACT, we also must consider control options that are more stringent than the floor. We may establish standards more stringent than the floor based on the consideration of cost, non-air-quality health and environmental impacts, and energy requirements.

Finally, the CAA allows NESHAP to reflect an alternative standard for area sources. The alternative standard provides for the use of generally available control technologies (GACT) or management practices to reduce emissions of HAP.

The final rule ensures reductions of emissions of nearly 30 HAP including, but not limited to, vinyl chloride, ethyl benzene, toluene, and benzene. Each of the HAP emitted from MSW landfills can cause adverse health effects provided sufficient exposure. For example, vinyl chloride can adversely affect the central nervous system and has been shown to increase the risk of liver cancer in humans, while benzene is known to cause leukemia in humans. Additional discussion of health effects is provided in the proposal (65 FR 66672) and Docket A-98-28. The degree of adverse effects to human health from exposure to these HAP can range from mild to severe. The extent and degree to which the human health effects may be experienced depend on the ambient concentration observed in the area (as influenced by emissions rates, meteorological conditions, and terrain); the frequency and duration of exposures; characteristics of exposed individuals (genetics, age, preexisting health conditions, and lifestyle), which vary significantly with the population; and pollutant-specific characteristics (toxicity, half-life in the environment, bioaccumulation, and persistence). We recognize that health risks are significantly reduced at landfills that collect and control landfill gas.

The final rule contains the same requirements as the EG/NSPS (40 CFR part 60, subparts Cc and WWW), plus SSM definition and reporting of deviations for out-of-range monitoring parameters. Also, the final rule requires compliance reporting every 6 months while the EG/NSPS requires annual reporting. For bioreactors at large landfills, the NESHAP also require timely installation of controls, and allows timely removal of controls.

The final rule applies to all MSW landfills that are major sources or are collocated with a major source, and to some landfills that are area sources. We estimate that all MSW landfills that are major sources of HAP ( i.e. , with a potential to emit at least 10 tons per year (tpy) of any individual HAP or 25 tpy total HAP) will also meet the EG/NSPS criteria for installing collection and control systems ( i.e. , have a design capacity equal to or greater than 2.5 million megagrams (Mg) and 2.5 million cubic meters (m 3 ) and have estimated uncontrolled emissions of 50 megagrams per year (Mg/yr) nonmethane organic compound (NMOC)). All major source landfills, including those operated partially or completely as bioreactors, are covered by the final rule and, in addition to EG/NSPS control requirements, are subject to the additional SSM, deviation, and compliance reporting requirements of the NESHAP. Landfills that do not themselves emit major source levels of HAP but that are collocated with major sources of HAP are also covered by the final rule. However, if these landfills are smaller than the EG/NSPS thresholds, they have fewer requirements under the NESHAP, as previously discussed in this preamble.

In addition, as previously discussed in this preamble, landfills have been listed as an area source category pursuant to section 112(k). The final rule applies to area source landfills if they have a design capacity equal to or greater than 2.5 million Mg and 2.5 million m 3 , and they have estimated uncontrolled emissions of 50 Mg/yr NMOC or more, or are operated as a bioreactor. The final rule does not apply to area source landfills (including bioreactors) with a design capacity less than 2.5 million Mg or 2.5 million m 3 . It also does not apply to conventional area source landfills that have estimated uncontrolled emissions of less than 50 Mg/yr NMOC. (The EG/NSPS require landfills that meet the design capacity criteria to periodically calculate uncontrolled annual NMOC emissions. If an area source landfill that currently has estimated uncontrolled emissions less than 50 Mg/yr increases to 50 Mg/yr in the future, it will become subject to the NESHAP at that time.) For a complete description of applicability, see section III.A of this preamble and sections 63.1935 through 63.1945 of the final rule.

The affected source is the entire MSW landfill in a contiguous geographical space where household waste is placed in or on the land and consists of one or more cells that are under common ownership or control. The facility may receive household waste as well as other types of Resource Conservation and Recovery Act (RCRA) Subtitle D waste. The affected source may be operated as a conventional landfill, or it may be operated completely or partially as a bioreactor. To be an affected source, the landfill must have accepted waste since November 8, 1987, or have additional capacity for waste deposition, and must be either: (1) A major source of HAP; (2) collocated with a major source of HAP; (3) an area source with a design capacity greater than or equal to 2.5 million Mg and 2.5 million m 3 and with estimated uncontrolled NMOC emissions equal to or greater than 50 Mg/yr; or (4) an active area source landfill with a design capacity greater than or equal to 2.5 million Mg and 2.5 million m 3 that operates an anaerobic bioreactor, as defined in the final rule. The bioreactor provisions do not apply to closed landfills.

Major and area source landfills with a design capacity of greater than or equal to 2.5 million Mg and 2.5 million m 3 , and with estimated uncontrolled NMOC emissions of at least 50 Mg/yr, would continue to be subject to the EG/NSPS as applicable, plus additional requirements imposed by the final rule. These requirements also apply to bioreactors within active landfills at both major and area sources if the landfill meets the design capacity criteria.

You are required to meet the SSM requirements that are listed in the general provisions to 40 CFR part 63. You must develop and implement a written SSM plan that describes in detail the procedures for operating and maintaining the collection and control system and the continuous monitoring system (CMS) during periods of SSM (section 63.6(e)(3)). There are also recordkeeping and reporting requirements for SSM incidents.

The final rule also requires you to operate the control device within the operating parameter boundaries as described in 40 CFR 60.758(c)(1) and to continuously monitor control device operating parameters. Compliance with the operating conditions is demonstrated when monitoring data show that the gas control devices are operated within the established operating parameter range. Compliance also occurs when data quality is sufficient to constitute a valid hour of data in a 3-hour block period. Deviations occur when a source's 3-hour average falls outside the established boundaries. A deviation also occurs when more than 1 hour in a 3-hour average is considered invalid. To be considered a valid hour, measured values must be available for at least three 15-minute periods within the hour. If such a deviation occurs, then the source may be in violation of operating conditions (that is, in violation of proper operation and maintenance of a control device).

With one exception, the final rule also requires you to submit the reports that are specified in 40 CFR part 60, subpart WWW, or in the Federal plan, the EPA-approved State plan, or Tribal plan that implements 40 CFR part 60 subpart Cc, whichever is applicable. As an exception, the report required in section 60.757(f) must be submitted every 6 months rather than annually. The report pertains to the control device operating parameter value and the duration of time that control devices were operating in out-of-bounds conditions, the duration of periods when the landfill gas stream was diverted from the control device(s), the location of areas that exceed the 500 parts per million methane concentration limit, and the dates of installation and location of each added well or collection system expansion.

If a landfill is subject to the final rule because it is collocated with a major source and the landfill has a design capacity less than 2.5 million Mg or 2.5 million m 3 , the landfill must comply with the applicable EG/NSPS requirements (i.e., it must submit a design capacity report). The landfill would not be subject to additional control and reporting requirements under the NESHAP.

Note that while area source landfills that have a design capacity less than 2.5 million Mg or 2.5 million m 3 , or estimated uncontrolled NMOC emissions less than 50 Mg/yr (for landfills other than bioreactors) are not subject to the final rule, they must continue to comply with the provisions of the NSPS or State, tribal, or Federal plan that implements the EG, as applicable.

If your landfill is a new affected source, you must comply with the final rule by January 16, 2003 or at the time you begin operating, whichever occurs last. The final rule requires you to comply with the NSPS at that time. For the requirements in the final rule that are over and above the NSPS, you must begin complying by the date your new major or area source landfill is required to install a collection and control system by the NSPS. If you own or operate a bioreactor at a landfill that is a new affected source, then you are required to install the gas collection and control system in the bioreactor prior to initiating liquids addition, regardless of whether the landfill emissions rate equals or exceeds the estimated uncontrolled emissions rate of 50 Mg/yr specified in the EG/NSPS. Startup of the collection and control system is required within 180 days after initiating liquids addition or within 180 days after reaching 40 percent moisture content within the bioreactor, whichever is later.

If your landfill is an existing affected source, then you must comply with the final rule by January 16, 2004. The final rule requires you to comply with the NSPS or Federal, State, or Tribal plan that implements the EG, whichever applies to your landfill, at that time. You must begin complying with the additional requirements of the final rule (that are over and above the EG/NSPS) by January 16, 2004, or the date your landfill is required to install a collection and control system by the NSPS or Federal, State, or Tribal plan that implements the EG, whichever is later. If your landfill has a bioreactor and the landfill is an existing affected source, then you must install and begin operating a collection and control system for the bioreactor within 3 years after publication of the final rule unless earlier control is already required by the EG/NSPS. You are required to conduct a performance test and report the results within 180 days after startup of the bioreactor collection and control system. If an existing source landfill installs and begins to operate a bioreactor at a date later than 3 years after the final rule is published, you must install a collection and control system for the bioreactor before the initiation of liquids addition. The control system is required to begin operation within 180 days after the first date of liquids addition or within 180 days after reaching 40 percent moisture content. See sections 63.1935 through 63.1947 for the complete requirements regarding compliance times.

