This final rule is issued in conformance with Executive Order 12866 and has been determined to be significant and was reviewed by OMB.

The Regulatory Flexibility Act is not applicable to this final rule since neither the Commodity Credit Corporation (CCC) nor the Farm Service Agency (FSA) are required by 5 U.S.C. 553 or any other law to publish a notice of proposed rulemaking for the subject matter of this rule.

The title and number of the Federal Assistance Program, as found in the Catalog of Federal Domestic Assistance, to which this final rule applies are: Commodity Loans and Purchases—10.051.

An environmental evaluation found that this action will have no significant impact on the quality of the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is needed.

This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983).

This rule contains no unfunded mandates and, thus, is not subject to the provisions of title II of the Unfunded Mandates Reform Act of 1995.

These amendments do not contain information collections that require clearance by the Office of Management and Budget under the provisions of 44 U.S.C. chapter 35.

This rule is issued pursuant to the 1938 Act and the 1949 Act. Section 1108(c) of Pub. L. 99-972 provides that the determinations made in this rule are not subject to the provisions for public participation in rulemaking in 5 U.S.C. 553 or in any directive of the Secretary. Further, this rule affirms existing decisions which were time-sensitive. Hence, a delay in the implementation of the matters affirmed in this notice would have been impracticable, unnecessary, and counter to the public interest. Thus, the matters affirmed in this notice were made effective at the time that they were announced by press release.

On December 15, 2001, the Secretary announced the national marketing quota and the price support level for the 2002 crop of flue-cured tobacco. A number of related determinations were made at the same time, which this final rule affirms. In addition this rule affirms similar determinations made with respect to the 2000 and 2001 crops of flue-cured tobacco.

Section 317(a)(1)(B) of the 1938 Act provides, in part, that the national marketing quota for a marketing year for flue-cured tobacco is the quantity of such tobacco that is not more than 103 percent nor less than 97 percent of the total of: (1) the amount of flue-cured tobacco that domestic manufacturers of cigarettes estimate they intend to purchase on United States auction markets or from producers, (2) the average quantity exported annually from the U.S. during the 3 marketing years immediately preceding the marketing year for which the determination is being made, and (3) the quantity, if any, that the Secretary, in the Secretary's discretion, determines necessary to adjust loan stocks to the reserve stock level.

The reserve stock level is defined in section 301(b)(14)(C) of the 1938 Act as the greater of 100 million pounds or 15 percent of the national marketing quota for flue-cured tobacco for the marketing year immediately preceding the marketing year for which the level is being determined.

Section 320A of the 1938 Act provides that all domestic manufacturers of cigarettes with more than 1 percent of U.S. cigarette production and sales shall submit to the Secretary a statement of purchase intentions for the 2002 crop of flue-cured tobacco by December 1, 2002. Five such manufacturers were required to submit such a statement for the 2002 crop and the total of their intended purchases for the 2002 crop is 310.0 million pounds. The 3-year average of exports is 249.9 million pounds.

The national marketing quota for the 2001 crop year was 548.9 million pounds. In accordance with section 301(b)(14)(C) of the 1938 Act the reserve stock level is the greater of 15 percent of the previous year's quota (548.9 million pounds x .15 = 82.3 million pounds) or 100.0 million pounds. Thus, the reserve stock level for use in determining the 2002 marketing quota for flue-cured tobacco is 100.0 million pounds.

Pre-1997 loan crops have been sold. Further, manufacturers agreed in December of 1998, 1999, and 2000 to purchase an additional 210.0 million pounds, thereby reducing loan inventory to 46.9 million pounds. In addition, the Agricultural Rural Development, Food and Drug Administration and Related Agencies Appropriations Act of 2001 (Public Law 106-387), as amended, allowed the forfeiture of 1999 loan inventories. Loans from the 2001 crop total 121 million pounds, making total loan stocks 77.9 million pounds. Accordingly, the adjustment to maintain loan stocks at the reserve supply level is an increase of 22.1 million pounds.

The total of the three marketing quota components for the 2001-2002 Marketing Year (MY) is 582 million pounds. Accordingly, the national marketing quota for the MY beginning July 1, 2002, for flue-cured tobacco is 582 million pounds.

Section 317(a)(2) of the 1938 Act provides that the national average yield goal be set at a level that the Secretary determines will improve or ensure the usability of the tobacco and increase the net return per pound to the producers. Since average yields have not changed significantly in recent years, the national average yield goal for the 2002 MY will be 2,088 pounds per acre, the same as last year's level.

In accordance with section 317(a)(3) of the 1938 Act, the national acreage allotment for the 2002 crop of flue-cured tobacco is determined to be 278,735.63 acres, derived from dividing the national marketing quota by the national average yield goal.

In accordance with section 317(e) of the 1938 Act, the Secretary is authorized to establish a national reserve from the national acreage allotment in an amount equivalent to not more than 3 percent of the national acreage allotment for the purpose of making corrections in farm acreage allotments, adjusting for inequities, and for establishing allotments for new farms. The Secretary has determined that a national reserve for the 2002 crop of flue-cured tobacco of 733 acres is adequate for these purposes.

In accordance with section 317(a)(4) of the 1938 Act, the national acreage factor for the 2002 crop of flue-cured tobacco for uniformly adjusting the acreage allotment of each farm is determined to be 1.06, which is the result of dividing the 2002 national allotment (278,735.63 acres) minus the national reserve (733 acres) by the total of allotments established for flue-cured tobacco farms in 2001 (262,265.98 acres).

In accordance with section 317(a)(7) of the 1938 Act, the national yield factor for the 2002 crop of flue-cured tobacco is determined to be 0.9251, which is the result of dividing the national average yield goal (2,088 pounds) by a weighted national average yield (2,257 pounds).

Price support is required to be made available for each crop of a kind of tobacco for which quotas are in effect, or for which marketing quotas have not been disapproved by producers, at a level determined in accordance with a formula prescribed in section 106 of the 1949 Act.

With respect to the 2002 crop of flue-cured tobacco, the level of support is determined in accordance with sections 106(d) and (f) of the 1949 Act. Section 106(f)(7)(A) of the 1949 Act provides that the level of support for the 2002 crop of flue-cured tobacco shall be:

(1) The level, in cents per pound, at which the 2001 crop of flue-cured tobacco was supported, plus or minus, respectively,

(2) An adjustment of not less than 65 percent nor more than 100 percent of the total, as determined by the Secretary after taking into consideration the supply of the kind of tobacco involved in relation to demand, of:

(A) 66.7 percent of the amount by which:

(I) The average price received by producers for flue-cured tobacco on the U.S. auction markets, as determined by the Secretary, during the 5 MY's immediately preceding the MY for which the determination is being made, excluding the year in which the average price was the highest and the year in which the average price was the lowest in such period, is greater or less than:

(II) The average price received by producers for flue-cured tobacco on the U.S. auction markets, as determined by the Secretary, during the 5 MY's immediately preceding the MY prior to the MY for which the determination is being made, excluding the year in which the average price was the highest and the year in which the average price was the lowest in such period; and

(B) 33.3 percent of the change, expressed as a cost per pound of tobacco, in the index of prices paid by the tobacco producers from January 1 to December 31 of the calendar year immediately preceding the year for which the determination is made.

The difference between the two 5-year averages ( i.e. , the difference between (A)(I) and (A)(II)) is 0.10 cent per pound. The difference in the cost index from January 1, 2001, to December 31, 2001, is −1.7 cents per pound. Applying these components to the price support formula (0.0 cent per pound, two-thirds weight; −1.7 cents per pound, one-third weight) results in a weighted total of −0.6 cent per pound. As indicated, section 106 of the 1949 Act provides that the Secretary may, on the basis of supply and demand conditions, limit the change in the price support level to no less than 65 percent of that amount. As there was no justifiable basis found for limiting the decrease (which reflected a change in production costs), and in order to aid in the marketing of the crop, that discretion was not utilized. Accordingly, the 2002 crop of flue-cured tobacco will be supported at 165.4 cents per pound, 0.6 cent lower than the 2001 crop.

The 2000 and 2001 quotas and price support were determined using the same methodology as described for the 2002 quota and price support. With respect to the marketing quota determinations, for the 2000 crop the purchase intentions, exports (three year average), reserve stock average, and final quota (103% of the total) were 286.0, 334.1, (−92.9), and 543.0 and for 2001 were 297.0, 297.7, (−61.8), and 548.9. The adjustment up to 103% was made, as allowed by statute, to lessen the impact on producers of the declining quotas. Following the time of the determinations for the 2002 crops, the Congress, in Pub. L. 107-71, adjusted the reserve stock level for flue-cured tobacco, doing so in section 1610 of that Act. That change will impact future crops. With respect to price support the price indices used in the price support level determination, the changes (in cents) in prices received and in prices paid per pound were for the 2000 crop determination, 0.4 and 1.5 and for the 2001-crop calculation (−0.2) and 6.5. In order to aid the marketing of the 2000 and 2001 crops, the Secretary used the discretion allowed by the authorizing statute to limit the price support increase to 65% of the increase that would have otherwise been produced by the formula. Copies and other supporting documents are available from Mr. Robert L. Tarczy, USDA, Farm Service Agency, Stop 0514,1400 Independence Avenue, SW., Washington, DC 20250-0514, telephone 202-720-5346.

Exotic Newcastle disease (END) is a contagious and fatal viral disease affecting the respiratory, nervous, and digestive systems of birds and poultry. END is so virulent that many birds and poultry die without showing any clinical signs. A death rate of almost 100 percent can occur in unvaccinated poultry flocks. END can infect and cause death even in vaccinated poultry.

The regulations in “Subpart A—Exotic Newcastle Disease (END)” (9 CFR 82.1 through 82.16, referred to below as the regulations) were established to prevent the spread of END in the United States in the event of an outbreak. In § 82.3, paragraph (a) provides that any area where birds or poultry infected with END are located will be designated as a quarantined area, and that a quarantined area is any geographical area, which may be a premises or all or part of a State, deemed by epidemiological evaluation to be sufficient to contain all birds or poultry known to be infected with or exposed to END. Portions of Arizona, California, Nevada, New Mexico, and Texas are designated as quarantined areas in § 82.3(c) of the regulations. As a result, the interstate movement from the quarantined areas of birds, poultry, products, and materials that could spread END is prohibited or restricted. Further, because the Secretary has declared an extraordinary emergency because of END in those States, the regulations in § 82.16 provide that the intrastate movement from those quarantined areas of birds, poultry, products, and materials that could spread END is prohibited or restricted.

In this interim rule, we are reducing the size of the quarantined area in Texas and eliminating the quarantined area in New Mexico based on the results of extensive surveillance and investigations conducted in those States. These activities are described below.

On April 9, 2003, END was confirmed in backyard poultry on a premises in the town of Socorro, El Paso County, TX. Therefore, in an interim rule effective April 10, 2003, and published in the Federal Register on April 16, 2003 (68 FR 18531-18532, Docket No. 02-117-5), we amended § 82.3(c) by quarantining El Paso and Hudspeth Counties, TX, and Dona Ana, Luna, and Otero Counties, NM. As provided for by the regulations in § 82.3(a), this quarantined area encompassed the area where poultry infected with END were located and a surrounding geographical area deemed by epidemiological evaluation to be sufficient to contain all birds or poultry known to be infected with or exposed to END.

Following the detection of END in Texas, intensive surveys were conducted in the five-county quarantined area. The original infected premises proved to be the only premises with END-infected birds. Three “dangerous contact” premises ( i.e. , premises with an epidemiological link to the infected premises) were identified, along with 51 premises (42 containing poultry and 9 with only pet birds) located within a 1 kilometer radius of the infected premises. All birds and poultry on those 54 premises were tested for END with negative results. Across the five-county quarantined area, additional surveys were conducted in targeted high-risk areas. Populated areas, reports from animal control units, and leads derived from reports of sick birds or poultry or other epidemiological information were used to define the high-risk areas. No additional cases were identified in any of these areas. Passive surveillance, including education and outreach efforts, continues to be conducted throughout the States. A total of 1,591 investigations were conducted in New Mexico and Texas, with 839 flocks tested. No evidence of additional disease spread was identified through this surveillance. There is a single commercial premises in the quarantined area, located in Berino, Dona Ana County, NM. Swabs were submitted on a weekly basis from this facility, all with negative results. A review of biosecurity procedures and other records was also conducted on a weekly basis. All test results reported through May 12, 2003, have been negative.

As noted previously, the regulations in § 82.3(a) provide that any area where birds or poultry infected with END are located will be designated as a quarantined area, and that a quarantined area is any geographical area, which may be a premises or all or part of a State, deemed by epidemiological evaluation to be sufficient to contain all birds or poultry known to be infected with or exposed to END.

Animal and Plant Health Inspection Service epidemiologists have evaluated the results of the investigations conducted in New Mexico and Texas and have determined that we may now reduce the size of the quarantined area in Texas and that it is no longer necessary to maintain quarantined areas in New Mexico. This determination is based on, among other things, the demonstrated absence of birds or poultry infected with or exposed to END in specific areas. The regulations in § 82.14 provide requirements that must be met before an area may be removed from quarantine, but those requirements relate to measures taken with respect to END-infected or -exposed birds and poultry, their eggs and manure, and articles and premises with which such birds or their manure or litter have come in contact. As there were no END-infected or -exposed birds or poultry in the areas that we are removing from quarantine, there are no requirements under § 82.14 that need to be met before those areas can be removed from quarantine.