For the final rule, a new affected source is one that commenced construction or reconstruction (defined in 40 CFR part 63, subpart A) after November 7, 2000. An existing affected source is any affected source that is not a new source, that is, any source that commenced construction on or before November 7, 2000, and accepted waste any time since November 8, 1987, or has additional capacity for waste deposition.

For purposes of the NSPS, a new source is each MSW landfill for which construction, modification, or reconstruction commenced on or after May 30, 1991. For purposes of the EG, an existing source is any MSW landfill that is not a new source and has accepted waste since November 8, 1987, or has capacity for additional waste deposition.

Because regulatory impacts can vary based on these different definitions, it is important for sources to know how they are defined and the regulatory implications for each rule that applies to them. The regulatory implications of new versus existing source determination for sources affected by the EG/NSPS are well understood, unaffected by the final rule, and, thus, will not be discussed further here. The regulatory implications of new versus existing source determination for sources affected by the final rule are limited to compliance timing and are previously discussed in this preamble.

You must demonstrate compliance by meeting the applicable requirements in the EG/NSPS and, if you are required to install a collection and control system, by maintaining monitoring parameters within acceptable ranges. In addition, you must submit reports every 6 months which would include any notifications of deviations from the monitoring parameter values. You must develop and implement a written SSM plan according to the provisions in section 63.6(e)(3). If you take action during a SSM event, you must keep records for that SSM event which demonstrate that you followed the procedures specified in the SSM plan. You must submit a report every 6 months if the action is consistent with the SSM plan. However, if the action is not consistent with the SSM plan, you must notify EPA within 2 days of the SSM event and must follow up with a letter within 7 days of the event (section 63.10(d)(5)(ii)).

A bioreactor is defined as a MSW landfill or portion of a MSW landfill where any liquid other than leachate (leachate includes landfill gas condensate) is added in a controlled fashion into the waste mass (often in combination with recirculating leachate) to reach a minimum average moisture content of at least 40 percent by weight to accelerate or enhance the anaerobic (without oxygen) biodegradation of the waste. We consider landfill gas condensate to be a constituent of leachate. Addition of wastewater sludges to the waste mass is considered addition of liquids other than leachate. Bioreactors at active landfills that meet the design capacity criteria are required to install and begin operating gas collection and control systems in a timely manner as previously discussed in this preamble. The timing for extending the collection and control system into new cells or areas of the bioreactor is also different from conventional landfills. Once control of your bioreactor is required, you must install collection and control systems in new areas or cells of the bioreactor prior to initiating liquids addition to that area, cell, or group of cells. Controls may be removed from the bioreactor portion of the landfill either:

(1) When the criteria for control removal specified in the landfills EG/NSPS are met, or (2) When the bioreactor is permanently closed, liquids addition has ceased, and liquids have not been added to the bioreactor for at least 1 year.

At some landfills, a portion of the landfill is a bioreactor and the remainder is designed and operated as a conventional landfill. In these situations, the control requirements and the timing of control installation for the conventional portion of the landfill do not change. You must continue to use the equations and factors in the EG/NSPS to calculate the annual estimated uncontrolled NMOC emissions for your landfill as a whole (including the total waste placed in the bioreactor area and the conventional area). When your calculated uncontrolled NMOC emissions equal or exceed 50 Mg/yr, then you must install a collection and control system for the conventional portions of the landfill according to the schedule in the NSPS, or the applicable State, Tribal, or Federal plan that implements the EG. Only the bioreactor portion of the landfill must meet the control schedule for bioreactors.

Note that as a general rule, it is currently difficult for an owner/operator of a MSW landfill to operate a large bioreactor as defined in the final rule. This is because of the Federal criteria regulating MSW landfills, specifically 40 CFR part 258.28 which prohibits the addition of liquids other than leachate and gas condensate to a landfill and 40 CFR part 258.26 which limits the entry of rainwater into MSW landfills through specified run-on control systems. A few landfills have gained site specific variances under Project XL to operate landfill bioreactors.

However, on June 10, 2002, EPA proposed a revision to 40 CFR part 258 that would allow the Director of an approved State to issue a research, development, and demonstration (RD&D) permit for a MSW landfill (67 FR 39662). That proposed RD&D rule would allow the States to grant variances to certain parts of the MSW landfill criteria (40 CFR part 258) through the issuance of RD&D permits. As a result, once the RD&D rule becomes final and an approved State integrates the new Federal regulations, the Director of an approved State may issue permits which could potentially allow for the operation of a bioreactor landfill as long as there is no increased risk to human health and the environment (as compared to a MSW landfill permitted under the existing 40 CFR part 258 criteria). Therefore, once the proposed rule allowing RD&D permits for MSW landfills becomes final, we expect the number of bioreactor landfills to increase.

This section of the preamble is a brief summary of the major public comments received in response to the original proposal and the supplemental proposal for the MSW landfills NESHAP, and changes resulting from the comments. Additional comments are summarized in the document “Municipal Solid Waste Landfills: Background Information Document for National Emission Standards for Hazardous Air Pollutants—Public Comments and Responses.” The document contains a full report of all comments received and our responses. The document may be found in Docket A-98-28.

Comment: Two commenters recommended that additional MACT requirements apply only to major sources and that EPA require no controls for area sources.

Response: We believe regulation of area sources is appropriate under section 112(k) of the CAA. Under Section 112(k), we developed a strategy to control emissions of HAP from area sources in urban areas, identifying 33 HAP that present the greatest threat to public health in the largest number of urban areas as the result of emissions from area sources. Municipal solid waste landfills were listed on July 19, 1999, as an area source category to be regulated pursuant to section 112(k) because 13 of the listed HAP are emitted from MSW landfills (64 FR 38706). Section 112(k) requires that sufficient categories of area sources be regulated to assure that sources accounting for at least 90 percent of the aggregate emissions of each of the HAP identified pursuant to 112(k) as being the greatest threat to health in urban areas are subject to standards. As we stated at proposal, we believe it is necessary to regulate some area MSW landfills to meet this requirement of section 112(k). Therefore, we have not changed this aspect of the final rule's applicability. (Note that the bioreactor provisions of the final rule apply to major and area sources that exceed the EG/NSPS design capacity criteria of 2.5 million Mg and 2.5 million m 3 and operate as a bioreactor regardless of whether they meet or exceed the EG/NSPS estimated uncontrolled NMOC emissions criteria of 50 Mg/yr. See sections II and III.C of this preamble for further information on bioreactor applicability and requirements.)

Comment: A commenter expressed concern that small landfills that are collocated with major source facilities become subject to EG/NSPS control under the final rule.

Response: Small landfills that are collocated with major source facilities are subject to the final rule. The final rule requires them to comply with the EG/NSPS. If the design capacity of the collocated landfills is less than 2.5 million Mg or 2.5 million m 3 , the landfills comply by submitting a design capacity report as required by the EG/NSPS. The final rule language has been revised to clarify that the final rule applies to these landfills but does not extend the additional final rule requirements and EG/NSPS collection and control requirements to landfills that do not meet the control device applicability thresholds of the EG/NSPS.

Comment: Several other comments included suggested changes to proposed rule applicability language.

Response: We have revised sections 63.1935, 63.1940, and 63.1945 to clarify the application of the final rule to major sources, area sources and smaller landfills collocated with major sources, as well as identify the affected source for the final rule and clarify the timing of the regulatory requirements. We also added language to section 63.1955 to further explain that landfills required to install a collection and control system under NSPS, Federal, State or tribal plans that implement the EG must also meet the requirements in sections 63.1960 through 63.1980 of the final rule.

Comment: Two commenters requested clarification of the timing of the final rule regulatory requirements. They pointed out that the proposal preamble indicated that the additional requirements of the final rule (compared to the NSPS) do not take effect until the landfill is required to install controls under the EG/NSPS, but the regulation language was not clear.

Response: In response to this comment, we revised section 63.1945 to be consistent with our intent at proposal. The wording of this section continues to require that new sources comply with the final rule on the date of publication of the final rule or at the time they begin operation, whichever is later; and that existing sources comply with the final rule by January 16, 2004. At that time, the source is required to comply with the NSPS or the Federal, State, or tribal plan that implements the EG. We have added language to this section to clarify when landfills must comply with certain requirements within the final rule. New affected sources must comply with the additional final rule requirements (such as the SSM plan and the semiannual reporting of deviations) on the date the landfill is required to install collection and control systems under the NSPS. Existing affected sources must comply with the additional final rule requirements on the date the landfill is required to install collection and control systems under the NSPS, Federal, State or tribal plan or 1 year after publication of the final rule, whichever is later.