Therefore, in this interim rule, we are amending § 82.3(c) by removing Dona Ana, Luna, and Otero Counties, NM, Hudspeth County, TX, and portions of El Paso County, TX, from the list of quarantined areas because the continued quarantine of these areas is no longer necessary to contain all birds and poultry infected with or exposed to END. That portion of El Paso County, TX, that will remain as a quarantined area, which is described in the amendments to § 82.3(c) at the end of this document, has been deemed by epidemiological evaluation to be sufficient to contain all birds or poultry known to be infected with or exposed to END.

Immediate action is warranted to relieve restrictions that are no longer necessary. We have determined that Dona Ana, Luna, and Otero Counties, NM, Hudspeth County, TX, and portions of El Paso County, TX, may now be removed from the list of areas quarantined because of END. Therefore, immediate action is warranted to relieve the prohibitions or restrictions that have applied to the movement of birds, poultry, products, and other materials from those areas. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the Federal Register .

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

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.

This rule amends the regulations by removing Dona Ana, Luna, and Otero Counties, NM, Hudspeth County, TX, and portions of El Paso County, TX, from the list of quarantined areas. This action needs to be made effective immediately in order to remove restrictions on the movement of birds, poultry, and certain other articles from those areas that are no longer necessary.

This situation makes timely compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) impracticable. We are currently assessing the potential economic effects of this action on small entities. Based on that assessment, we will either certify that the rule will not have a significant economic impact on a substantial number of small entities or publish a final regulatory flexibility analysis.

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

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

This interim rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 727-100 and 727-200 series airplanes was published in the Federal Register on September 10, 2001 (66 FR 46968). That action proposed to require replacement of the installed autopilot pitch control computer with a modified computer, testing of the modified system, and revision of the Airplane Flight Manual (AFM).

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One operator reports that the actions specified in the proposed AD have been incorporated on all of its airplanes.

One operator asserts that accomplishment of the actions specified in the proposed AD would not eliminate the identified unsafe condition, and suggests that pilot training and procedures would eliminate unstable category II approaches by autopilot disconnect. The FAA infers that the commenter is requesting withdrawal of the proposed AD.

The FAA does not agree. The unsafe condition is related to the accident described in the proposed AD involving a Model 727 series airplane during a coupled instrument landing system (ILS) category II approach. The circumstances surrounding that accident led in part to the issuance of this AD. The divergent pitch oscillations of the airplane resulted from an improper autopilot desensitization rate and contributed to the accident. This AD addresses the improper autopilot desensitization rate. The AFM revisions required by this AD provide data to the flightcrew regarding certain limitations, such as autopilot disconnect, inherent in the design of Sperry SP-50 and SP-150 autopilots. Observing these limitations will help the flightcrew take the appropriate action necessary for a successful landing or go-around.

One operator requests that issuance of the AD be delayed until further studies, as described in the proposed AD, can be completed. The proposed AD describes additional studies in process that are intended to develop appropriate limits for flap settings and airspeeds and to investigate other aspects such as winds and glideslope angles as possible contributors to the unsafe condition. The commenter requests that the studies be completed before the proposed AFM revisions and modifications are mandated.

The FAA does not agree. If the results of the studies ultimately suggest the need for additional intervention, or if additional data are presented that would justify revising any requirements of this AD, the FAA may consider further rulemaking on this issue. In consideration of the amount of time that has already elapsed since issuance of the original notice of proposed rulemaking, the FAA has determined that further delay of this final rule action is not appropriate.

Two operators request removal of the landing flap limitation specified in paragraph (d) of the proposed AD. To justify the request, the commenters state that the difference in the approach speeds between the 30-degree and 40-degree landing flap configurations is only 5 knots, and the proposed limitation would provide only minimal improvement in glideslope beam tracking.

The FAA is aware of the small difference in approach speeds and agrees with the request to remove the landing flap limitation. In the preamble of the proposed AD, the FAA indicated that additional studies were being conducted to develop applicable operating limitations that would address approach flap settings. The FAA has since obtained additional analysis indicating that the new gain schedule applies to both 30-degree and 40-degree landing flap configurations. Therefore, paragraph (d) of the proposed AD has been removed from the final rule, and subsequent paragraphs have been reidentified.

Two operators request that the applicability of the proposed AD be revised to exclude airplanes equipped with single-pitch channels that use radio altimeter-based glideslope gain programming. One commenter reports that most of the affected airplanes in its fleet have been modified to incorporate a dual-pitch computer configuration in accordance with Sperry Service Bulletin 21-1132-121, dated November 23, 1982 (for SP-50 autopilots); or 21-1132-122, dated February 7, 1983 (for SP-150 autopilots). (Those service bulletins were cited in the proposed AD as the appropriate source of service information for the one-time test of the modified autopilot.) This commenter adds that compliance with paragraphs (b) and (c) of the proposed AD would be impossible for those airplanes because the proposed AD and Boeing service bulletin are targeted for airplanes with single-channel autopilot systems. In addition, this commenter states that paragraph (a) of the proposed AD imposes an undesirable restriction on modified airplanes by preventing them from flying category II and category III approaches into airports with inoperative middle markers. This commenter asserts that this restriction is unnecessary for the modified airplanes because their autopilot configurations use radio altimeter glideslope gain programming (radio altitude-based desensitization), and are therefore not susceptible to the airworthiness concern associated with inoperative middle markers addressed by the proposed AD. The commenter recommends that the applicability of the proposed AD be revised to exclude those airplanes.

The other commenter notes that affected airplanes with single-pitch channels on which the actions specified in Boeing Service Bulletin 727-22-0052 have been incorporated do not use the middle marker in gain programming. The commenter concludes that these airplanes should not be prohibited from category II approaches if no middle marker is available.

The FAA agrees. In this case, where the autopilot has already been modified with an FAA-approved design that does not normally use time-based gain programming, the FAA agrees that excluding airplanes equipped with radio altimeter-based autopilots from the applicability of the AD will not compromise the safety of the fleet. The applicability of this AD has been revised accordingly.

Several commenters request that the applicability of the proposed AD be revised to clarify that the requirements apply only if operators desire to maintain the capability of the autopilot coupled ILS approach. One operator, conducting “Cat I approach only,” requests exclusion from the applicability of the AD.

The FAA partially agrees. The intent of the AD is to “prevent dangerous pitch oscillations during coupled (ILS) approaches”; affected operators could comply with the AD simply by never conducting coupled approaches. Although the cited wording does not directly address category I coupled approaches, analysis has shown that, if the unmodified autopilot is used, potentially unsafe pitch oscillation can begin at 400 feet above ground level (AGL), which is well above the typical decision height for category I approaches of 200 feet AGL. As a result, category I and category II coupled approaches would be prohibited for airplanes that have unmodified autopilot gains. However, manually flown approaches using autopilot guidance (glideslope and localizer needle deviations) or flight director guidance would be permitted. Because the middle marker signal is typically received at 200 feet AGL and because during typical category I coupled approaches the pilot disconnects the autopilot at 200 feet AGL (compared to 100 feet AGL, which is typical for category II approaches), no AFM restriction for category I approaches is discussed in the AD even though modification of the autopilot is required if it is used for any coupled approach. The AFM language has been further revised in paragraph (a) of this final rule to clarify that the autopilot must be modified if any coupled ILS approach is conducted. To more clearly identify those airplanes affected by this requirement, new paragraph (e) has been added to the final rule to require modification of the autopilot unit only if autopilot coupled ILS approaches are to be used with that airplane. Subsequent paragraphs that appeared in the proposed AD have been reidentified in the final rule.

The applicability of the proposed AD includes only those Model 727-100 and -200 series airplanes that are listed in Boeing Alert Service Bulletin 727-22A0093, dated December 20, 2000. One operator reports that some of its airplanes are not listed in the service bulletin but are equipped with SP-50 and/or SP-150 autopilots. The FAA infers that the commenter is requesting that the applicability of the proposed AD be expanded to include any Model 727-100 and -200 series airplane equipped with a subject autopilot.

The FAA does not agree. Not all Model 727-100 or -200 series airplanes with the subject autopilots are susceptible to the unsafe condition identified by this AD. For example, airplanes delivered after November 1977 are not susceptible because they use radio altimeter gain scheduling for the SP-150 autopilots instead of the time-based gain scheduling discussed in the proposed AD. No change to the applicability of the final rule is necessary in this regard.

Two commenters request clarification of the one-time test specified by paragraph (c) of the proposed AD. The commenters state that this requirement, as written, is either redundant or subject to misinterpretation. The Sperry service bulletins, described previously, were cited in the proposed AD: in paragraph (c) for the one-time test procedures and in paragraph (d) for the autopilot modification procedures. (Paragraph (d) has since been removed from the final rule, as discussed previously.) The proposed AD specified that the test be done concurrently with the modification, before reinstallation of the modified autopilot, and before further flight. The commenters suggest that the wording of the proposed AD could cause operators to perform unnecessary rework. The commenters suggest that the proposed test requirement be a one-time test of the autopilot unit, because “the timing in relation to the modification is immaterial.”

One operator requests that the proposed test requirement be revised to distinguish the requirements associated with the autopilot from those associated with the airplane. This commenter suggests that paragraph (c) of the proposed AD be revised to read as follows: “Following any * * * modification, perform a one-time test procedure of the modified autopilot.” The wording in the proposed AD suggests that two tests are to be done at the same time. The commenter requests this change to clarify the requirements and to avoid unnecessary rework.

The FAA partially agrees. The requirements regarding the autopilot test may be redundant because the Sperry service bulletins already specify testing the unit using test information provided in those service bulletins. However, those same service bulletins note that, “Test information given in this bulletin shall be disregarded when revised Component Maintenance Manuals become available.” This note may be misinterpreted to mean the test is not required, so the FAA finds it necessary to clarify the test requirement. The FAA has learned that many operators have already accomplished the modifications and post-modification testing specified in the proposed AD. Therefore, paragraph (c) of the final rule has been revised to clarify this requirement.

One operator asserts that a variety of effective methods have been used to verify the new time constants described in the Sperry service bulletins for the test. The commenter suggests that the methods of compliance for paragraph (c) of the proposed AD be broadened to allow the option of “other valid methods.” The commenter reports that some of its autopilot units were modified and tested in-house in accordance with established test procedures described in the component maintenance manual. The commenter adds that other autopilot units were purchased already modified in accordance with the procedures described in the Sperry service bulletins. The commenter suggests this change to avoid unnecessary retesting of autopilot units for which the use of the new time constants has already been confirmed.

The FAA agrees with the request for the reasons stated by the commenter. Paragraph (c) of the final rule has been further revised to provide operators this testing option.

One operator requests that paragraph (e) of the proposed AD be either removed from the AD or revised to extend the time allowed for spares modifications and AFM revisions. This commenter asserts that a minimum of 6 months will be necessary to modify spare parts and revise the AFM.

The FAA partially agrees. The FAA finds that the AFM limitations imposed by this AD will sufficiently ensure safety of an affected airplane until spare parts can be acquired and modified; therefore, allowing additional time to modify spare parts will not compromise safety. However, the FAA does not agree that it is necessary to extend the time by which the AFM revisions must be completed. The basic intent of an AFM revision may be accomplished by inserting a copy of the AD into the AFM; operators should be able to complete this action in a short time. Paragraph (f) of the final rule (paragraph (e) in the proposed AD) has been revised to extend the time by which the installation of unmodified spare parts will be prohibited.

Two operators request a revision of the proposed cost estimates. One operator notes that the proposed AD does not address the costs associated with obtaining a master change from Boeing to eliminate the need for a middle marker to begin second-stage gain programming. One operator notes that the proposed AD does not address the costs associated with airplane diversions that would result if category II approaches are prohibited at airports without middle markers.

The FAA partially agrees. Since category II approaches are prohibited at airports that do not have middle markers, an operator may elect to fly category I or manual approaches, divert to another airport, or modify the autopilot to operate with radio-altimeter-based gain schedule with control law that does not depend on the middle marker signal. However, the middle marker signal has always been and remains a necessary part of the autopilot that is programmed with a time-based gain schedule. This AD in part is intended to ensure the safe operation of an airplane—within the original autopilot design constraints associated with use of middle markers—by way of operational requirements. No change to the final rule is necessary in this regard.

One operator asserts that the parts cost to modify each SP-150 autopilot is $641—not $168 as stated in the proposed AD.

According to updated information provided by Boeing to the FAA, the parts cost is $522 for the SP-50 autopilot and $620 for the SP-150 autopilot. The Cost Impact section of the final rule has been revised accordingly.

The proposed AFM revision requirement would prohibit a category II autopilot coupled ILS approach when the middle marker is inoperative. One operator suggests that the FAA reactivate middle markers as an alternative to the AFM revision requirement. The commenter claims that the FAA has deactivated ground-based middle marker beacons, and some operators have maintained their airborne marker beacon systems.

The FAA does not agree with the request. The use of the middle marker is an original design feature of the subject autopilots. If the middle marker is inoperative or nonexistent, these autopilots—which are time-based—will not work properly. The FAA has approved autopilots that do not rely on marker beacons. Furthermore, the FAA currently is not considering reactivating the marker beacon system due to the International Civil Aviation Organization's September 1984 revision to Annex 10, which expanded the use of ILS/distance measuring equipment (DME) as a substitute for all or part of the marker beacon system. No change to the final rule is necessary in this regard.

Boeing requests a change to the second sentence of the Discussion section of the proposed AD. Specifically, this commenter requests that the revised sentence read as follows: “The approach was normal until the airplane passed through 200 feet above ground level, where the airplane, responding to a [glideslope] beam anomaly, started a pitch oscillation that continued to increase.” The FAA infers that the commenter is suggesting that the glideslope beam anomaly contributes to the pitch oscillation problem.

The FAA does not agree with the request, but agrees that the glideslope beam anomaly can contribute to the pitch oscillation problem, and may have been a contributing factor to the accident described in the proposed AD. However, there were no indications that a glideslope anomaly contributed directly to the accident. Numerous runway 14R records dating from a time prior to the accident indicate no glideslope deviations or other ILS-related problems. The results of normal and special flight checks of the ILS were also within normal limits. Furthermore, results of simulator testing using typical glideslope profiles have indicated that the autopilot with the 150-second desensitization period responded to the disturbances (induced turbulence and vertical wind gusts) by commanding oscillatory pitch changes or changes in pitch that are oscillatory in nature, which increased over time and resulted in significant deviations from the desired flight path. No change to the final rule is necessary in this regard.

Boeing suggests that the proposed AFM revisions include additional indicators for approach performance, such as flightcrew monitoring for allowable ILS deviations and horizontal stabilizer activity that indicate an out-of-trim nonstabilized approach. The commenter provides no justification for this request.

In consideration of the amount of time that has already elapsed since the issuance of the original notice, the FAA has determined that further delay of this final rule is not appropriate. However, if additional data are presented that would justify revising the requirements of this AD, the FAA may consider further rulemaking to require AFM revisions that would include the specific requested performance indicators. No change to the final rule is necessary in this regard.

Boeing requests that, instead of issuing a special flight permit to allow operation of the airplane to a location where the requirements of the AD can be accomplished, the FAA impose operational restrictions on autopilot coupled ILS approaches for that flight.

The FAA partially concurs. The FAA finds that such operational restrictions are acceptable but not necessary in this case because another method is available to operate the airplane; i.e. , the airplane can be manually operated during approaches. No change to the final rule regarding this issue is necessary.

One operator requests that paragraph (e) (“Spare Parts”) of the proposed AD be revised to more clearly identify those airplanes that would be affected by that proposed requirement. The commenter suggests that the term “any airplane,” as it is used in that paragraph, be clarified to explain that not all Model 727-100 and -200 series airplanes are subject to this requirement.

The FAA agrees that not all existing Model 727-100 and -200 series airplanes are subject to the identified unsafe condition; however, the FAA does not agree that revision of this paragraph is necessary. As stated earlier, the applicability of the final rule has been revised to exclude airplanes equipped with radio altimeter-based autopilots. Any qualifier (including “any” and “all”) used to identify airplanes subject to a particular requirement of an AD is relative to the overall applicability of the AD.

Boeing requests a revision of one sentence in the third paragraph of the Discussion section of the proposed AD. That sentence reads as follows:

The FAA does not agree with this request. Although the requested language is technically correct, the FAA finds that the simpler explanation in the Discussion section of the proposed AD is adequate to explain the conditions that require autopilot sensitivity changes. No change to the final rule is necessary in this regard.

Boeing requests a change to one sentence of the final paragraph of the Discussion section of the proposed AD. That sentence reads as follows:

The FAA partially concurs. The requested wording is specific; however, the Discussion section is not repeated in a final rule, so no change is necessary in this regard.

Some minor additional changes have been made to paragraph (a) of this final rule. First, the prohibition of coupled ILS approaches, specified in the proposed AD only for “inoperative” middle markers, has been changed in this final rule to “inoperative or nonexistent” middle markers. Second, the second sentence of the revised AFM language has been changed from “* * * during Cat II autopilot coupled ILS approaches” to “* * * during coupled ILS CAT II approaches.”

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 750 airplanes of the affected design in the worldwide fleet. The FAA estimates that 162 airplanes of U.S. registry will be affected by this AD.

It will take approximately 1 work hour per airplane to revise the AFM, at an average labor rate of $60 per work hour. Based on this figure, the cost impact of the required AFM revisions on U.S. operators is estimated to be $9,720, or $60 per airplane.

It will take approximately 1 work hour per airplane to modify and test the SP-50 autopilot and 2 work hours per airplane to modify and test the SP-150 autopilot. Required parts will cost approximately $522 for the SP-50 autopilot and $620 for the SP-150 autopilot. Based on these figures, the cost impact of the modification and test is estimated to be $582 (SP-50) or $740 (SP-150) per airplane.

The overall cost to the affected fleet could range from $104,004 to $301,320.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on Eurocopter Model AS332 C, L, and L1 helicopters, with Turbomeca Makila 1A and Makila 1A1 engines installed with fuel control unit (FCU), part number (P/N) 0 164 16 820 0 or P/N 0 164 16 835 0, having serial numbers (S/N) 100M through 525M, except for fuel control units with S/N 168M, 323M, 369M, 371M, 378M, 382M, 396M, 407M, 422M, 445M, 449M, 460M, 469M, 472M, 479M, 488M, 499M, 513M, 518M, 523M, or FCUs that have incorporated Turbomeca Service Bulletin No. 298 73 0802, dated September 17, 2002. The DGAC advises that their AD was issued following the discovery of an anomaly affecting the maximum fuel flow limit adjustment on some Makila 1A and 1A1 engines. This anomaly leads to a fuel flow reduction outside the tolerance limits and can have an effect on single-engine flight performance.

Eurocopter has issued Alert Telex No. 73.00.01, dated October 2, 2002, which specifies a weight limitation for takeoff from helipads; a weight limitation in hover flight; and a rate of climb limit in certain portions of the approved flight envelope. The DGAC classified this alert telex as mandatory and issued AD 2002-551(A), dated November 13, 2002, to ensure the continued airworthiness of these helicopters in France.

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

This unsafe condition is likely to exist or develop on other helicopters of the same type designs registered in the United States. Therefore, this AD is being issued to prevent failure of the engine to develop the maximum 2 1/2 minute OEI power, reduced helicopter performance, and subsequent loss of control of the helicopter during OEI operation. This AD requires revising the RFM Limitations section in certain conditions if certain FCUs are installed. The actions must be done in accordance with the alert telex described previously. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the power available for single engine operations of the helicopter. Therefore, revising the RFM for certain helicopters is required before further flight, and this AD must be issued immediately.

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

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's AD system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. Because we have now included this material in part 39, we no longer need to include it in each individual AD.

The FAA estimates that this AD will affect 4 helicopters and determining the applicability of this AD will take approximately 1 work hour at an average labor rate of $60 per work hour. Based on these figures, the total cost impact of the AD on U.S. operators will be $240, assuming no affected FCUs will be discovered.

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

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

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2003-SW-13-AD.” The postcard will be date stamped and returned to the commenter.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 747 series airplanes was published in the Federal Register on September 25, 2002 (67 FR 60189). That action proposed to require an initial inspection to identify all H-11 steel bolts on the outer chord of the body station (BS) 2360 aft pressure bulkhead between stringers 12L and 12R, follow-on repetitive inspections to identify all remaining H-11 steel bolts on the entire outer chord of the BS 2360 aft pressure bulkhead, and follow-on and corrective actions if necessary. That action also proposed to require eventual replacement of all H-11 steel bolts with Inconel bolts.

Interested persons have been afforded an opportunity to participate in the making of this amendment. The FAA has given due consideration to the comments received.

One commenter requests that the FAA revise the unsafe condition in the proposed AD, which states that the consequences of not finding broken H-11 steel bolts is progressive failure of the remaining bolts and consequent structural damage and rapid depressurization of the airplane. The commenter notes that, while these are effects of progressive bolt failure, it is more significant that such failure could result in loss of control of the airplane. We concur and have revised the statement of unsafe condition throughout this final rule.

One commenter requests that we revise paragraph (c) of the proposed AD to clarify that the repeat inspections in that paragraph apply only to the remaining H-11 steel bolts (that is, the H-11 steel bolts that have not been replaced with Inconel bolts). We concur that the repetitive ultrasonic inspections and torque checks for cracked or broken bolts are necessary only for the remaining H-11 steel bolts. We have clarified paragraph (c) of this final rule accordingly.

One commenter requests that we revise the instructions in paragraph (d) of the proposed AD to remove the instruction to coat the Inconel bolt with corrosion-inhibiting compound after installation. The commenter states that the instructions for applying corrosion protection on the replacement Inconel bolt that are stated in paragraph (d) of the proposed AD are incomplete and suggests alternative instructions. The commenter recommends that paragraph (d) refer to Figure 4 of the service bulletin.

We do not agree that any change is necessary. Paragraph (d) of this AD requires replacing all subject H-11 steel bolts per Boeing Alert Service Bulletin 747-53A2474, dated October 25, 2001. When we refer to a service bulletin in this way in an AD, operators are required to follow all procedures in the service bulletin, including the instructions for corrosion prevention that are specified in Figure 4 of the service bulletin. (We note that the Accomplishment Instructions of the service bulletin refer to Figure 4 of the service bulletin for replacement procedures.) No change to the final rule is needed in this regard.

One commenter requests that we consider requiring operators to inspect or replace an H-11 steel bolt (including reworking the bolt hole) found on either side of a cracked H-11 steel bolt during the initial inspection. The commenter states that such a requirement should not add significant downtime and will better ensure safety.

We do not agree that any change is necessary. This AD requires inspecting all H-11 steel bolts in the subject area, which would include H-11 bolts adjacent to cracked or broken bolts. While an operator has the option of immediately replacing any H-11 steel bolt that is adjacent to a cracked or broken bolt, we find that performing repetitive inspections of remaining H-11 steel bolts will provide an acceptable level of safety until all H-11 steel bolts are replaced as required by paragraph (d) of this AD. (Such replacement is required within 6 years after the effective date of the AD.) No change to the final rule is needed in this regard.

We have revised the applicability statement of this AD to clarify that Boeing Model 747-400, -400D, and -400F series airplanes are not affected by this AD. The airplanes with line numbers 1 through 644 inclusive are Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200F, 747-200C, 747-300, 747SR, and 747SP series airplanes.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 487 airplanes of the affected design in the worldwide fleet. The FAA estimates that 165 airplanes of U.S. registry will be affected by this AD.

It will take approximately 9 work hours per airplane to accomplish the required initial inspection, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the initial inspection on U.S. operators is estimated to be $89,100, or $540 per airplane.

It will take approximately 35 work hours per airplane to accomplish the required follow-on inspection to identify all remaining H-11 steel bolts on the entire outer chord, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the follow-on inspection on U.S. operators is estimated to be $346,500, or $2,100 per airplane, per inspection cycle.

Should an operator be required to replace the H-11 steel bolts, it will take approximately 108 work hours per airplane to accomplish the replacement, at an average labor rate of $60 per work hour. Required parts will cost approximately $3,233 per airplane. Based on these figures, the cost impact is estimated to be $9,713 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

Commission Rule 1.35(a-1), in effect since August 27, 1998 has allowed bunched orders for eligible customers to be placed on a contract market without specific customer account identification either at the time of order placement or at the time of report of execution. Rule 1.35(a-1) has limited post-execution allocation of bunched orders to sophisticated customers and required eligible account managers  1 to make certain disclosures regarding the allocation methodology, the standard of fairness of allocations, composite or summary data of the trades, and whether the account manager has any interest in the bunched order.

In December 2000, the Commodity Futures Modernization Act (“CFMA”) was enacted. One of the mandates of the CFMA was for the Commission to review its rules relating to intermediaries with an eye to identifying areas where greater flexibility might be warranted. Since the enactment of the CFMA, numerous industry participants have stated to Commission staff that the regulations related to bunched orders needed to be revisited for a number of reasons and the Commission so reported to Congress in its Intermediaries Study in June 2002.

For example, enhancements in technology have made it easier for account managers to enter orders directly, thereby making certain aspects of the current requirements less workable. In addition, many account managers use “give-up” agreements and multiple FCMs for clearing and execution. Thus, while the current rule requires that an account manager identify eligible customer accounts to which fills will be allocated before placing an order eligible for post-execution allocation, FCMs may not know that an order has been executed for a particular client until that order has been executed and cleared. 2 Account managers and FCMs have also commented that their responsibilities under the current rule are unclear, especially their respective recordkeeping responsibilities. Therefore, as markets become more global in scope, account managers, both domestic and foreign, and FCMs have claimed that the current bunched order requirements serve as a disincentive to using U.S. futures markets.

On February 2, 2001, the National Futures Association (“NFA”) and the Futures Industry Institute issued an industry-wide study of issues associated with order transmission and order entry process by commodity professionals (“Best Practices Study”). 3 The study reported that, although the current rule increased flexibility over previously applicable requirements, many commenters in the study felt that the current rule caused “unnecessary processing delays without adding customer protections that otherwise could be realized through equally effective, less costly procedures.” 4

Based upon the foregoing, on March 14, 2003, the Commission published the proposed amendments to Rule 1.35(a-1). 5 The Commission received twenty-five comments on the proposed rule. The commenters included ten FCMs  6 , four exchanges  7 , two industry associations  8 , one commodity trading advisor (“CTA”)  9 , seven individuals  10 and NFA. The FCMs, exchanges, industry associations, NFA and the CTA supported the amendments to the rule, generally stating that the essential customer protections would be retained while clarifying the responsibilities of FCMs and account managers. Six individuals submitted comments expressing concern over the possible unfair allocation by account managers. One commenter submitted comments expressing concern over the Commission's ability to monitor for unfair allocation under the amended rule. These comments are discussed fully below.