Comment: Several commenters expressed concern that we overestimated the number of major source landfills. The commenters contend that AP-42 emissions factors are incorrect and provide overestimates of landfill gas emissions, that EG/NSPS controls should be taken into account when determining major source status of landfills, and that using NMOC as a HAP surrogate is too arbitrary.

Response: We respond that we used the best method for calculating emissions that is currently available and accepted, which is the current version of AP-42. The EPA program responsible for AP-42 factors is reviewing existing reports and technical data as well as undertaking a landfill testing program to collect additional HAP data. Currently, the data collection and analysis are not yet complete, and could not be completed prior to promulgation of the final rule. When we update the AP-42 chapter on landfill emissions, we will consider all relevant data. However, any update of AP-42 or adjustment of calculation procedures would not affect our regulatory decisions in developing the final rule. We find that the MACT floor is the EG/NSPS level of control. The floor is based on the current level of control at major and synthetic area sources and would not change if there were somewhat fewer or more major sources than previously estimated.

We agree that in determining whether a source is major, enforceable control requirements should be considered. The statement in the proposal preamble identifying 1,140 facilities as major sources may not have been clear. The intent was to say that based on estimates of maximum uncontrolled emissions, 1,140 landfills have potential emissions greater than 10 tpy individual HAP or 25 tpy of a combination of HAP. Some of the 1,140 landfills are major sources and others are “synthetic area” sources (sources that would otherwise be major if not for enforceable emissions controls). Both major and synthetic area sources were correctly included in the MACT floor determination. The CAA does not suggest we exclude a control technology from consideration in the MACT floor because it is so effective it reduces emissions from a source such that the source is no longer a major source of HAP.

To determine major source status for rule applicability, a landfill owner/operator would consider enforceable control requirements such as the NSPS. Since the landfills NESHAP requirements for area sources that meet the NSPS capacity criteria and have uncontrolled NMOC emissions of 50 Mg/yr or greater are the same as for major sources, this classification would not change the control or reporting requirements for the landfill. It should be noted that the final rule has not redefined major source. Major source status is determined according to the NESHAP general provisions definition. Nonmethane organic compounds are a surrogate for HAP control, not for whether a facility is a major source. Nonmethane organic compounds are an appropriate surrogate for HAP control because all HAP regulated by the final rule are contained in the NMOC portion of the landfill gas. Landfill owners/operators are already required to estimate NMOC under the EG/NSPS, and it is not necessary to increase the burden by requiring specific HAP measurements as well.

Comment: We received several comments about the timing of startup of the gas collection and control system. Three commenters expressed concern that due to a wide range of possible development scenarios, commencing operation of the gas collection and control system within 90 days of liquids addition may not be appropriate in all cases. Two of the commenters stated that the generation rates of landfill gas during the initial development phases of bioreactors are a function of many factors and substantial quantities of recoverable landfill gas may not be available due to low waste acceptance rates, hybrid bioreactor operations, high inorganic waste fractions, or low liquids addition rates where gas generation is likely to be similar to that of conventional landfills. Under these circumstances, premature startup of the gas control system may result in significant volumes of air being introduced into the bioreactor, thus killing methane-producing bacteria. These commenters recommended extending the startup time frame to 180 days or establishing a process for waiving or delaying the startup date if local conditions warrant.

Response: In response to this comment, we have changed the final rule to allow 180 days instead of 90 days to begin operation of the collection and control system. We are aware that bioreactors may experience variable emissions rates upon initial liquids addition due to site-specific factors such as those described by the commenters. Furthermore, gas collection systems for bioreactors are site-specific and are likely to use newer designs, so operators may require time to gain experience and make operational adjustments to their systems. The 180 day period will allow time for landfill operators to adjust their collection systems such that they can achieve continuous, stable collection and control system operation.

Comment: Four commenters requested clarification as to whether the rule was meant to require the operation of the gas collection and control system within 90 days after the initial liquids addition or within 90 days after the moisture content has reached 40 percent. Commenters stated that they believed the intent was to require operation of the gas collection and control system after the moisture content reached 40 percent. The commenters stated that it may take longer than 90 days of liquids addition to reach a moisture content of 40 percent.

Response: It was our intent that attaining 40 percent moisture triggers the operation of the control system, and not merely the introduction of liquids. If operation of the control system is based on the time of liquids addition and the landfill has not reached 40 percent moisture content within 90 days, then the rule (as proposed) would be requiring collection and control to be installed and operated prior to the landfill meeting the definition of a bioreactor. We have revised the final rule to clarify that the operation of the collection and control system is required within 180 days after the landfill starts liquids addition or within 180 days after the bioreactor has reached 40 percent moisture content (i.e. 180 days after the landfill has met the definition of bioreactor), whichever is later. Landfills must use the procedures in section 63.1980(g) and (h) to determine when 40 percent moisture content is reached. (No calculation is needed if you start operating the collection and control system within 180 days after the initial liquids addition.) Installation of the collection and control system is still required prior to liquids addition, as required in the supplemental proposal.

Comment: We received several comments pertaining to the exclusion of landfills that recirculate leachate and do not add any other liquids from the definition of a bioreactor landfill. Three commenters who supported the exclusion stated that liquids addition other than that provided by leachate recirculation is normally needed to achieve optimum moisture for bioreactors. Many landfills recirculate leachate as part of their leachate management system without creating bioreactor conditions. A commenter who opposed the exclusion contended that a landfill in a relatively moist climate could sustain an effective bioreactor operation on leachate recirculation alone. This commenter pointed out that there were odor problems at landfills in his State that began recirculating leachate without a collection and control system. The commenter stated that his State now requires collection and control for all landfills that recirculate leachate. The commenter also expressed concern that landfills recirculating leachate only may reach the 40 percent moisture level in the waste by recirculating leachate from the entire landfill into a single bioreactor cell. Another commenter who opposed the exclusion contended that minimal data from landfills recirculating leachate has been collected to allow for the exclusion.

Response: We have not changed the bioreactor definition. A very small percentage of bioreactors in moist climates would reach moisture content of 40 percent with leachate recirculation only. Due to variations in rainfall throughout the year, it would be difficult to consistently maintain a high moisture content in the waste to function as a fully operational bioreactor. We expect that landfill owners that decide to create bioreactors in the future will typically plan to operate a large area as a bioreactor to achieve potential benefits such as earlier stabilization of waste, extended use of current sites and reduced need for new sites. Liquids addition would be needed to maintain such bioreactors.

It would be a large and unnecessary burden to require potentially hundreds of landfills that recirculate leachate, but do not add any other liquids, to calculate their percent moisture content and determine if they are a bioreactor, when we expect that they will not meet the 40 percent moisture criteria in the definition of a bioreactor. These landfills would still be subject to the final rule and EG/NSPS control requirements for conventional landfills, which will require gas collection and control after their estimated uncontrolled NMOC emissions reach 50 Mg/yr. State, local, or tribal agencies may develop more stringent State or local regulations for landfills recirculating leachate in cases where odor or air emissions warrant active landfill gas collection and control.

Comment: One commenter pointed out that the potential exists for smaller bioreactor landfills that add liquids, to generate significant air emissions that warrant timely installation of gas collection and control systems. The commenter recommended requiring control of bioreactors at landfills with design capacities less than 2.5 million Mg or 2.5 million m 3 .

Response: We have not changed our conclusion since proposal. In determining GACT for area sources, we decided not to require control at small area source conventional or bioreactor landfills. While bioreactors generate larger amounts of landfill gas early in their life, we expect that their lifetime total landfill gas generation potential would not be significantly greater than a conventional landfill accepting the same total amount of waste. Therefore, potential emissions reductions from control of bioreactors would be similar to potential long-term emissions reductions from control of small conventional landfills. Requiring bioreactors at small landfills (i.e., landfills with design capacities less than 2.5 million Mg or 2.5 million m 3 ) to install controls would result in additional control costs because they are not required to install controls by the EG/NSPS. The design capacity exemption excludes those landfills that can least afford the costs of collection and control systems including small businesses and, particularly, municipalities. Other reasons for exempting small landfills are described in the proposed landfills NESHAP (65 FR 66677, November 7, 2000) and also apply to bioreactors.