The current rule limits the post-execution allocation of bunched orders to “eligible customers,” who, in essence, are sophisticated customers. In its comment, NFA noted that “[a]ll customers deserve to have their orders filled efficiently and at the most favorable terms under the circumstances.” The NFA and other commenters expressed the view that bunched orders can meet these objectives because bunched orders can provide better pricing and execution of orders. The Commission agrees; accordingly, as proposed, the amendments to Rule 1.35(a-1)(5) will expand eligibility to all customers who provide written investment discretion to account managers. 11

In the proposal, the Commission requested comment on whether it should retain an interpretive notice currently found at Appendix C to Part 1. 12 Appendix C allows CTAs to bunch orders if they prefile their allocation procedures with a clearing member, NFA, or an exchange. As the Commission noted in the proposal, Appendix C may prove unnecessary given the amended rule. One commenter, FIA, stated that the Commission should make clear that the amended rule supercedes any NFA interpretive notices or Commission rules to the extent they are inconsistent. The Commission notes that Appendix C governs the allocation of bunched orders pursuant to a pre-filed or contemporaneously-filed allocation scheme as opposed to the amended Rule, which governs the post-execution allocation of bunched orders. However, if any conflict between the two rules arises, the standards set forth in this rule supercede any interpretive guidance on bunched orders issued by the Commission. The Commission will retain Appendix C as guidance to account managers who may wish to allocate orders under the circumstances described therein and as an example of permissible allocation methods, but may reconsider this issue in the future.

Current rule 1.35(a-1) includes as eligible account managers registered CTAs and Investment Advisers (“IAs”), banks, insurance companies, trust companies, and savings and loan associations. Rule 1.35(a-1), as amended, expands the class of account managers permitted to bunch orders. 13 Generally, the Commission and the Securities and Exchange Commission exempt certain CTAs and IAs from registration or other regulatory requirements if they exclusively service certain sophisticated customers. 14 The Commission believes that post-execution allocation should be expanded to these entities. The amended rule expands the list of eligible account managers to include CTAs and IAs who are exempt from registration, or are excluded from the definition of CTA or IA by operation of law or rule. In addition, the amended rule allows foreign advisors, who exercise discretionary trading authority over the accounts of non-United States persons, to be eligible account managers regardless of whether the foreign advisor has been granted an exemption pursuant to Rule 30.10. 15

As noted in the proposal, the amended rule does not apply to associated persons or introducing brokers exempt from Commission registration as CTAs pursuant to Rule 4.14(a)(3) and (6). 16 As also noted in the proposed rule, the Commission will retain antifraud and antimanipulation authority over account managers who are exempt from registration. The Commission notes that foreign advisers would be foreign brokers or foreign traders subject to Commission Rule 15.05, which makes the FCMs through which foreign advisers make or cause to be made trades the agents of the foreign advisers for purposes of communications from the Commission. 17

The Commission has converted the disclosure requirement of Rule 1.35(a-1) to an information availability requirement. Under the amended rule, account managers are required to make the following information available to customers upon request: (1) The general nature of the allocation methodology the account manager uses; and (2) summary or composite data sufficient for that customer to compare its results with those of other relevant customers and, if applicable, any account in which the account manager has an interest. In addition, the Commission has added a requirement that account managers make available information on whether accounts in which the account manager may have any interest may be included with customer accounts in bunched orders eligible for post-execution allocation. 18

One commenter, John Henry & Company, suggested that the amended rule clarify the definition of “results” to include only the result of executions and allocations as opposed to a broader measure such as account performance results. The Commission agrees. Therefore, under the amended Rule 1.35(a-1), account managers must only make available the results of executions and allocations to comply with Rule 1.35(a-1)(5)(ii)(C).

The amended rule clarifies the allocation procedures for post-execution allocation of bunched orders. In particular, the rule makes clear that the Commission will examine allocation fairness over time, rather than trade-by-trade.

The amended rule requires that account managers observe three requirements when allocating post-execution. First, pursuant to Rule 1.35(a-1)(5)(iii)(A), allocations must be fair and equitable. No account or group of accounts may receive consistently favorable or unfavorable treatment. Second, to determine whether the account manager is allocating fills fairly, the amended rule mandates that account managers use an allocation methodology sufficiently objective and specific to permit independent verification of the fairness of the allocation. 19 The final rule permits the account manager to exercise discretion over the allocation methodology, recognizing that allocation strategies may need to vary in order to treat all customers fairly. However, the Commission must be able to reconstruct the allocation methodology sufficiently to verify that the account manager is acting without bias.

One commenter, Paul H. Bjarnason, Jr., expressed concern that the amended rule may allow biased allocations by unscrupulous account managers. To combat biased allocations, Mr. Bjarnason recommended that the amended rule define allocation bias and require measurement of it with an appropriate accounting system. In addition, Mr. Bjarnason suggested that the amended rule require account managers to track for bias in their trade allocations.

As noted above, the Commission mandates that allocations be fair and equitable. The Commission agrees that account managers should diligently monitor for bias in their trade allocations and notes that NFA, in its interpretive notices, provides guidance on the type of allocation methodologies designed to provide non-preferential treatment. 20 In its comment letter, NFA notes that it will amend its interpretive notices regarding bunched orders, but will retain the requirement that CTAs use an allocation methodology designed to provide non-preferential treatment for all accounts. 21 Thus, given that NFA will be retaining this requirement, the Commission believes that it is unnecessary to modify the rule to define allocation bias further.

The third requirement that account managers must observe under the amended rule is to provide information to FCMs no later than a time sufficiently before the end of the day the order is executed to ensure that clearing records identify the ultimate customer for each trade. FIA, in its comment, noted a discrepancy in the proposing release. FIA noted that the preamble to the proposed rule stated that account managers must provide allocation information to FCMs in a time sufficiently before the end of the “trading session,” although the proposed rule text stated that account managers must provide allocation information sufficiently before the end of the “trading day.” In response, the Commission wishes to make clear that account managers must provide allocation information to FCMs before the end of the trading day during which the order is executed.

As noted above, the amended rule clarifies the respective responsibilities of account managers and FCMs. 22 Account managers are responsible for the allocation of bunched orders, not FCMs. Comments submitted by FCMs stated that the proposed amendments accurately reflect today's increasing use of electronic order entry systems. As Goldman Sachs noted in its comment, “[t]he wide use of give-up arrangements means that an account manager's transactions on behalf of its clients frequently are executed through one FCM and later cleared through several different FCMs * * *. An FCM, therefore may have no reason to know that an order has been executed for a client's account until the transaction has been executed and cleared.”

All FCMs will continue to have responsibility to monitor for unusual account activity. As noted in the proposed release, an interpretive notice accompanying NFA Compliance Rule 2-10, states that “[t]he FCM has certain basic duties to its customers, including the duty to supervise its own activities in a way designed to ensure that it treats its customers fairly. Specifically, an FCM would violate this duty if it has actual or constructive notice that allocations for its customers may be fraudulent and fails to take appropriate action. An FCM with such notice must make a reasonable inquiry into the matter and, if appropriate, refer the matter to the proper regulatory authorities.”  23

Under the amended rule, account managers have a responsibility to allocate trades fairly and equitably and FCMs must monitor account managers for unusual account activity. Paul H. Bjarnason, Jr., in his comment, expressed concern that, although account managers and FCMs have a duty to ensure that customers receive fair treatment, the amended rule may not prescribe sufficient oversight of allocations. Mr. Bjarnason suggests that account managers submit allocation reports to NFA and that NFA provide adequate audits of trade allocations. In response, as explained below, the Commission will require that account managers keep records sufficient to demonstrate that all allocations are fair and equitable and that the allocation methodology used by the account manager is objective. These records will be available to the Commission and other appropriate regulatory agencies. Customers will also have access to this information as well. In addition, the Commission notes that NFA schedules CTA audits using a risk-based auditing system that incorporates a regular auditing cycle. In its comment, NFA stated that any complaint involving fraudulent allocations would result in an immediate examination of any account manager registered with the Commission as a CTA. Therefore, given the recordkeeping requirements of the amended rule and NFA oversight, the Commission has determined to adopt the provision as proposed.

Amended Rule 1.35(a-1)(5)(vi) requires that account managers keep two types of records. First, account managers must keep records of information maintained pursuant to amended Rule 1.35(a-1)(5)(ii). Second, account managers must make records available that allow independent verification of the fairness of the account manager's allocation methodology as required in Rule 1.35(a-1)(5)(iii). The records kept pursuant to amended Rule 1.35(a-1)(5)(iv) must be made available to any representative of the Commission, the United States Department of Justice, or other appropriate regulatory body.

The amended rule contains a provision to address cases in which account managers fail to provide the Commission with the information requested pursuant to amended Rule 1.35(a-1)(5)(iv)(A) or (B). Specifically, the Commission may prohibit the account manager from submitting orders for execution on designated contract markets and prohibit FCMs from accepting orders from such account managers. Commission action under this provision would not require prior notice and hearing. The failure of an account manager to respond to a request for information under this rule would be sufficient to trigger the prohibition. Any account manager that believes he or she is adversely affected by this process may use the procedures outlined in Rule 21.03(g). 24 Any prohibitions imposed pursuant to this Rule 1.35(a-1)(5)(iv)(D) would be without prejudice to any other remedies the Commission or any other regulatory body may have against the account manager in question for violation of the rule or any other legal requirements. 25

Two commenters, MFA and John Henry & Company, expressed concern that the proposed information request provision would be too severe. MFA suggested that the standard of failure to provide requested information should be revised to “willful failure to provide” requested information. In the alternative, MFA suggested that the prohibition should be limited to the prohibition of the use of bunched orders, rather than a blanket prohibition of trading on all contract markets. John Henry & Company echoed MFA's concern, suggesting that the standard of failure to provide requested information should be revised to “willful failure to provide.”

The Commission recognizes that prohibiting account managers from trading on contract markets would have a serious impact on the account manager and possibly the account manager's customers. The Commission notes that this approach is the same as that in similar provisions in the Act and rules and that the prohibition can only be invoked by the Commission, itself, when it has reason to believe that an account manager has failed to provide information requested pursuant to paragraph (a-1)(5)(iv)(A) or (a-1)(5)(iv)(B). 26 In addition, account managers will have the opportunity to have a hearing to contest the prohibition. 27 Thus, weighing the impact of this provision on account managers with the interest of protecting customers, the Commission has determined to adopt the provision as proposed, that a failure to answer a Commission request for information will result in a prohibition of trading on all contract markets.

The amended rule also provides that FCMs must retain certain records. Pursuant to amended Rule 1.35(a-1)(5)(iv)(C), FCMs that execute trades for orders eligible for bunching, or that carry accounts to which contracts executed for such orders are allocated, must maintain records that identify each order subject to post-execution allocation and the accounts to which contracts executed for such order are allocated. 28

In order for FCMs to keep records required pursuant to the rule, account managers employing post-execution allocation procedures generally would be expected to forward written allocation instructions to the clearing firm by facsimile, e-mail, or other electronic means. In those instances in which allocation instructions are furnished orally, the FCM must create a written record of the account manager's instructions. In each case, these records will be available to the Commission and other regulatory agencies or self-regulatory organizations.

As noted above, the Commission is clarifying the relative responsibilities of FCMs and account managers. Therefore, the amended rule, as proposed, deletes the requirement that account managers send certifications of their compliance with Rule 1.35(a-1) to FCMs. In addition, as the Commission is converting the recordkeeping requirement into an information availability requirement; the amended rule, as proposed, deletes the requirement that self regulatory organizations must adopt procedures to determine compliance with the previous rule's recordkeeping requirements.

The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601 et seq. , requires that agencies, in promulgating rules, consider the impact of those rules on small businesses. The Commission has previously determined that contract markets  29 , futures commission merchants  30 , registered commodity pool operators  31 and large traders  32 are not “small entities” for purposes of the Regulatory Flexibility Act. Although the Commission did not receive any comments on the impact of the amended rule on “small entities,” some account managers may be considered “small entities” for the purposes of the Regulatory Flexibility Act. In such cases, the amendments to the rule will have the net effect of decreasing the regulatory burden for such small entities. In addition, the Commission has previously determined to evaluate within the context of a particular rule proposal whether all or some commodity trading advisors should be considered “small entities” for purposes of the Regulatory Flexibility Act and, if so, to analyze the economic impact on commodity trading advisors of any such rule at that time. 33 Commodity trading advisors who would place eligible orders pursuant to these procedures would likely do so for multiple clients and would likely be participating as investment managers in more than one financial market. Accordingly, the Commission does not believe that commodity trading advisors should be considered “small entities” for purposes of this rule.

This rulemaking contains information collection requirements. As required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq., the Commission has submitted a copy of the rule amendments to the Office of Management and Budget (OMB) for its review. No comments were received in response to the Commission's invitation in the proposed rules to comment on any potential paperwork burden associated with this regulation.

Section 15(a) of the Act requires the Commission to consider the costs and benefits of its action before issuing a new regulation under the Act. By its terms, Section 15(a) does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the proposed regulation outweigh its costs. Rather, Section 15(a) simply requires the Commission to “consider the costs and benefits” of its action.

Section 15(a) further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: Protection of market participants and the public; efficiency, competitiveness, and financial integrity of futures markets; price discovery; sound risk management practices; and other public interest considerations. Accordingly, the Commission could in its discretion give greater weight to any one of the five enumerated areas and could in its discretion determine that, notwithstanding its costs, a particular rule was necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the Act.

The amended rule is intended to facilitate increased flexibility and consistency, and to rationalize application of Commission regulations to entities subject to other regulatory frameworks. The Commission is considering the costs and benefits of these rules in light of the specific provisions of section 15(a) of the Act:

1. Protection of market participants and the public.

While amended Rule 1.35(a-1)(5) is expected to lessen the burden imposed upon FCMs and account managers, market participants and the public will be protected by requirements in the allocation procedure. Accordingly, the amended rule should have no effect on the Commission's ability to protect market participants and the public.