Comment: Four commenters encouraged us to include aerobic bioreactor operations by imposing the anaerobic bioreactor emissions requirements on aerobic bioreactor landfills. Two of these commenters provide references to available literature on MSW composting. They suggested that controls for aerobic bioreactor landfills may be warranted, although one of these commenters concluded that there is not enough scientifically valid data to develop a MACT standard for aerobic bioreactor landfills. Five other commenters agreed there is limited data, especially HAP emissions data, and believe it is important to exclude aerobic bioreactors at this time.

Response: The references provided for composting operations are not applicable because composting of MSW is not the same as operating an aerobic bioreactor within a MSW landfill. We know of no full scale aerobic bioreactors in operation in the United States, and an insufficient amount of aerobic landfill data are available to properly characterize HAP emissions from aerobic bioreactors. We expect a significant number of aerobic bioreactors will not be built in the next several years (in contrast to the trend for anaerobic bioreactors). For these reasons, we have determined that it is not appropriate to include aerobic bioreactors in the bioreactor definition or related timing requirements. Portions of a landfill that are operated as aerobic bioreactors would continue to be subject to the EG/NSPS and the final rule requirements for conventional landfills. Under section 112(f) of the CAA, we will evaluate residual risks and promulgate standards to address residual risks within 8 years of promulgation of the final rule. In addition, section 112(d)(6) requires review of the final rule every 8 years. At that time, we will consider any new information on the prevalence and emissions of aerobic bioreactors to determine if additional requirements are necessary.

Comment: Four commenters questioned the reliability of the available mercury data. Some commenters quoted mercury emissions tests that showed mercury emissions from MSW landfills to be insignificant.

Response: We considered data from a number of studies, including one specifically mentioned by the commenters, prior to proposal. We found insufficient data to adequately characterize the concentrations of mercury in landfill gas or determine their significance. Based on the available information, we concluded that the MACT floor for mercury is no emissions reductions and because there are no alternatives above that floor, the MACT standard is also no reduction in emissions.

Comment: Other commenters wrote in support of the cooperative efforts of EPA and the Environmental Research and Education Foundation to conduct tests for HAP metals such as mercury in landfill gas and emissions from gas combustion. The commenters suggested waiting until the test results are complete before making any decision on mercury controls. Another commenter also asked us to clarify the level of mercury emissions from MSW landfill gas and requested that we investigate beyond-the-floor control options.

Response: We find that the currently available data support the promulgation of the rulemaking without a mercury emissions limit. Because there are no control devices, pollution prevention practices or other techniques to reduce landfill mercury emissions, we could not identify any beyond-the-floor control options, and we consider the MACT for new and existing landfills to be no reduction in mercury emissions.

Comment: A commenter recommended that we delete the requirement mandating that area sources be required to obtain a title V permit and instead allow part 60 to address the permitting of area source landfills. The commenter further suggested that if we retain the requirement of permitting area source landfills, that we justify why area source landfills must be permitted.

Response: In response to that comment, title V requirements included in § 63.1935 at proposal have been deleted. We further respond that section 502(a) of the CAA requires any source, including an area source, subject to standards or regulations under section 111 or 112 of the CAA to operate in compliance with a title V permit after the effective date of any title V permits program. This section states that the Administrator may promulgate regulations to exempt one or more source categories, in whole or in part, from the requirements of the section if the Administrator finds that compliance with title V requirements is impracticable, infeasible, or unnecessarily burdensome on such categories. Thus, we do not need to justify requiring title V permits. The CAA mandates criteria that must be met to justify an exemption for any category of sources. According to section 502(a), however, the Administrator may not exempt any major source from the requirements of title V.

Although section 502(a) requires that area sources subject to regulations under section 111 or 112 be permitted unless the test in this section is met (i.e., the Administrator finds that compliance with title V permitting requirements is impracticable, infeasible, or unnecessarily burdensome), we are not applying this test to the landfills NESHAP. 1 Rather, consistent with what the commenter suggested, EPA is allowing the EG/NSPS for MSW landfills to address the permitting requirements for area source landfills. This approach is justified because the same universe of area source landfills would have been required to apply for a title V permit under the final rule (if the final rule were promulgated as proposed) as is currently subject to title V permitting requirements under the NSPS for landfills and whatever plan is used to implement 40 CFR part 60, subpart Cc in an area (i.e., an EPA approved and effective section 111(d) State or tribal plan for landfills or the landfills Federal plan (40 CFR part 62, subpart GGG)). Moreover, most area source landfills which have a design capacity equal to or greater than 2.5 million Mg and 2.5 million m 3 have already been required to apply for a title V permit due to either the NSPS for landfills, an EPA approved and effective section 111(d) State or tribal plan for landfills, or the landfills Federal plan. See 40 CFR 60.752(c), 60.32c(c), and 62.14352(e). See also the “Clarification of Title V Permitting Requirements” section of the EG/NSPS direct final rule amendments for MSW Landfills (63 FR 32743, 32746, June 16, 1998). In fact, unless the owner/operator of a MSW landfill only recently commenced construction of the landfill and has not yet been required to file a design capacity report (which the NSPS requires within 90 days after the owner/operator commences construction), all area source landfills of the design capacity noted above and which meet the definition of new or existing under the EG/NSPS should have already applied for a title V permit. As a result, EPA believes that it is unnecessary for area sources to be required to apply for a title V permit as a result of the landfills NESHAP.

If a MSW landfill is a major source or is a part of a major source as defined under one or more of title V's three major source definitions (section 112, section 302, and part D of title I of the CAA), 2 a title V application from such a source may be due even earlier than the deadlines established by 40 CFR part 60, subpart WWW, any EPA approved and effective section 111(d) State or tribal plan, or the landfills Federal plan. When a source is subject to title V for more than one reason (e.g., meeting the title V applicability criteria in subpart WWW as well as having the potential to emit one or more pollutants at major source levels), the 12-month timeframe (or earlier if required by the title V permitting authority) for submitting a title V application is triggered by the requirement which first causes the source to become subject to title V. See CAA section 503(c) and 40 CFR 70.3(a) and (b), 70.5(a)(1), 71.3(a) and (b), and 71.5(a)(1). See also the “Clarification of Title V Permitting Requirements” section of the EG/NSPS direct final rule for MSW Landfills (63 FR 32743, 32746, June 16, 1998). 3

You may be potentially affected by this action if you are a federal or state government agency involved in administration of environmental quality programs. Potentially affected entities may include, but are not limited to:

Federal or State Government Entity, (NAICS 9241), i.e., Department of Agriculture, Environment, etc.

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

1. Docket . EPA has established an official public docket for this action under docket identification (ID) number OPP-2002-0336. 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. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. Once in the system, select “search,” then key in the appropriate docket ID number.

EPA published final rules in the Federal Register for each chemical/commodity listed. The initial issuance of these final rules announced that EPA, on its own initiative, under section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) was establishing time-limited tolerances.

EPA established the tolerances because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18 . Such tolerances can be established without providing notice or time for public comment.

EPA received requests to extend the use of these chemicals for this year's growing season. After having reviewed these submissions, EPA concurs that emergency conditions exist. EPA assessed the potential risks presented by residues for each chemical/commodity. In doing so, EPA considered the safety standard in section 408(b)(2) of FFDCA, and decided that the necessary tolerance under section 408(l)(6) of FFDCA would be consistent with the safety standard and with FIFRA section 18.

The data and other relevant material have been evaluated and discussed in the final rule originally published to support these uses. Based on that data and information considered, the Agency reaffirms that extension of these time-limited tolerances will continue to meet the requirements of section 408(l)(6) of FFDCA. Therefore, the time-limited tolerances are extended until the date listed. EPA will publish a document in the Federal Register to remove the revoked tolerances from the Code of Federal Regulations (CFR). Although these tolerances will expire and are revoked on the date listed, under section 408(l)(5) of FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on the commodity after that date will not be unlawful, provided the residue is present as a result of an application or use of a pesticide at a time and in a manner that was lawful under FIFRA, the tolerance was in place at the time of the application, and the residue does not exceed the level that was authorized by the tolerance. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Tolerances for the use of the following pesticide chemicals on specific commodities are being extended:

1. 2,4-D . EPA has authorized under FIFRA section 18 the use of 2,4-D on wild rice for control of water plantain in Minnesota. This regulation extends time-limited tolerances for residues of the herbicide 2,4-dichlorophenoxyacetic acid and its metabolites in or on wild rice at 0.1 parts per million (ppm) for an additional 3-year period. This tolerance will expire and is revoked on December 31, 2005. A time-limited tolerance was originally published in the Federal Register of September 5, 1997 (62 FR 46900) (FRL-5738-9).