2. Efficiency and competition.

The amended rule is expected to benefit efficiency in the commodity futures and options markets, resulting in greater liquidity and market efficiency.

3. Financial integrity of futures markets and price discovery.

The amended rule should have no effect, from the standpoint of imposing costs or creating benefits, on the financial integrity or price discovery function of the commodity futures and options markets.

4. Sound risk management practices.

The amended rule should have no effect on sound risk management practices.

5. Other public interest considerations.

The amended rule will also take into account certain effects of legislative changes and the passage of time.

After considering these factors, the Commission has determined to issue the amended rule.

The Federal Energy Regulatory Commission published in the Federal Register of April 21, 2003, (68 FR 19610) a final rule amending its accounting and financial reporting requirements for asset retirement obligations. Inadvertently, Gas Plant Account 364.9 (Asset retirement costs for base load liquefied natural gas terminaling and processing plant) and the instruction related to this account were not incorporated into the Uniform System of Accounts for natural gas companies in part 201 of the Commission's regulations. To address this omission, the Commission will publish in the Federal Register the following correction to the final rule document that was published in the Federal Register at 68 FR 19610, on April 21, 2003.

Schering-Plough Animal Health Corp., 1095 Morris Ave., Union, NJ 07083, filed NADA 141-193 that provides for veterinary prescription use of ZUBRIN (tepoxalin) Tablets for the control of pain and inflammation associated with osteoarthritis in dogs. The NADA is approved as of March 31, 2003, and the regulations in part 520 (21 CFR part 520) are amended by adding new § 520.2340 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

Under section 512(c)(2)(F)(i) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360b(c)(2)(F)(i)), this approval qualifies for 5 years of marketing exclusivity beginning March 31, 2003.

The agency has determined under 21 CFR 25.33(d)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

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

Pfizer, Inc., 235 East 42d St., New York, NY 10017-5755, filed a supplement to NADA 141-199 for RIMADYL (carprofen) Injectable used for the relief of pain and inflammation associated with osteoarthritis in dogs. The supplemental NADA provides for veterinary prescription use of a once daily, 2-milligram-per-pound dosage of carprofen solution by subcutaneous injection. The supplemental application is approved as of March 25, 2003, and the regulations are amended in 21 CFR 522.312 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and Cosmetics Act (21 U.S.C. 360b(c)(2)(F)(iii)), this approval qualifies for 3 years of marketing exclusivity beginning March 25, 2003.

The agency has determined under § 25.33(d)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

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

FDA has discovered certain errors that were inadvertently included in the agency's codified regulations for part 601 (21 CFR part 601). In the Federal Register of December 11, 1992 (57 FR 58942), we published a final rule that, among other things, established subpart E of part 601, which encompasses §§ 601.40 through 601.46. Currently, § 601.43(a) refers to § 601.40, instead of the correct § 601.41; § 601.43(b) refers to § 601.40, instead of the correct § 601.42. Accordingly, we are amending § 601.43(a) by replacing the incorrect reference to § 601.40 with a reference to § 601.41, and we are amending § 601.43(b) by replacing the incorrect reference to § 601.40 with a reference to § 601.42. Publication of this document constitutes final action under the Administrative Procedure Act (5 U.S.C. 553). FDA has determined that notice and public comment are unnecessary because this amendment is nonsubstantive.

These temporary regulations are being issued without prior notice and public procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553). For this reason, the collection of information contained in these regulations has been reviewed and, pending receipt and evaluation of public comments, approved by the Office of Management and Budget under OMB control number 1545-1840. Responses to this collection of information are required by the IRS for taxpayers to obtain a benefit (an automatic extension of time to file certain information or exempt organization returns).

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

For further information concerning this collection of information, and where to submit comments on the collection of information and the accuracy of the estimated burden, and suggestions for reducing this burden, please refer to the preamble to the cross-referencing notice of proposed rulemaking published in the Proposed Rules section of this issue of the Federal Register .

Books and records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.

This document contains amendments to 26 CFR parts 1, 31, and 602 under section 6081 of the Internal Revenue Code. Section 6081(a) provides that the Secretary may grant a reasonable extension of time for filing any return, declaration, statement, or other document required by Title 26 or by regulations. Except in the case of taxpayers who are abroad, no such extension shall be for more than 6 months. The regulations under section 6081 provide specific rules taxpayers must follow to request an extension of time to file Federal tax returns.

Under the generally applicable rule, a taxpayer must submit an application for the extension on or before the due date of the return. The application must be in writing, must be properly signed by the taxpayer or his duly authorized agent, and must clearly set forth the particular tax return for which the extension of the time for filing is desired and a full recital of the reasons for requesting the extension. These rules apply to all returns other than those for which the regulations provide special rules. In addition, the Employment Tax Regulations provide rules for employers to obtain an extension of time to file the Social Security Administration copy of Forms W-2 and W-3. Under those rules, the request must contain a concise statement of the reasons for requesting the extension.

Filers and transmitters of information returns on Form 1099 (series), 1098 (series), 5498 (series), W-2 (series), W-2G, 1042-S, and 8027 can obtain an extension of time to file these information returns by submitting a signed paper Form 8809, “Request for Extension of Time to File Information Returns.” The extensions are most often for a period of 30 days. Filers and transmitters may thereafter request an additional 30-day extension. The extensions apply only to the filing with the government. The filer or transmitter is still required to provide statements to the recipients by the date specified in the Code or the regulations.

Currently, in compliance with the regulations, Form 8809 requires a signature and asks for an explanation of the reasons for the request for an extension. In current practice, however, the explanation is not a determining factor for the initial extension. If the filer supplies the name, address, Employer Identification Number, tax year, and type of form(s), the initial extension is routinely granted. An extension beyond the initial 30-day period will not be granted, however, unless the filer provides a detailed explanation.

These temporary regulations allow filers and transmitters to request an automatic 30-day extension of time to file without having to sign Form 8809 and provide an explanation. An explanation and a signature are required if filers and transmitters need additional time to file after receiving the automatic 30-day extension. These regulations also permit employers to obtain an extension of time to file the Social Security Administration copy of Forms W-2 and W-3 without providing a statement of the reasons for requesting the extension.

The new rules will allow the IRS to develop an effective online version of the extension request. Filers and transmitters will benefit from the simplified extension procedure that will provide immediate approval. The IRS will benefit from the efficiencies inherent in such a system and will move closer to achieving electronic filing goals.

Filers and transmitters are eligible for only one automatic extension of time to file. Filers and transmitters filing Forms W-2 on an expedited basis under section 31.6071(a)-1(a)(3)(ii) may receive an automatic extension of time to file Forms W-2 under Rev. Proc. 96-57, 1996-2 C.B. 389. These filers and transmitters are not eligible to obtain the 30-day automatic extension under § 1.6081-8T(b). If these filers and transmitters need additional time, they may request an extension under the generally applicable procedures for obtaining additional extensions of time to file Form W-2.

These temporary regulations also allow an exempt organization required to file a return on Form 990 (series), 1041-A, 4720, 5227, 6069, or 8870 an automatic three-month extension of time to file if (a) an application is submitted on Form 8868, “Application for Extension of Time To File an Exempt Organization Return,” (b) the application is filed on or before the date the return is due, (c) the application shows the full amount properly estimated as tax, and (d) the application is accompanied by full remittance of the amount properly estimated as tax that is unpaid as of the date prescribed for the filing of the return.

A signature and an explanation of the reasons for requesting the extension are not required for an exempt organization to receive the automatic three-month extension of time to file. If an exempt organization needs additional time to file a return after receiving the automatic three-month extension, the exempt organization may file a signed Form 8868 that explains in detail why the additional time is needed. The IRS may grant an additional three months for the exempt organization to file.

These regulations also remove § 1.6081-1T and §§ 31.6011(a)-5(b)(1) and 31.6081(a)-1(a)(2). Section 1.6081-1T is removed because it relates only to returns for tax years ending before February 1, 1985. Sections 31.6011(a)-5(b)(1) and 31.6081(a)-1(a)(2) are removed because they relate to information returns that are no longer required.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to the regulations. For the applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), refer to the Special Analyses section of the preamble to the cross-reference notice of proposed rulemaking published in the Proposed Rules section of this issue of the Federal Register . Pursuant to section 7805(f) of the Internal Revenue Code, these temporary regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small businesses.

The principal author of the regulations is Charles A. Hall of the Office of Associate Chief Counsel, Procedure and Administration (Administrative Provisions and Judicial Practice Division).

The Burlington Northern Santa Fe Railway requested a temporary deviation on May 9, 2003 to allow time to conduct preventative maintenance to the Beardstown Railroad Drawbridge, across the Illinois Waterway, mile 88.8 at Beardstown, Illinois. The Beardstown Railroad Drawbridge currently operates in accordance with 33 CFR 117.393(a) which requires that the drawbridge be maintained in the open-to-navigation position and closed only for the passage of rail traffic. In order to replace the up and down haul cables, the bridge must be kept in the closed to navigation position. This deviation allows the bridge to remain closed to navigation for three separate 10 1/2 -hour intervals from 7 a.m. until 5:30 p.m., June 9, 2003, from 7 a.m. until 5:30 p.m., June 10, 2003, and from 7 a.m. until 5:30 p.m., June 11, 2003. Vessels not exceeding the vertical clearance of the drawbridge may pass under the drawbridge during repairs. There are no alternate routes for vessels transiting through mile 88.8 on the Illinois Waterway. The drawbridge will be incapable of opening for emergencies during the 10 1/2 -hour repair periods.

The Beardstown Railroad drawbridge provides a vertical clearance of 19.6 feet above normal pool in the closed to navigation position. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. This deviation has been coordinated with waterway users. No objections were received.

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

The Illinois Department of Transportation requested a temporary deviation on April 7, 2003 to allow time to conduct preventative maintenance to the Hardin Drawbridge, across the Illinois Waterway, mile 21.6 at Hardin, Illinois. The Harding Drawbridge currently operates in accordance with 33 CFR 117.5 which requires the drawbridge to open on signal for passage of vessel traffic. In order to replace wire rope and trunnions, re-boring of sheaves for new trunnions and replacing secondary enclosed gear reducers, the bridge must be kept in the closed to navigation position. This deviation allows the bridge to remain closed to navigation for 14 days from 6 a.m., August 18, 2003 until 6 p.m., August 31, 2003. Vessels not exceeding the vertical clearance of the drawbridge may pass under the drawbridge during repairs. There are no alternate routes for vessels transiting through mile 21.6 on the Illinois Waterway. The drawbridge will be incapable of opening for emergencies during the 14-day repair period.

The Hardin drawbridge provides a vertical clearance of 25.9 feet above pool stage in the closed to navigation position. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. This deviation has been coordinated with waterway users. No objections were received.

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

Regulatory Information

On September 12, 2002, we published a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulations; Manasquan River, New Jersey” in the Federal Register (67 FR 57773). We received 14 letters commenting on the proposed rule. No public meeting was requested, and none was held.

On March 20, 2003, we published a supplemental notice of proposed rulemaking (SNPRM) entitled “Drawbridge Operation Regulations; Manasquan River, New Jersey” in the Federal Register (68 FR 13641). We received 10 letters commenting on the supplemental proposed rule. No public meeting was requested, and none was held.

The Route 70 Bridge is a movable bridge (single-leaf bascule) owned and operated by the New Jersey Department of Transportation (NJDOT) connecting the Borough of Point Pleasant and Brick Township in Ocean County with Brielle Borough and Wall Township in Monmouth County. Currently, Title 33 Code of Federal Regulations (CFR) Part 117.727 requires that the draw of the S70 Bridge, mile 3.4 at Riviera Beach, shall open on signal from 7 a.m. to 11 p.m. The draw need not be opened from 11 p.m. to 7 a.m. In the closed position to vessels, the bridge has a vertical navigation clearance of approximately 15 feet at mean high water.

On behalf of residents and business owners in the area, NJDOT requested changes to the existing regulations for the Route 70 Bridge in an effort to balance the needs of mariners and vehicle drivers transiting in and around this seaside resort area. Route 70 is a principal arterial highway that serves as a major evacuation route in the event of tidal emergencies. Bridge openings at peak traffic hours during the tourist season often cause considerable vehicular traffic congestion while accommodating relatively few vessels. To ease traffic congestion, NJDOT requested that the movement of marine traffic be regulated. We reviewed NJDOT's yearly drawbridge logs for 1999, 2000, and 2001, which revealed that the bridge opened for vessels 1028, 1026, and 1020 times, respectively. During the peak boating season from May through September, the logs revealed from 1999 to 2001, the bridge opened 750, 792, and 794 times, respectively. With an average of only five openings per day during the prime boating period, NJDOT contends that vessel traffic through the bridge is minimal. Also, NJDOT officials, residents and business owners pointed out that from 4 p.m. to 7 p.m. on Fridays, vehicular traffic congestion is at its peak. During the peak boating season from May through September, the logs revealed from 1999 to 2001, the bridge opened from 4 p.m. to 7 p.m. on Fridays, 36, 35, and 26 times, respectively. Limiting the openings of the draw year-round from 7 a.m. to 11 p.m. to once an hour and no openings required from 4 p.m. to 7 p.m. on Fridays would enhance vehicular traffic without significantly affecting vessel traffic. The Coast Guard received 14 comments on the NPRM; most suggesting additional changes to the proposed regulations.

Based on these comments and our further review of the bridge logs, the Coast Guard considered the minimal number of openings year-round during the closure period from 4 p.m. to 7 p.m. that included Monday through Thursday, an alternative proposal, as set forth in the SNPRM, was appropriate.