2. Bifenthrin . EPA has authorized under FIFRA section 18 the use of bifenthrin on citrus for control of weevils in Texas and Florida. This regulation extends time-limited tolerances for residues of the insecticide bifenthrin in or on citrus, dried pulp and citrus, oil at 0.3 parts per million (ppm) for an additional 2-year period. This tolerance will expire and is revoked on December 31, 2004. A time-limited tolerance was originally published in the Federal Register of December 16, 1998 (63 FR 69200) (FRL-6048-1).

3. N-(4-fluorophenyl)-N-(1-methylethyl)-2-[[5-(trifluoromethyl)-1,3,4-thiadiazol-2-yl]oxy]acetamide. EPA has authorized under FIFRA section 18 the use of N -(4-fluorophenyl)- N -(1-methylethyl)-2-[[5-(trifluoromethyl)-1,3,4-thiadiazol-2-yl]oxy]acetamide on wheat and triticale for control of ryegrass in Idaho, Oregon, and Washington. This regulation extends a time-limited tolerance for combined residues of the herbicide N -(4-fluorophenyl)- N -(1-methylethyl)-2-[[5-(trifluoromethyl)-1,3,4-thiadiazol-2-yl]oxy]acetamide and its metabolites containing the 4-fluoro- N -methylethyl benzenamine moiety in or on wheat grain at 1 ppm, wheat forage at 10 ppm, wheat hay at 2 ppm, wheat straw at 0.5 ppm, meat and fat of cattle, goats, horses, hogs, and sheep at 0.05 ppm, meat byproducts (other than kidney) of cattle, goats, horses, hogs, and sheep at 0.10 ppm and kidney of cattle, goats, horses, hogs, and sheep at 0.50 ppm for an additional 1-year, 11 months. These tolerances will expire and are revoked on June 30, 2005. Time-limited tolerances were originally published in the Federal Register of August 6, 1999 (64 FR 42839) (FRL-6091-9).

4. Fenhexamid . EPA has authorized under FIFRA section 18 the use of fenhexamid on pears for control of gray mold in California. This regulation extends a time-limited tolerance for residues of the fungicide fenhexamid, ( N -2,3-dichloro-4-hydroxyphenyl)-1-methyl cyclohexanecarboxamide in or on pears at 15 ppm for an additional 2-year period. This tolerance will expire and is revoked on December 31, 2004. A time-limited tolerance was originally published in the Federal Register of November 21, 2000 (65 FR 69876) (FRL-6752-4)

EPA has received objections to tolerances it established for 2,4-D, and fenhexamid on different food commodities. The objections were filed by the Natural Resources Defense Council (NRDC) and raised several issues regarding aggregate exposure estimates and the additional safety factor for the protection of infants and children. Although these objections concern separate rulemaking proceedings under the FFDCA, EPA has considered whether it is appropriate to extend the emergency exemption tolerances for 2,4-D, and fenhexamid while the objections are still pending.

Factors taken into account by EPA included how close the Agency is to concluding the proceedings on the objections, the nature of the current action, whether NRDC's objections raised frivolous issues, and extent to which the issues raised by NRDC had already been considered by EPA. Although NRDC's objections are not frivolous, the other factors all support extending these tolerances at this time. First the objections proceeding is unlikely to conclude prior to when action is necessary on this petition. NRDC's objections raise complex legal, scientific, policy, and factual matters and EPA initiated a 60-day public comment period on them in the Federal Register of June 19, 2002 (67 FR 41628) (FRL-7167-7). That comment period was extended until October 16, 2002 (September 17, 2002, 67 FR 58536) (FRL-7275-3), and EPA is now examining the extensive comments received. Second the nature of the current actions are extremely time-sensitive as they address emergency situations. Third the issues raised by NRDC are not new matters but questions that have been the subject of considerable study by EPA and comment by stakeholders. Accordingly, EPA is proceeding with extending the tolerances for 2,4-D, and fenhexamid.

5. Lambda-Cyhalothrin . EPA has authorized under FIFRA section 18 the use of lambda-cyhalothrin on barley for control of the Russian wheat aphid and cutworms in Idaho, Colrado, Wyoming, and Montana. This regulation extends a time-limited tolerance for combined residues of the pyrethroid lambda-cyhalothrin, 1:1 mixture of (S)-α-cyano-3-phenoxybenzyl-(Z)-(1R,3R)-3-(2-chloro-3,3,3-trifluoroprop-1-enyl)-2,2-dimethylcyclopropanecarboxylate and (R)-α-cyano-3-phenoxybenzyl-(Z)-(1S,3S)-3-(2-chloro-3,3,3-trifluoroprop-1-enyl)-2,2-dimethylcyclopropanecarboxylate and its epimer expressed as epimer of lambda-cyhalothrin, a 1:1 mixture of (S)-α-cyano-3-phenoxybenzyl-(Z)-(1S,3S)-3-(2-chloro-3,3,3-trifluoroprop-1-enyl)-2,2-dimethylcyclopropanecarboxylate and (R)-α-cyano-3-phenoxybenzyl-(Z)-(1R,3R)-3-(2-chloro-3,3,3-trifluoroprop-1-enyl)-2,2-dimethylcyclopropanecarboxylate in or on barley grain at 0.05 ppm, barley bran at 0.2 ppm, and barley hay and straw at 2.0 ppm for an additional 3-year period. These tolerances will expire and are revoked on December 31, 2005. Time-limited tolerances were originally published in the Federal Register of October 29, 1997 (62 FR 56095) (FRL-5745-5)

6. Mancozeb . EPA has authorized under FIFRA section 18 the use of mancozeb on ginseng for control of stem and leaf blight in Wisconsin. This regulation extends a time-limited tolerance for combined residues of the fungicide mancozeb, calculated as zinc ethylenebisdithiocarbamate, and its metabolite ethylenethiourea (ETU) in or on ginseng at 2.0 ppm for an additional 2-year period. This tolerance will expire and is revoked on December 31, 2004. A time-limited tolerance was originally published in the Federal Register of October 9, 1998 (63 FR 54362) (FRL-6029-5)

7. Sodium chlorate . The state of Arkansas availed itself of the authority to declare the existence of a crisis situation, thereby authorizing use under FIFRA section 18 of sodium chlorate on wheat as a defoliant or desiccant to aid in the harvest of wheat. This regulation extends a time-limited exemption from the requirement of a tolerance for residues of the defoliant/desiccant sodium chlorate in or on wheat for an additional 2-year period. This exemption from the requirement of a tolerance will expire and is revoked on December 31, 2004. A time-limited exemption from the requirement of a tolerance was originally published in the Federal Register of December 3, 1997 (62 FR 63858) (FRL-5754-1)

8. Spinosad . EPA is authorizing under FIFRA section 18 the use of spinosad on all agricultural commodities when applied in connection with quarantine eradication programs directed by state agricultural officials for control of quarantined fruit fly species, such as the Mediterranean fruit fly in California. This regulation extends a time-limited tolerance for residues of the insecticide spinosad, Factor A is 2-[(6-deoxy-2,3,4-tri-O-methyl-o-L-mannopyranosyl)oxy]-13-[[5-(dimethlamino)-tetrahydro-6-methyl-2H-pyran-2-yl]oxy]9-ethyl-2,3,3a,5a,6,9,10,11,12,13,14,16a, 6b,tetradecahydro-14-methyl-1H-as-Indaceno[3,2d]oxacyclododecin-7,15-dione. Factor D is 2-[6-deoxy-2,3,4-tri-O-methyl-o-L-mannopyranosyl)oxy]13-[[5-(dimethylamino)-tetrahydri-6-methyl-2H-pyran-2-yl]oxy]-9-ethyl-2,3,3a,5a,5b,6,9,10,11,12,13,14,16a,16b-tetradecahydro-4,14,dimethyl-1H-as-Indaceno[3,2d]oxacyclododecin-7,15-dione, in or on all agricultural commodities where a separate higher tolerance is not already established at 0.02 ppm for an additional 4-year period. This tolerance will expire and is revoked on December 31, 2006. A time-limited tolerance was originally published in the Federal Register of July 21, 1999 (62 FR 39053) (FRL-6086-7)

9. Spinosad . EPA has authorized under FIFRA section 18 the use of spinosad on alfalfa for control of armyworms in Texas and New Mexico and pastureland and rangeland for control of armyworms in Arkansas, Mississippi, Texas, Tennessee and Georgia. This regulation extends time-limited tolerances for combined residues of the herbicide spinosad, Factor A is 2-[(6-deoxy-2,3,4-tri-O-methyl-o-L-mannopyranosyl)oxy]-13-[[5-(dimethlamino)- tetrahydro-6-methyl-2H-pyran-2-yl]oxy]9-ethyl-2,3,3a,5a,6,9,10,11,12,13,14,16a, 6b,tetradecahydro-14-methyl-1H-as-Indaceno[3,2d]oxacyclododecin-7,15-dione. Factor D is 2-[6-deoxy-2,3,4-tri-O-methyl-o-L-mannopyranosyl)oxy]13-[[5-(dimethylamino)-tetrahydri-6-methyl-2H-pyran-2-yl]oxy]-9-ethyl-2,3,3a,5a,5b,6,9,10,11,12,13,14,16a,16b-tetradecahydro-4,14,dimethyl-1H-as-Indaceno[3,2d]oxacyclododecin-7,15-dione in or on alfalfa forage at 4.0 ppm; alfalfa hay at 4.0 ppm; cattle fat at 15.0 ppm; cattle, meat byproducts at 3.50 ppm; cattle meat at 0.60 ppm; egg at 0.030 ppm; goat fat at 15.0 ppm; goat meat byproducts at 3.50 ppm; goat meat at 0.60 ppm; grass forage at 7.0 ppm; grass hay at 7.0 ppm; hog fat at 15.0 ppm; hog meat byproducts at 3.50 ppm; hog meat at 0.60 ppm; horse fat at 15.0 ppm; horse meat byproducts at 3.50 ppm; horse, meat at 0.60 ppm; sheep fat at 15.0 ppm; sheep meat byproducts at 3.50 ppm; and sheep meat at 0.60 ppm for an additional 3-year period. These tolerances will expire and are revoked on December 31, 2005. A time-limited tolerance was originally published for sunflowers in the Federal Register of January 9, 2001 (66 FR 1592) (FRL-6760-2).

10. Sulfentrazone . EPA has authorized under FIFRA section 18 the use of sulfentrazone on horseradish for control of weeds in Wisconsin, Minnesota, and Illinois; sugarcane for control of weeds in Louisiana; and sunflowers for control of weeds in Montana, North Dakota, Minnesota, Wyoming, Texas, Nebraska, Oklahoma, Missouri, South Dakota, Kansas, and Colorado. This regulation extends a time-limited tolerance for combined residues of the herbicide sulfentrazone, N -[2,4-dichloro-5-[4-(difluoromethyl)-4,5-dihydro-3-methyl-5-oxo-1H-1,2,4-triazol-1-yl]phenyl]methanesulfonamide, and its metabolites 3-hydroxymethyl sulfentrazone (HMS) and 3-desmethyl sulfentrazone (DMS) in or on horseradish, roots at 0.1 ppm, sugarcane at 0.05 ppm, and sunflower at 0.1 ppm for an additional 3-year period. These tolerances will expire and are revoked on December 31, 2005. A time-limited tolerance was originally published for sunflowers in the Federal Register of September 21, 1999 (64 FR 51060) (FRL-6097-8). Time-limited tolerances were originally published for horseradish and sugarcane in the Federal Register of November 9, 2000 (65 FR 67272) (FRL-6751-7).

11. Tebufenozide . EPA has authorized under FIFRA section 18 the use of tebufenozide on sweet potatoes for control of armyworms in Mississippi, Louisiana, and North Carolina. This regulation extends a time-limited tolerance for residues of the insecticide tebufenozide, benzoic acid, 3,5-dimethyl-1-(1,1-dimethylethyl)-2-(4-ethylbenzoyl)hydrazide in or on sweet potatoes at 0.25 ppm for an additional 3-year period. This tolerance will expire and is revoked on December 31, 2005. A time-limited tolerance was originally published in the Federal Register of December 18, 1998 (63 FR 70030) (FRL-6049-4)

12. Zinc phosphide . EPA has authorized under FIFRA section 18 the use of zinc phosphide on timothy, alfalfa, and clover for control of vole complex in Washington. This regulation extends time-limited tolerances for residues of the rodenticide zinc phosphide in or on alfalfa (forage and hay); clover (forage and hay); and timothy (forage, hay and seed) at 1; 0.1; and 0.1 ppm, respectively, for an additional 3-year period. These tolerances will expire and are revoked on December 31, 2005. Time-limited tolerances were originally published in the Federal Register of August 25, 1998 (63 FR 45176) (FRL-6021-6) and February 23, 2000 (65 FR 8872) (FRL-6489-8).

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) of the FFDCA provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d) of the FFDCA, as was provided in the old sections 408 and 409 of the FFDCA. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2002-0336 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before February 18, 2003.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900C), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Rm.104, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (703) 603-0061.

2. Tolerance fee payment . If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.1. Mail your copies, identified by docket ID number OPP-2002-0336, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.1. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes time-limited tolerances under section 408 of the FFDCA. The Office of Management and Budget (OMB) has exempted these types of actions from review 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, 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 tolerances and exemptions that are established under section 408(l)(6) of the FFDCA in response to an exemption under FIFRA section 18, such as the tolerances in this final rule, do 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 final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. 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).

EPA Region 6 is publishing this direct final notice of deletion of the ATSF Clovis, Superfund Site from the NPL.

The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in the § 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for remedial actions if conditions at a deleted site warrant such action.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective March 17, 2003 unless EPA receives adverse comments by February 18, 2003 on this document. If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely withdrawal of this direct final deletion before the effective date of the deletion and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the ATSF Clovis, Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete a Site from the NPL, EPA shall consider, in consultation with the State, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. all appropriate Fund-financed (Hazardous Substance Superfund Response Trust Fund) response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the deleted site above levels that allow for unlimited use and unrestricted exposure, CERCLA section 121(c), 42 U.S.C. 9621(c) requires that a subsequent review of the site be conducted at least every five years after the initiation of the remedial action at the deleted site to ensure that the action remains protective of public health and the environment. If new information becomes available which indicates a need for further action, EPA may initiate remedial actions. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Site:

(1) The EPA consulted with the State of New Mexico on the deletion of the Site from the NPL prior to developing this direct final notice of deletion.

(2) The State of New Mexico concurred with deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final notice of deletion, a notice of the availability of the parallel notice of intent to delete published today in the “Proposed Rules” section of the Federal Register is being published in a major local newspaper of general circulation at or near the Site and is being distributed to appropriate federal, state, and local government officials and other interested parties; the newspaper notice announces the 30-day public comment period concerning the notice of intent to delete the Site from the NPL.

(4) The EPA placed copies of documents supporting the deletion in the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely notice of withdrawal of this direct final notice of deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the Site from the NPL:

The ATSF Clovis Superfund Site is locally known as the Santa Fe Lake. The affected site is a natural playa lake originally owned by Atchison, Topeka and Santa Fe Railway Company (AT&SF). As a result of a merger, Burlington Northern Santa Fe Railway Company (BNSF) now owns and operates the site and is the potentially responsible party (PRP). The ATSF Clovis site is approximately 140 acres in size and is located approximately one mile south of the BNSF railyard in Clovis, Curry County, New Mexico.

The playa lake is approximately 40 acres in size and is located near the center of the site. Surrounding land use is primarily agricultural in nature, with a small residential area located to the east of the site. Over the years, storm water run-off and wastewater discharge from the railyard was directed to the lake. Wastewater generating sources at the railyard have included hopper car washing operations, boiler blow downs, sanitary sewers, and the oil/water separators at the diesel fueling racks. Although the railyard was constructed in the early 1900's, the majority of the discharge to the lake occurred between 1962 and 1982. Investigations of the lake water and underlying sediments were performed from 1979 to 1982 by EPA and AT&SF. In November 1981, the site was proposed for the National Priorities List (NPL). In September 1983, the site was listed on the NPL as “ATSF (Clovis)” with a Hazard Ranking System score of 33.62.

A Remedial Investigation (RI) of the site was conducted in 1987 and 1988 and included analyses of soil, sediment, lake water and ground water samples. Four wells were installed surrounding the lake for monitoring the ground water in the immediate vicinity of the lake. Additional samples were collected from water supply wells in the area for statistical comparison to the sample collected from the on-site wells.

Soil, sediment, lake water, and ground water samples were analyzed for the parameters listed in the Administrative Order on Consent (Consent Order) issued in 1983. The RI report was finalized in August 1988. The RI listed the parameters of potential concern (those compounds present above background values), as follows:

Soils: Barium; Boron; Chloride; Hydrocarbons; Phenolics; Sulfate;

Sediments: Boron; Chromium; Hydrocarbons; Lead; Phenolics; Total Organic Carbon;

Lake Water: Arsenic; Boron; Cadmium; Chromium; Fluoride; Lead; Phenolics; Total Dissolved Solids; Total Organic Carbon

Ground Water: Calcium; Chloride; Fluoride; Magnesium; Sodium; Sulfate; Total Dissolved Solids; Total Organic Carbon; Total Alkalinity; Bicarbonate; Conductivity.