The Coast Guard received 14 comments on the NPRM. Eleven letters supported the proposed changes to the regulations, two responses opposed the proposed changes and another comment suggested a height restriction placed on vessels that travel under the bridge.

Of the 11 letters supporting the proposed changes to the regulations, five letters went further in asking to extend the suggested “no openings” on Fridays from 4 p.m. to 7 p.m. to include Monday through Thursday; two letters supported the proposal without changes; one comment requested commuter hours from 6:30 a.m. to 8:30 a.m. and 5 p.m. to 7 p.m.; one comment requested no openings of the bridge on any days between 5 p.m. and 7 p.m.; and another letter considered operating the bridge to open hourly from 8 a.m. to 4 p.m. during the months of March, April, October and November and only open with a 24-hour advance notice during December, January and February. Two comments, one from the U.S. Fish and Wildlife Service and the other from the New Jersey Historic Preservation Office, had no objection to the issuance of the proposed regulations.

Two of the remaining three comments opposed the proposed changes to the regulations and one had no opinion to the proposed regulation. One comment from a yacht club stated that their membership objects to any changes to the proposed regulations for the following reasons: safety, the environment and liability losses. Another comment had suggested a reduction of the bridge closure to 5 p.m. to 7 p.m. especially if done five days a week, and emergency openings for boater safety. The Coast Guard responded to these comments and indicated that in the event of marine emergency Title 33 CFR part 117.31, “Operation of draw for emergency situations,” adequately provides for vessels for unscheduled openings of the bridge. The last comment requested a height restriction placed on vessels with lowerable appurtenances ( i.e. antennas etc.) that transit under the bridge. Further review of the bridge logs reveal from 1999 through 2001, the bridge opened year-round from 4 p.m. to 7 p.m., Mondays through Thursdays, 72, 73, and 60 times respectively. The Coast Guard responded to the comments by limiting the required openings of the draw year-round from 7 a.m. to 11 p.m. to once an hour with closure periods from 4 p.m. to 7 p.m. Mondays through Fridays.

The Coast Guard received ten comments on the SNPRM. Eight supported, one opposed and another had no opinion to the supplemental proposal. Of the eight supporting the supplemental proposed changes, four also indicated that passage under the bridge can also be accomplished by vessel owners lowering their lowerable appurtenances ( i.e. antennas, outriggers etc.), two supported the regulations without changes, one was a resolution from the Borough of Brielle in support of the regulations, and one from the U.S. Fish and Wildlife Service which had no objections to the issuance of the supplemental proposed regulations.

One of the remaining two comments opposed and the other had no opinion to the supplemental proposed changes. The opposing comment considered the weekday closure period from 4 p.m. to 7 p.m. a major inconvenience to commercial fishing boats entering Manasquan Inlet. The remaining comment only indicated that the bridge should never have been “on demand.” All comments and the Coast Guard's written response to those comments are contained in the docket.

Based on these comments to the new proposal, the lowering of non-structural vessel appurtenances that are not essential to navigation and the minimal number of openings identified by the bridge logs, the Coast Guard is amending 33 CFR 117.727 with a new provision to limit the openings of the draw year-round from 7 a.m. to 11 p.m. to once an hour with closure periods from 4 p.m. to 7 p.m. Mondays through Fridays.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We reached this conclusion based on the fact that the final rule has only a minimal impact on maritime traffic transiting the bridge. Mariners can plan their trips in accordance with the scheduled bridge openings and lower their non-structural appurtenances that are not essential to navigation to further minimize delay.

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

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

This final rule will not have a significant economic impact on a substantial number of small entities because the rule only adds minimal restrictions to the movement of navigation and mariners who plan their transits in accordance with the scheduled bridge openings can minimize delay.

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

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

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

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

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

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

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not 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 would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

To help the Coast Guard establish regular and meaningful consultation and collaboration with Indian and Alaskan Native tribes, we published a notice in the Federal Register (66 FR 36361, July 11, 2001) requesting comments on how to best carry out the Order. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

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. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. The final rule only involves the operation of an existing drawbridge and will not have any impact to the environment. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES .

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Similarly, 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 . The permit application was not received in time to publish an NPRM followed by a final rule before the effective date. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments previously with regard to this event.

A temporary safety zone is necessary to ensure the safety of vessels and spectators from the hazards associated with fireworks display. Based on recent accidents that have occurred in other Captain of the Port zones, and the explosive hazard of fireworks, the Captain of the Port Chicago has determined fireworks launches in close proximity to watercraft pose significant risks to public safety and property. The likely combination of large numbers of recreational vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks.

The safety zone will encompass all waters of Lake Michigan bounded by the arc of a circle with a 1000 foot radius with its center in approximate position 41° 52′15″ N; 087° 36′44″ W. These coordinates are based upon North American Datum 1983 (NAD 83). All vessels except those officially participating in this event are prohibited from entering the safety zone without the permission of the Captain of the Port Chicago or his on-scene representative. The on-scene representative will be the Patrol Commander, and may be contacted via VHF Channel 16.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed this rule under that Order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS).

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

This determination is based on the minimal time that vessels will be restricted from the zone and the zone is in an area where the Coast Guard expects insignificant adverse impact to mariners from the zones' activation.

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

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

This rule would affect the following entities, some of which might be small entities: the owners or operators of commercial vessels intending to transit a portion of an activated safety zone.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: the zone is only in effect for two hours on the day of the event.

The designated area is being established to allow for maximum use of the waterway for commercial vessels to enjoy the fireworks display in a safe manner. In addition, commercial vessels transiting the area can transit around the area. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Chicago ( see ADDRESSES. )

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

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that 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 would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule would 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.

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

We have considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph 32(g) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A written categorical exclusion determination is available in the docket for inspection or copying where indicated under ADDRESSES.

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.

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.

In a proposed rule published on April 15, 2003, in the Federal Register (68 FR 18174-18176), the Postal Service put forward for public comment revised language to the DMM that would clarify the mailing standards governing the use of Delivery Confirmation service or Signature Confirmation service with First-Class Mail parcel-shaped mailpieces and Package Services parcel-shaped mailpieces. For this clarification, the general term “box,” as used in part of the original language of those mailing standards to identify “parcel-shaped” mail, is to be replaced with the specific dimensional definitions of a parcel currently used in DMM C050 for machinable parcels, irregular parcels, and outside parcels.

The term “box” was initially adopted when classification changes extended the use of Delivery Confirmation service and Signature Confirmation service to First-Class Mail parcels only and confined the use of those two special services to Package Services parcels only. Those classification changes took effect on June 30, 2002, as announced on April 16, 2002, in the Federal Register (67 FR 18684-18771).

The term “box” had been carefully selected for the classification changes for two important reasons. First, the term offered a functional and convenient description of a parcel that could be easily understood by the general mailing public, parcel and merchandise shippers, and Postal Service employees at retail units and business mail entry units. Second, the term permitted a wide range of First-Class Mail and Package Services mailpieces—including pieces measuring 3/4 inch thick or less—to qualify as “parcel-shaped” mail if prepared in boxes. This second reason was also important because most mailpieces measuring 1/4 inch thick or less are generally categorized as letter-size mail (“letters”), and most mailpieces measuring between 1/4 and 3/4 inch thick are generally categorized as flat-size mail (“flats”) under DMM C050.

The original mailing standards underlying the term “box,” which this final rule now effectively revises, were first presented in sections C100.5.0 and C700.1.0h of Issue 57 of the DMM, dated June 30, 2002. Those original mailing standards permitted the use of either special service with a First-Class Mail mailpiece or a Package Services mailpiece only if the piece met the following conditions:

a. Has an address side with enough surface area to fit the delivery address, return address, postage, markings and endorsements, and special service label; and

b. Is in a box or, if not in a box, is more than 3/4 inch thick at its thickest point.

In the case of First-Class Mail parcels and Package Services parcels, these standards reflected both a customer need and an operational requirement to maintain high rates of successful scanning of Delivery Confirmation barcodes and Signature Confirmation barcodes by segregating the pieces With these barcodes from letter-size and flat-size mailpieces.

Nevertheless, the use of the term “box” to define a parcel has continued to create uncertainty among customers and Postal Service employees in determining whether specific mailing containers qualify as “boxes” and whether specific mailpieces qualify as “parcel-shaped” mail. This uncertainty comes into play especially for mailpieces prepared in lightly constructed or flimsy containers. These pieces can easily flatten or compress during transportation and mail processing into flat-size pieces or, on occasion for smaller containers, even into letter-size pieces. Flattened or compressed pieces, even if originally prepared as parcels, no longer meet the intent or the function of parcels. As a consequence, they are not handled in the parcel mailstream. Instead, these pieces are generally processed as flats and, as a result, invariably fail to receive a Delivery Confirmation or Signature Confirmation scan.

One way to remove the uncertainty about the term “box” would be to define a parcel as any mailpiece that is neither letter-size nor flat-size. This approach at first seems relatively straightforward in resolving the uncertainty surrounding the term “box,” by providing a practical definition that can be reasonably and uniformly applied as a mailing requirement. Even with a specification such as “any mailpiece thicker than 3/4 inch is not letter-size or flat-size,” customers and employees would encounter two new and unforeseen issues:

• Merchandise items sent as First-Class Mail or Package Services pieces that are thinner than 3/4 inch thick—such as compact discs, coins in flat plastic display cases, and some children's picture books—would not be eligible for the use of Delivery Confirmation service or Signature Confirmation service because their dimensions of length, height, and, most notably, thickness would generally fall within the dimensional definition of letter-size or flat-size mail.

• Any qualifying mailpiece that passed the thickness requirement (that is, the piece measured more than 3/4 inch thick) but was not uniformly thick might also be ineligible for the use of either special service if part of the mailpiece could, in some cases, fall within the dimensional requirements for either flat-size mail or letter-size mail.

To overcome these two issues and to ensure that customers and parcel shippers can benefit from the use of Delivery Confirmation service or Signature Confirmation service in such cases, the Postal Service is adopting the current three parcel definitions in DMM C050 for a machinable parcel, an irregular parcel, and an outside parcel for the purposes of defining First-Class Mail parcels and Package Services parcels eligible for the use of Delivery Confirmation service or Signature Confirmation service.

The Postal Service has also added a clarification to the descriptions of Delivery Confirmation service and Signature Confirmation service with information that states that some statutes and regulations governing the mailing of documents with legal significance may require the use of Certified Mail or Registered Mail rather than Delivery Confirmation service or Signature Confirmation service.

The Postal Service received three comments to its proposed rule. One commenter was a third-party provider of printing, mailing, and related services to the merchandising, magazine, book, directory and financial markets. The second commenter was a software developer for certain mailing applications and electronic book publishing. The third commenter was a box and carton manufacturer.

The first commenter, who was the third-party provider, stated that his firm mails more than 150 million parcels each year for a large client base. This commenter requested the extension of the use of Signature Confirmation service to Standard Mail parcels. This commenter correctly noted that the use of Signature Confirmation service was extended on June 30, 2002, to First-Class Mail parcels but not to Standard Mail parcels. This commenter then pointed out that the physical characteristics of both First-Class Mail parcels and Standard Mail parcels are similar in regard to size, shape, and weight (First-Class Mail parcels are permitted to weigh up to 13 ounces and Standard Mail parcels are permitted to weigh up to but not including 16 ounces.)

Although using Signature Confirmation service with Standard Mail parcels would provide many shippers with a more enhanced level of service than Delivery Confirmation service, limited market research has not shown a large potential demand for this special service for these reasons:

• The comparatively high fee for the special service. Except for Priority Mail, which has no additional charge for the Delivery Confirmation electronic option, the difference between electronic option fees for the two services for other eligible classes of mail is considerable: $1.30 for Signature Confirmation service compared with $0.13 for Delivery Confirmation service. The Signature Confirmation fee is also high in relation to typical Standard Mail postage. If the use of Signature Confirmation service were extended to Standard Mail pieces, the electronic option would probably be the option required.

• The generally low extrinsic value of most items shipped by Standard Mail. Shippers sending valuable items tend to use classes of mail such as Priority Mail or First-Class Mail that can provide additional benefits and permit a larger range of special service options.

From a procedural and legal perspective, the Postal Service cannot introduce the use of Signature Confirmation service with Standard Mail parcels without proceeding through a rate and classification filing with the Postal Rate Commission. Such a filing would require the collection of costing data and extensive market research that would be unreasonable to undertake outside an omnibus rate case. Even though this comment is beyond the scope of this final rule, the Postal Service appreciates the recommendation and interest in this special service and plans to have the organizations responsible for managing the Delivery Confirmation and Signature Confirmation programs consider this recommendation as future plans are developed.

The software developer and the box manufacturer both commented that the proposed rule for DMM S918.1.2c and DMM S919.1.2c would provide mailers and the box manufacturing industry with the latitude of choosing materials and configurations that could produce mailing containers and mailpieces that would meet the intent of that standard.

Both commenters, however, added that a parcel, on average, must maintain a certain thickness to distinguish it from a letter-size or flat-size piece. These commenters believed that inserting such a clause or qualifier into the proposed standards would ensure that customers and shippers would adhere to the original intent of the mailing standards to limit Delivery Confirmation service and Signature Confirmation service to parcel-shaped First-Class Mail and parcel-shaped Package Services mailpieces. That intent, as correctly cited by the commenters, rests on the need to restrict the two special services to parcels in order to prevent entry of Delivery Confirmation pieces and Signature Confirmation pieces into the letter-size or flat-size mail processing streams, and thus ensure scanning of the Delivery Confirmation barcodes and the Signature Confirmation barcodes.