Background values were determined through collection and analysis of ground water samples from area wells, lake water samples from area playa lakes and soil samples from unaffected areas at the site. A comparison of analytical results from the various samples collected at the site to the background analytical results was presented in the RI.

The range of concentrations of chromium and hydrocarbons in samples collected for the RI were as follows:

Subsequent sampling of soils and sediments was performed to speciate the chromium and hydrocarbons. The analytical results of the subsequent sampling were used to refine the health risk assessment, which confirmed that the only potential health risk pathway was through inhalation of wind-blown dust. These results were presented in an addendum to the RI report dated September 1988.

Additional ground water sampling occurred following submittal of the RI report, at the request of the New Mexico Environmental Improvement Division (NMEID). The results of the additional sampling indicated that several monitored parameters were statistically higher in the on-site wells when compared to the background wells. However, none of the parameters were found to present a health risk. Therefore, it was determined that ground water remediation was not required. These results were presented in a second addendum to the RI report dated November 1988.

A Feasibility Study (FS) was conducted in conjunction with the RI in July 1988. The remedial alternatives focused on remediation of soils and sediments to remove the potential health risk through inhalation of wind-blown dust. Because any action involving the lake bottom sediments would require prior removal of water from the lake, management and remediation of the lake water was also a component of the remedial alternatives addressed in the FS. Since the addendums to the RI did not change any conclusions drawn in the RI and did not add any contaminants of concern to the remedial action required, no revision to the FS was required.

An analysis of health and environmental effects was performed as part of the RI. This analysis evaluated each potential parameter of concern for health and environmental effects. It was determined that the following parameters had the potential to pose a health risk:

Soils: Barium; Hydrocarbons; Phenolics;

Sediments: Chromium; Hydrocarbons; Lead; Phenolics

Lake Water: Arsenic; Cadmium; Chromium; Lead; Phenolics;

None of the parameters detected in ground water were determined to pose a risk to human health and thus ground water was eliminated as a possible human exposure pathway. An evaluation of the risk to human health through the remaining exposure pathways was conducted for those parameters that had a potential to pose a health risk. The evaluation indicated that the only constituents found in the lake water, lake bottom sediments, and surrounding soils that had a potential health risk were chromium and hydrocarbons through inhalation of wind-blown dust.

On September 23, 1988, the Regional Administrator approved a Record of Decision (ROD), which summarized the findings of the RI and FS and stated what the selected remedial action included. The ROD identified the major concern for this site was the potential threat to the ground water. The ROD further stated that the results of the RI data were reviewed and EPA determined that the lake did not pose a current threat to the City water supply, but may pose a future threat if the source of contamination is not eliminated. An additional concern was stated about reduction in the water level in the lake, resulting in an increased risk from inhalation of dust produced from exposed sediments. Therefore, the following elements were selected for remedial action:

• Lake Water—Pumping, Evaporation and Disposal of Residue;

• Sediments—Dredge, On-site Biodegradation, Cap Land Treatment Area and Revegetation of Dredged Areas; and,

• Soil—In-situ Biodegradation and Revegetation.

The selected remedy resulted in the removal of the lake water (through evaporation), the removal or reduction of hydrocarbons (through biodegradation and landfarming), and isolation of metals (through placement in a capped treatment area). Thus, the selected remedy addressed both objectives (removal of future threat to ground water and removal of exposure via inhalation of wind-blown dust). Criteria to evaluate the effectiveness of the selected remedy were developed subsequent to the ROD.

The selected remedy was implemented through use of a phased approach. The remedy included biodegradation of hydrocarbons through landfarming to treat the soil and sediments. A pilot study was conducted during the summer of 1991 to determine the parameters required to produce maximum degradation of contaminants. Because the primary contaminant of concern was petroleum hydrocarbons, biodegradation through landfarming was known to be effective. The focus of the pilot study was to determine the optimum mixture of water, air, nutrients, and microorganisms. The results of the pilot study indicated that there was no significant increase in biodegradation through the addition of commercially developed microorganisms and that the microorganisms present at the site were sufficient to produce effective removal of contaminants.

The biodegradation of soils and sediments began in June 1992 and continued until October 1999. The volume of lake bottom sediments treated was 57,245 cubic yards and the volume of soils treated was 125,235 cubic yards. All of the sediments were treated and placed in the On-site Storage Facility (OSF). Of the soil treated, 86,515 cubic yards met the cleanup criteria and remained in place while 38,720 cubic yards met the stabilization criteria (which is above the cleanup criteria) and was placed in the OSF for final storage. The design included the use of a dike and moat system to prevent surface water run-on into the lake basin area to allow for evaporation of the lake water and prevent surface water run-on to the treatment areas. The remedy design also incorporated the use of a spray evaporation system. The purpose of the system was to collect lake water and run-off from the treatment irrigation system and to route that water through fine mist spray nozzles to enhance evaporation.

The ROD stated that the lake water would be sprayed over the 26-acre beach area for evaporation. During the final remedial design, it was determined that evaporation would be more effective through a evaporation system that allow for continued management of storm water and irrigation water run-off throughout the bioremediation phase. Three treatment areas, divided into eleven treatment sections, were designated in order to optimize and track treatment of contaminated materials. Each beach treatment area was approximately 2.25 acres in size. To provide adequate moisture for treatment within each of the treatment sections, three separate irrigation systems were designed and installed. In addition, the irrigation system for bioremediation, also provided adequate moisture for purposes of dust control.

On-site Storage Facility —The OSF was designed to hold all treated sediments and any treated soils that stabilized prior to meeting the cleanup criteria. The Land Treatment Area described in the ROD was refined and referred to as the OSF. The primary differences between the OSF and the Land Treatment Area described in the ROD are:

• The impermeable layer of the cap was changed to high-density polyethylene (HDPE) rather than poly-vinyl chloride (PVC) due to its better durability and applicability to the site conditions.

• The depth of the excavated floor of the OSF and the height of the containment dikes were expanded beyond those of the Land Treatment Area but did not significantly change the purpose or effectiveness of the OSF. The modification incorporated a refined estimate of the volume of sediments present in the lake bottom.

Additionally, the development of a cleanup standard for the site allowed in-situ treatment of some soils. Treated soils that met the cleanup standard remained in place within the former lake basin and beach areas.

The volume of the OSF was calculated to hold all of the treated sediments and any treated soils that did not meet the cleanup criteria. An area approximately 5 acres in size was excavated to 5 feet below grade at a slope of approximately 2 percent. Following treatment and placement of all materials to be held in the OSF, the design required the OSF to be capped. The cap was designed to consist of an HDPE liner to provide an impermeable layer, with an overlying geotextile to provide for drainage of infiltrated liquids away from the liner, followed by a 12-inch soil protective layer, covered by 6 inches of topsoil. The design required vegetation of the topsoil layer with native grasses. Construction of the OSF, with the exception of the cap, was completed in May 1993.

Sediments were treated within the OSF beginning in September 1993, following placement of a layer of treated soils to provide a “bioseed” of microbial organisms to enhance treatment. Treated sediments remained in place within the OSF, with subsequent layers of sediments applied for additional treatment. Throughout the treatment phase, treated soils that met the stabilization criteria were placed in the OSF. Treatment of all sediments and soils was completed in October 1999. As stated previously, a total of 57,245 cubic yards of treated sediment and 38,720 cubic yards of treated soil that met the stabilization criteria is stored in the OSF.

Closure of the OSF, as well as the rest of the site, began in June 2000. Any soils that met the stabilization criteria that had not already been placed in the OSF were moved to the OSF at this time. As per the design for site restoration, construction debris removed from the treatment areas was buried within the OSF. A layer of clean soil was placed on top of the treated material and buried debris to provide a stable base for the cap. The OSF was capped as described above and construction of the cap was completed in October 2000.

• Definition of the cleanup level of 1,000 mg/kg total recoverable petroleum hydrocarbons (TRPH);

• Definition of a stabilization criteria (less than 10 percent degradation in any two of three consecutive confirmation sampling events);

• Contaminated soils were defined as materials that are firm and coarse-grained, containing TRPH above 1,000 mg/kg;

• Sediments were defined as materials that are soft and fine-grained, located within the 4212 elevation contour present at the start of treatment;

• Layout of treatment areas within the original beach area and, later, within the original lake basin;

• Definition of the active biodegradation season as March 1 through October 31 of each treatment year;

• Method of biodegradation (aeration of soil through weekly use of disc or till-oll, maintaining moisture content between 15 and 25 percent, maintaining pH near neutral, and maintaining proper nutrient levels);

• Construction of the OSF to store all treated sediments and soils that were treated, but contained TRPH above 1,000 mg/kg (the OSF was a refinement of the Land Treatment Area discussed in the ROD);

• Addition of the option to treat sediments on top of previously treated soils, or in the OSF, rather than only in the “treatment area” referenced in the ROD, with a requirement that confirmation sampling of the underlying previously treated soils be conducted following treatment of the sediments; and

• Specific sampling procedures for tracking of biodegradation.