The Postal Service recognizes that, by adopting the current definitions of parcels as presented in DMM C050, some machinable parcels could range within the measurements defining either letter-size or flat-size mail. By creating a new minimum thickness above the current 1/4 -inch minimum required for machinable parcels, the Postal Service would, however, impose a hardship on mailers already mailing small merchandise items as machinable parcels and using Delivery Confirmation service or Signature Confirmation service for those parcels.

The Postal Service, therefore, does not plan to revise the current dimensional requirements for the parcel mail processing categories, which are understood and accepted by the mailing industry and the Postal Service. Moreover, any change to those requirements would complicate issues in mail acceptance by introducing two different thickness minimums for machinable parcels. As a consequence, the Postal Service is adding a rigidity requirement to the standards for machinable parcels that measure 3/4 inch thick or less only for the purposes of using the two special services in question as a means to prevent such pieces from collapsing into letter-size or flat-size mail.

Both the software developer and the box manufacturer strongly urged the Postal Service to develop a national process of certifying eligible mailing containers that meet the definition of a parcel for the purposes of using Delivery Confirmation service or Signature Confirmation service as described in DMM S918 and S919, respectively. Both commenters affirmed that a manufacturer can invest considerable resources in developing mailing containers that might be later rejected by Postal Service employees in some parts of the country. This rejection would also affect customers who purchase such containers and plan to use one of the two special services with either First-Class Mail or Package Services parcels.

The box and carton manufacturer conducted an informal test to determine the durability of certain prototype containers and the resultant Delivery Confirmation scan rate for those containers. The manufacturer stated that he mailed 100 empty prototype 5/8-inch-thick containers, which had been produced with two different paperboard thicknesses of clay-coated newsback paperboard. The manufacturer reported that half the containers were mailed from a business mail entry unit (BMEU) and the other half from a retail window to eight cities throughout the United States.

According to the same commenter, of the 100 mailpieces mailed, 99 received a delivery scan. In addition, the commenter claimed that 86% of the mailpieces maintained their parcel shape throughout mail processing and delivery. In addition to submitting a spreadsheet detailing the information for each mailing container, the commenter also provided three photographs showing the condition of delivered parcel-shaped pieces that he ranked as “best,” “average,” and “worst.”

Although the establishment of a national certification process for mailing containers has merit for box manufacturers in particular and for some customers in general, such a certification process would also increase the complexity and administrative burden on box manufacturers, on customers, and on the Postal Service. Furthermore, limiting the available types and sizes of mailing containers to those that have successfully passed a certification process could create unnecessary problems for certain mailers. Finally, certification of a container cannot always be done in the abstract, without regard to the contents within the container.

Establishing a national process for certifying the eligibility of specific mailing containers for Delivery Confirmation service and Signature Confirmation service would be similar to establishing a process for certifying the eligibility of envelopes and other containers for all other types of mailing or services. The Postal Service does not believe that such a process at this time would yield the greatest benefit to the largest number of customers and parcel shippers.

As far as the informal test conducted by the box and carton manufacturer, the Postal Service cannot validate such results as a form of certification. There are various testing institutions recognized throughout the shipping industry such as the International Safe Transit Association (ISTA), which supports the industry-wide development of effective packaging, methods, and logistic systems that prevent or reduce transportation and handling damage of packages.

The commenter did not explain how he mailed 50 pieces at the business mail entry unit, which normally accepts and verifies presorted rate mail or permit imprint mail. Permit imprint rate mail requires a minimum of 200 pieces or 50 pounds, even for single-piece rate First-Class Mail prepared with a permit imprint. Moreover, because First-Class Mail mailpieces may not weigh more than 13 ounces each, a mailer would need at this maximum weight per piece at least 62 13-ounce pieces in a mailing to qualify for the use of a permit imprint.

For the reasons presented in the proposed rule and those noted above in this final rule, and in consideration of the public comments received, the Postal Service adopts the following changes to the Domestic Mail Manual, which is incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.

An appropriate amendment to 39 CFR part 111 to reflect the changes will be published.

The State Implementation Plan (SIP) is a living document which the State can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997, (62 FR 27968) EPA revised the procedures for incorporating by reference (IBR) Federally-approved SIPs, as a result of consultations between EPA and the Office of Federal Register (OFR). The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997, Federal Register document. On September 8, 2000, EPA published a document in the Federal Register (65 FR 54413) beginning the new IBR procedure for Vermont. In this document EPA is doing the update to the material being IBRed.

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by updating citations.

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 August 11, 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).)

Chapter I, title 40, Code of Federal Regulations, is amended as follows:

The State Implementation Plan (SIP) is a living document which the State can revise as necessary to address the unique air pollution problems in the State. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997, (62 FR 27968) EPA revised the procedures for incorporating by reference (IBR) Federally-approved SIPs, as a result of consultations between EPA and the Office of Federal Register (OFR). The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997, Federal Register document. On August 9, 1999, EPA published a document in the Federal Register (64 FR 43083) beginning the new IBR procedure for Rhode Island. In this document EPA is doing the update to the material being IBRed.

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by updating citations.

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 August 11, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

The supplementary information is organized in the following order:

On October 23, 2002, EPA proposed in the Federal Register , approving certain portions of the proposed Washington Visibility SIP revision and taking no action on other provisions of the proposed SIP revisions. See 67 FR 65077, October 23, 2002. In that notice, EPA provided a 30 day review and comment period and solicited comments on our proposal. EPA received no comments. EPA is now taking final action on the SIP revision consistent with the published proposal.

Section 169A of the Federal Clean Air Act (CAA or Act) requires States to protect visibility in mandatory Class I Federal areas. Mandatory Class I Federal areas are specified large National Parks or Wilderness Areas. In Washington, there are 8 mandatory Class I Federal areas; the Mount Rainier National Park, North Cascades National Park, Olympic National Park, Alpine Lakes Wilderness Area, Glacier Peak Wilderness Area, Goat Rocks Wilderness Area, Mount Adams Wilderness Area, and Pasayten Wilderness Area. See 40 CFR 81.434. The Federal rules regulating visibility protection are set out in 40 CFR part 51, subpart P.

The Clean Air Act sets out a goal of preventing any future and remedying any existing impairment of visibility in mandatory Class I Federal areas. See 42 U.S.C. 7491. Employing a close coordination process among the state and the Federal Land Managers (FLMs), the Federal rules require monitoring of visibility in mandatory Class I Federal areas, as well as the development of a long-term strategy for making reasonable progress towards the national visibility goal. The visibility protection rules also provide for an assessment of visibility impacts from any new or major modification to a major stationary source that may affect mandatory Class I Federal areas. Additionally, in the event that a FLM certifies impairment of visibility in a mandatory Class I Federal area that could be caused, or contributed to, by an existing stationary facility, emission limitations representing Best Available Retrofit Technology (BART) may be imposed on the facility.

The Federal visibility rules were modified in 1999 to include provisions for addressing regional haze. See 64 FR 35714, July 1, 1999. Regional haze is visibility impairment which results from the cumulative impact of emissions from many point and non-point sources. All states are currently in the process of developing revisions to their SIPs to address the regional haze provisions. Therefore, the SIP submission under discussion in this action is not required to comply with the regional haze provisions of 40 CFR part 51, subpart P.

The initial proposed Visibility SIP for Washington was submitted by the State and approved in part by EPA on May 4, 1987, (52 FR 16243). EPA approved the Washington State Visibility Protection Program (with exceptions described below), certain provisions of 173-403 Washington Administrative Code (WAC) Implementation of Regulations for Air Contaminant Sources, and the 1983 Smoke Management Program. EPA disapproved section V.B., the new source review program, Appendix A, the Proposed Best Available Retrofit Technology (BART) rule, and the Proposed New Source Review Regulations.

40 CFR 51.302 provides the requirements for Visibility SIPs. These requirements and how the Washington Visibility SIP meets these requirements are summarized below.

The SIP needs to include a long-term (10-15 year) strategy that includes emission limitations, schedules of compliance, and other measures as deemed necessary to make reasonable progress toward the national goal. See 40 CFR 51.302(c)(2)(i). In general, Section VI of the proposed 1999 SIP revision provides a discussion of the long-term strategy, including measures for stationary sources, mobile sources, area sources, and interstate coordination. The long-term strategy must include:

• A strategy for evaluating visibility in mandatory Class I Federal areas by visual observation or other appropriate monitoring techniques. See 40 CFR 51.305(a). Section V of the proposed 1999 SIP revision provides for monitoring through the IMPROVE monitoring network and an assessment strategy.

• A provision for the available visibility data and a mechanism for its use in decisions required by the regulations. See 40 CFR 51.305(b). Section IX of the proposed 1999 SIP revision provides for the development and use of available data for SIP review and development.

• A strategy to address any existing impairment the FLM certifies to the State and integral vista of which the FLM notifies the State at least 6 months prior to plan submission. See 40 CFR 51.306(a)(1). Section I of the proposed 1999 SIP revision discusses certification of impairment in mandatory Class I Federal areas. Section III of the proposed 1999 SIP revision discusses integral vistas.

• A discussion, with reasonable specificity, why the long-term strategy is adequate for making reasonable progress. See 40 CFR 51.306(a)(3). Section VI of the proposed 1999 SIP revision discusses all source categories, the control measures that apply to them, and a qualitative assessment of how these are adequate for making reasonable progress. Section IX of the proposed 1999 SIP revision discusses the evaluation of progress toward achieving the national visibility goal.

• Coordination of the long-term strategy with other existing plans and goals, including those provided by affected FLMs. See 40 CFR 51.306(a)(3). Section IV of the proposed 1999 SIP revision provides for the consultation with FLMs for the review and revision of the visibility SIP and New Source Review rules.

• Provisions for periodic review and revision as appropriate of not less than every three years. See 40 CFR 51.306(c). This review must include:

(1) Progress achieved in remedying existing impairment;

(2) The ability of the long-term strategy to prevent future impairment;

(3) Any change in visibility since the last report;

(4) Additional measures, including the need for SIP revisions that may be needed to assure reasonable progress;

(5) The progress achieved in implementing BART and meeting other schedules set forth in the long-term strategy; and

(6) The impact of any exemption granted under 40 CFR 51.303.

(7) The need for BART to remedy existing visibility impairment of any integral vista.

Section IV of the proposed 1999 SIP revision provides for the review of the visibility SIP.

• Provisions for review of the impacts of any new or modified major stationary source. See 40 CFR 51.306(d). The Washington Department of Ecology has a fully delegated Prevention of Significant Deterioration (PSD) program. The Department of Ecology was notified of this delegation by letter dated February 7, 2002.

The plan must contain an assessment of visibility impairment and a discussion of how each element of the plan relates to preventing future or remedying existing impairment. See 40 CFR 51.302(c)(2)(ii). Section V of the proposed 1999 SIP revision provides for visibility monitoring of the mandatory Class I Federal areas. Section IV of the proposed 1999 SIP revision provides a general discussion of the effect of measures on preventing future and remedying existing impairment.

The State must identify and analyze for BART each existing stationary facility which may reasonably be anticipated to cause or contribute to impairment of visibility in any mandatory Class I Federal area where the impairment is reasonably attributable to that existing stationary facility. See 40 CFR 51.302(c)(4). The plan must also contain emission limitations representing BART for any existing stationary facility identified according to 40 CFR 51.302(c)(4).

The State has not determined that existing impairment in any mandatory Class I Federal area for which impairment has been certified can be reasonably attributed to a specific major stationary source.

The 1987 SIP included a list of “Preliminary Integral Vistas” that were proposed by the National Park Service (NPS). The 1987 SIP provides that until the NPS finalizes the list of vistas in accordance with 40 CFR 51.304, the panoramas listed in the January 15, 1981, Federal Register (Table III-2) will be protected under the visibility SIP. These integral vistas were never finalized by the NPS. Thus, there are no federally recognized integral vistas to be protected. In the interim, no emission limitation was established for a source that specifically protected an integral vista, nor is the State proposing to revise and relax an emission limitation established for integral vista protection. The 1999 proposed SIP revision removes the provisions that would have continued these protections. The Federal visibility regulations (40 CFR 51.304(d)) indicate that a state need not in its implementation plan list any integral vista the identification of which was not made in accordance with the criteria in 40 CFR 51.304(a). Since no integral vistas have been identified by the FLM, there is no relaxation of SIP emission requirements and since the 1999 proposed SIP revision meets the applicable requirements for visibility protection in mandatory Class I Federal areas, EPA proposes approval of this revision.

Washington's Smoke Management Plan (SMP) is a program designed to manage smoke impacts from the burning of silviculture and agriculture wastes. The SMP balances forest and agricultural land burning with preventing smoke from being carried to, or accumulating in, designated areas and other areas sensitive to smoke.

The SMP of 1998 submitted in the proposed 1999 Visibility SIP revision significantly improves the 1983 SMP included in the 1987 SIP. The 1983 SMP provided for reduced emissions from prescribed fires through optimization of fuel conditions ( i.e. dry fuel), improves ventilation and dispersion through meteorology, and minimizes impact by controlling smoke drift into populated areas. There was no consideration for protection of visibility in mandatory Class I Federal areas.

The 1998 SMP requires approval from the Resource Protection Division Manager, Department of Natural Resources for all prescribed fires. Approval requirements differ depending whether the fire is a “large fire” involving over 100 tons of fuel or a small fire. Large fire burn approval considers a number of factors including likelihood of smoke intrusion into populated areas or mandatory Class I Federal areas, air quality regulations, violation of emission reductions targets, violation of another state's air quality standards, and whether smoke will disperse within given timeframes. Operators of small fires (less than 100 tons of fuel) must call a toll-free phone number and follow the instructions that apply for that day and location of the proposed fire.