• The remedial action to address chromium (trivalent chromium) was to isolate the sediments within the OSF.

• Confirmatory sampling was performed throughout the remediation process.

Restoration of the Site —The design included removal of the upper portion of the run-on control dike, removal of the spray evaporation system, removal of the irrigation systems, and grading of the former lake basin area to drain. The ROD stated that the moat would be filled with the material from the run-on control dike. However, the U.S. Fish and Wildlife Service (USFWS) reviewed the design for restoration as the lead trustee for a Natural Resources Damages claim filed for this site. During the review process, the USFWS requested that the moat remain in place to intercept rainfall run-off from the surrounding watershed and minimize the volume of water ponding within the former lake basin. This request was incorporated into the final restoration design, along with covering the lowest portion of the basin with approximately 6 inches of clean soil. These alterations assured the USFWS that the potential for exposure of wildlife to low-level contaminants (below the cleanup standard) would be minimized.

BNSF and the trustees reached oral agreement on the basic terms of the Natural Resource Damages Claim, including cash settlement. The parties have exchanged drafts of the settlement documents and expect to agree upon the settlement documents, including a Consent Decree, during 2002. The Consent Decree must then be entered by the U.S. District Court for the District of New Mexico.

The restoration design included vegetation of disturbed areas with native grasses. A center-point irrigation system was originally designed to provide maximum coverage of the former lake basin, dike and moat areas during bioremediation treatment, but is currently being used for site restoration. The restoration design included a planting schedule and provisions to re-seed if the vegetation was not sufficiently established following the initial planting.

The monitoring program for the bioremediation phase of the remedial action included treatment monitoring and compliance monitoring. The treatment monitoring portion of the program included:

• Analyzing soil or sediment samples from each treatment area for hydrocarbons to determine the progress of bioremediation within that area;

• Analyzing soil or sediment samples from each treatment area for nutrients to determine if nutrient amendments (addition of fertilizer) was required; and

• Measurements of soil moisture in each treatment area to determine if irrigation was required.

The compliance monitoring portion of the program included:

• Analyzing soil core samples collected from 5 feet below the beach and lake treatment areas for all contaminants of concern to determine if migration of contaminants was occurring as a result of treatment processes; and

• Analyzing ground water samples collected from on-site wells to determine if any impact on ground water occurred as a result of treatment processes.

The analysis of health and environmental effects performed as part of the RI showed that the only contaminants of concern were hydrocarbons and chromium. However, the compliance monitoring program included additional contaminants that might potentially pose a health risk. The contaminants included in the compliance monitoring program were: Arsenic; Barium; Cadmium; Chromium; Lead; Hydrocarbons; and Phenolics.

Chloride was included in the monitoring program at the request of the New Mexico Environment Department because it was present above the secondary drinking water standard. Other parameters listed in the Consent Order were boron, fluoride, sulfate, total dissolved solids, and total organic carbon. These parameters were demonstrated not to be of concern during the RI/FS phase and were not included in the monitoring program.

The ROD required that ground water monitoring would continue after the completion of treatment.

BNSF will perform O&M activities at the site, including routine inspections, maintenance of the site fence, maintenance of vegetation, maintenance of the OSF cap, and ground water monitoring with EPA oversight.

To fully assess the impermeability of the OSF cap, two additional monitoring wells will be installed this fall: one immediately up-gradient of the OSF and one immediately down-gradient of the OSF. These wells will be sampled on the same schedule as the other site wells for the same parameters.

BNSF will limit access to the OSF at all times. BNSF will institute a covenant to prevent installation of water supply wells or any construction activities within the limits of the OSF. The covenant is not a requirement of the ROD and is a voluntary agreement between BNSF and EPA as part of the Operation and Maintenance Plan for the site.

Consistent with section 121(c) of CERCLA and requirements of the OSWER Directive 9355.7-03B-P, (“Comprehensive Five-Year Review Guidance,” June 2001), a five-year review will be conducted at this site. The directive requires EPA to conduct statutory five-year reviews at sites where, upon attainment of ROD cleanup levels, hazardous substances remaining within restricted areas onsite will not allow unlimited use of the entire site.

Since hazardous substances remain onsite, this Site is subject to five-year reviews to ensure the continued protectiveness of the remedy. Based on the five-year results, EPA will determine whether human health and the environment continues to be adequately protected by the implemented remedy. The first five-year review was completed on September 30, 1998. The next Five-Year Review will be completed no later than September 30, 2003.

Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion from the NPL are available to the public in the information repositories.

The EPA, with concurrence of the State of New Mexico, has determined that all appropriate responses under CERCLA have been completed, and that no further response actions, under CERCLA, other than O&M and five-year reviews, are necessary. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective March 17, 2003 unless EPA receives adverse comments by February 18, 2003. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and it will not take effect . The EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

1. On December 3, 2002, the OnStar Corporations (OnStar) filed a Petition for Ruling (Declaratory Ruling Petition), seeking clarification that (1) embedded telematics units are not “handsets” as that term is used in the Commission's orders in CC Docket No. 94-102, and (2) such units are not included in calculating the wireless licensee's E911 Phase II handset activation compliance requirements.

2. In the Wireless E911 Third Report and Order, the Commission adopted rules that imposed requirements on wireless carriers who employ a Phase II location technology requiring new, modified or upgraded handsets (such as Global Positioning Systems (GPS)-based technologies). (64 FR 60126, November 4, 1999.) These requirements included deployment schedules, penetration rates, interoperability criteria, and standards for Phase II location accuracy and reliability. The Wireless E911 Third Report and Order also amended § 20.3 of the Commission's rules to define location-capable handsets as “portable or mobile phones that contain special location-determining hardware and/or software, which is used by a licensee to locate 911 calls.”

3. OnStar asserts that embedded telematics devices should not be treated as handsets and, therefore, not be subject to the Commission's E911 Phase II requirements at this time. OnStar contends that the assumptions concerning conventional handset technology on which the Commission's E911 Phase II decisions are based are not applicable to embedded telematics devices. OnStar asserts that embedded telematics developed around the use of autonomous (stand-alone) GPS while handset based Phase II technology has developed around a network assisted Global Positioning System/Advanced Forward Link Trilateration (AGPS/AFLT) handset solution.

4. In addition, OnStar contends that embedded telematics units should not be treated as handsets in calculating compliance with the underlying wireless licensee's handset activation requirements. OnStar submits that although handsets have relatively short lifecycles and are independent units routinely exchanged, retrofitting existing embedded analog telematics units with digital units is much more costly given technology and accessibility factors. OnStar contends that wireless carriers serving large populations of telematics units will lose the benefit of the five percent margin for handset compliance for E911 Phase II by December 31, 2005, with respect to “true handsets,” and may even exceed the five percent margin with telematics units alone.

5. We seek comment on the issues raised by the Declaratory Ruling Petition. Interested parties may file comments to the Petition on or before January 24, 2003. Reply comments are due February 7, 2003. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies.

6. This is a “permit but disclose” proceeding pursuant to § 1.1206 of the Commission's rules. Ex parte presentations that are made with respect to the issues involved with regard to the Petition will be allowed but must be disclosed in accordance with the requirements of § 1.1206(b) of the Commission's rules.

7. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html . Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, filing parties should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, parties should send an e-mail to ecfs@fcc.gov , and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply. Commenters also may obtain a copy of the ASCII Electronic Transmittal Form (FORM-ET) at http://www.fcc.gov/e-file/email.html .

8. Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Vistronix, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. In addition, a diskette copy should be sent to the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail to qualexint@aol.com .

9. The full text of the Declaratory Ruling Petition, and responsive comments will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor. Alternative formats (computer diskette, large print, audio recording and Braille) are available to persons with disabilities by contacting Brian Millin, of the Consumer and Governmental Affairs Bureau, at (202) 418-7426 (voice) or (202) 418-7365 (TTY), or at bmillin@fcc.gov . This Public Notice can also be downloaded in Text and ASCII formats at: http://www.fcc.gov/cib/dro . For further information concerning this proceeding, contact David Siehl or Patrick Forster, Policy Division, Wireless Telecommunications Bureau, at (202) 418-1310 (voice) or (202) 418-1169 (TTY).