The SMP further requires emissions from prescribed fires be reduced by 20% from baseline levels (defined in the SMP) by December 1994 and until December 2000. Emissions from burning must be permanently reduced by 50% from baseline levels by December 2000.

The visibility protection provisions at 40 CFR part 51, subpart P suggest that states consider SMPs in developing long-term strategies for visibility protection. However, there are no specific Federal requirements for states to develop and adopt SMPs. In September 1992, the Environmental Protection Agency published The Prescribed Burning Background Document and Technical Information Document for Best Available Control Measures to assist states in the development of Smoke Management Plans [EPA-450/2-92-003].

The Centralia Power Plant (CPP) is a coal-fired electrical generating station that has a potential to emit (PTE) 90,000 t/yr Sulfur dioxide (SO2). It is a BART eligible source as defined by 40 CFR 51.301. It is located near the mandatory Class I Federal area, Mt. Rainier National Park in Washington state. The NPS has certified visibility impairment at Mt. Rainier National Park. The State of Washington has not determined that this visibility impairment is reasonably attributable to the CPP.

The SIP must contain emission limitations representing BART and schedules for compliance with BART for each existing stationary facility identified according to 40 CFR 51.302 (c)(4). The state needs to identify each existing facility which may reasonably be anticipated to cause or contribute to impairment of visibility in any mandatory Class I Federal areas where the impairment in the mandatory Class I Federal area is reasonably attributable to that existing stationary facility. The State has not identified CPP, or any other source or group of small sources as an existing facility that may reasonably be expected to contribute to visibility impairment to mandatory Class I Federal areas. Therefore, under 40 CFR 51.302(c)(4), a BART analysis is not required for CPP. In the future regional haze SIP, a BART analysis may be required for the CPP under 40 CFR 51.308(e).

In a separate activity, the State, SWAPCA, the NPS and U.S. Forest Service, owners of the CPP, and EPA entered into a negotiated agreement to establish emission limits for SO2, oxides of nitrogen (NO X ), and particulate matter with an aerodynamic diameter of less than 10 micrometers (PM-10) for the CPP. The SWAPCA, who has regulatory authority over the CPP, issued the CPP a Reasonably Available Control Technology (RACT) order under state law that contain the negotiated emission limitations. This RACT Order is included in the proposed 1999 Visibility SIP revision.

Both SWAPCA in their Technical Support Document for the RACT Order and EPA Region 10 have independently conducted an analysis of the emission limits in the RACT Order comparing them against what would have been required using the Clean Air Act definition of BART and EPA BART guidelines. Additional details on this analyses can be found in the Technical Support Document in the docket of this action. The conclusion of both analyses is that the RACT Order emission limits for SO2 and PM-10 represent BART. EPA is approving these emissions limitations as meeting the BART requirements of 40 CFR 51.308(c)(4). Additionally, while the NO X emission limitation may have represented BART when the emission limits in the RACT Order were negotiated, recent technology advancements have been made. EPA cannot now say that the emission limitations in the SWAPCA RACT Order for NO X represent BART. However EPA is approving the emission limits for NO X as a strengthening of the SIP for visibility purposes.

The proposed 1999 SIP revision also included revised BART rules (WAC 173-400-151) and New Source Review (NSR) (WAC 173-400-110, 112, 113, & 141). Subsequent to the submittal in 1999, the State has verbally indicated that new rules are being developed and the rules in this submittal will soon be obsolete. Therefore EPA is taking no action on these rules.

EPA solicited comments on the proposed action in the October 23, 2002, Federal Register document (67 FR 65077). EPA received no comments. Therefore, there is no response to comments.

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 . 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 August 11, 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).)

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

•  Crop production (NAICS 111)

• Animal production (NAICS 112)

• Food manufacturing (NAICS 311)

• Pesticide manufacturing (NAICS 32532)

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. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in Unit IIA. 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-2003-0159. 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.

In the Federal Register of February 12, 2003 (68 FR 7097) (FRL-7288-7), EPA issued a proposed rule to amend the exemption expression for methoprene to indicate that methoprene is exempt from tolerances when used on food commodities as an insect larvicide, to revoke all the tolerances for residues of methoprene because they are no longer needed to protect the public, and to revoke the exemptions for watermelon mosaic virus-2 coat protein and zucchini yellow mosaic virus coat protein and specific portions of the viral genetic material when used as plant-incorporated protectants in squash, because these exemptions are covered in later sections of 40 CFR part 180. Also, the February 12, 2003 proposal provided a 60-day comment period which invited public comment for consideration and for support of tolerance retention under FFDCA standards. No comments were received.

On August 1, 2002, EPA concluded that there is a reasonable certainty that no harm will result to the general population, infants, and children from aggregate exposure to residues of methoprene based on its review and evaluation of available information and conservative assumptions that assumed the existence of a broad-based tolerance exemption; i.e., that methoprene can be used on all crop commodities. In addition, EPA determined that all methoprene tolerances in 40 CFR 180.359 and its exemption in § 180.1033 were considered to be reassessed. For reassessment counting purposes, the tolerance for the cereal grain milled fractions was counted as two to reflect the original tolerances found previously in 40 CFR 185.4150 and 186.4150. Methoprene is being granted a tolerance exemption for use as an insect larvicide on all food commodities based on the Agency's safety finding which supports tolerance exemption. The tolerances revoked by this final rule are no longer necessary for the continued use of methoprene as a pesticide. A copy of EPA's August 1, 2002 memo is available in e-docket OPP-2002-0274.

EPA is aware that revocation of some of the methoprene tolerances leads to or continues a lack of harmonization with some of the existing methoprene CODEX maximum residue limits (MRLs). For egg, the EPA tolerance of 0.1 ppm is being revoked while the CODEX MRL remains at 0.05 milligrams/kilogram (mg/kg). For mushroom, EPA's tolerance of 1.0 ppm is being revoked while the CODEX MRL remains at 0.2 mg/kg. For peanut, EPA's tolerance of 2.0 ppm is being revoked while the CODEX MRL remains at 2 mg/kg. For residues of methoprene in other food commodities, there was either a tolerance or there is a CODEX MRL, but not both; therefore, a lack of harmonization remains for residues in these other food commodities.

EPA is revoking the methoprene tolerances in all food commodities because a thorough risk analysis has shown that these tolerances are not necessary to protect human health or the environment. Risk assessments were performed for oral exposure for acute, short-term, intermediate-term, and chronic exposures. No evidence of risk to adults, infants, or children were found, and the EPA review stated “There are no concerns for chronic dietary exposure.” Similarly, the review states “There are no concerns for any oral, dermal, or inhalation intermediate-term exosures to methoprene.” The review concludes, “Based on its review and evaluation of the available information, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children, from aggregate exposure to residues of methoprene.” In addition, EPA's risk assessment was based on conservative assumptions that assumed the existence of the tolerance exemption.

Therefore, EPA is amending 40 CFR 180.1033 to exempt methoprene from the requirement of a tolerance by revising the commodities from “raw agricultural” to “food” and the use of control from “mosquito” to “insect” larvae. Because they are no longer needed, EPA is revoking all 35 tolerances for methoprene in 40 CFR 180.359, including: barley; buckwheat; cattle, fat; cattle, meat; cattle, meat byproducts; cereal grain milled fractions (except flour and rice hulls); corn (except popcorn and sweetcorn); egg; goat, fat; goat, meat; goat, meat byproducts; hog, fat; hog, meat; hog, meat byproducts; horse, fat; horse, meat; horse, meat byproducts; milk; millet; mushroom; oat; peanut; poultry, fat; poultry, meat; poultry, meat byproducts; rice; rice, hulls; rye; sheep, fat; sheep, meat; sheep, meat byproducts; sorghum (milo); and wheat in § 180.359(a)(1), and feed supplement tolerances for beef cattle and dairy cattle in § 180.359(a)(2).

On July 9, 2002, EPA concluded that exemptions in 40 CFR 180.1132 watermelon mosaic virus-2 coat protein and zucchini yellow mosaic virus coat protein, and the genetic material necessary for the production of these proteins in or on summer squash were superseded by the exemption in 40 CFR 180.1184 in or on all food commodities. In addition, the Agency determined that these two exemptions were considered to be reassessed. Therefore, EPA is revoking the exemptions in 40 CFR 180.1132 because they are no longer needed. This final rule does not change availability or use of the pesticides mentioned. A copy of the July 9, 2002 memo is in the docket for this action.

It is EPA's general practice to propose revocation of tolerances for residues of pesticide active ingredients on crop uses if a numerical tolerance is being replaced by a tolerance exemption for those uses, or if the tolerance statement is redundant or has been superceded. EPA also proposes revocation of tolerances for which FIFRA registrations no longer exist. EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Nonetheless, EPA will establish and maintain tolerances even when corresponding domestic uses are canceled if the tolerances, which EPA refers to as “import tolerances,” are necessary to allow importation into the United States of food containing such pesticide residues. However, where there are no imported commodities that require these import tolerances, the Agency believes it is appropriate to revoke tolerances for unregistered pesticides in order to prevent potential misuse.

The actions in this final rule are effective on the date of its publication in the Federal Register . The only effect of the final rule will be to remove redundancies and inconsistencies in 40 CFR part 180. No person or entity is expected to be adversely affected. This final rule does not change the regulatory status of any registered products.

By law, EPA is required by August 2006 to reassess the tolerances in existence on August 2, 1996. As of May 7, 2003, EPA has reassessed over 6,500 tolerances. In this final rule, EPA is revoking 35 tolerances and 2 exemptions. These tolerances and exemptions were previously reassessed and counted as described in Unit II.A.

EPA is working to ensure that the U.S. tolerance reassessment program under FQPA does not disrupt international trade. EPA considers Codex MRLs in setting U.S. tolerances and in reassessing them. MRLs are established by the Codex Committee on Pesticide Residues, a committee within the Codex Alimentarius Commission, an international organization formed to promote the coordination of international food standards. When possible, EPA seeks to harmonize U.S. tolerances with Codex MRLs. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain in a Federal Register document the reasons for departing from the Codex level. EPA's effort to harmonize with Codex MRLs is summarized in the tolerance reassessment section of individual REDs. The U.S. EPA has developed guidance concerning submissions for import tolerance support (65 FR 35069, June 1, 2000) (FRL-6559-3). This guidance will be made available to interested persons. Electronic copies are available on the Internet at http://www.epa.gov/ . On the Home Page select “Laws and Regulations,” then select “Regulations and Proposed Rules” and then look up the entry for this document under “ Federal Register —Environmental Documents.” You can also go directly to the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ .

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 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-2003-0159 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 August 11, 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 IV.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-2003-0159, 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 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 revokes tolerances established under section 408(d) of the FFDCA. The Office of Management and Budget (OMB) has exempted this type of action (i.e., a tolerance revocation for which extraordinary circumstances do not exist) 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 as required by 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 other 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). Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency previously assessed whether revocations of tolerances might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. This analysis was published on December 17, 1997 (62 FR 66020), and was provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticides listed in this rule, I certify that this action will not have a significant economic impact on a substantial number of small entities. Specifically, the pesticides mentioned in this rule have tolerance exemptions and will therefore remain available after this rule becomes effective. 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).

A. Why Are Revisions to State Programs Necessary?

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

Utah initially received Final Authorization on October 10, 1984, effective October 24, 1984 (49 FR 39683) to implement its base hazardous waste management program. Utah received authorization for revisions to its program on February 21, 1989 (54 FR 7417), effective March 7, 1989; May 23, 1991 (56 FR 23648) and August 6, 1991 (56 FR 37291), both effective July 22, 1991; May 15, 1992 (57 FR 20770), effective July 14, 1992; February 12, 1993 (58 FR 8232) and May 5, 1993 (58 FR 26689), both effective April 13, 1993; October 14, 1994 (59 FR 52084), effective December 13, 1994; May 20, 1997 (62 FR 27501), effective July 21, 1997; January 13, 1999 (64 FR 02144), effective March 15, 1999; October 16, 2000 (65 FR 61109), effective January 16, 2001, and May 7, 2002 (67 FR 30599), effective July 7, 2002.

On February 12, 2003, Utah submitted a final complete program revision application, seeking authorization of additional changes to its program in accordance with 40 CFR 271.21. On April 10, 2003, EPA published both an Immediate Final Rule (68 FR 17556) granting Utah Final authorization for these revisions to its Federally-authorized hazardous waste program, along with a companion Proposed Rule announcing EPA's proposal to grant such a Final authorization (68 FR 17577). EPA announced in both notices that the Immediate Final Rule and the Proposed Rule were subject to a thirty-day public comment period. The public comment period ended on May 12, 2003. EPA did receive identical written comments from two commenters during the public comment period. Today's action responds to the comments EPA received and publishes EPA's Final determination granting Utah Final authorization of its program revisions. Further background on EPA's Immediate Final Rule and its tentative determination to grant authorization to Utah for its program revisions appears in the aforementioned Federal Register notices. The issues raised by the commenters are summarized and responded to in Item B.

Both commenters challenged Region VIII's process for authorizing revisions to Utah's program in not providing for a public hearing, which, they state, is required by 40 CFR 271.20. EPA disagrees. The regulations relied upon by the commenters apply to initial program authorization, and not program revision authorizations. Rather, we have proceeded in accordance with 40 CFR 271.21, which does not require public hearings. On March 4, 1986, at 51 FR 07540, EPA promulgated amendments to 40 CFR 271.21 that eliminated public hearing requirements for program revisions. In this March 4, 1986 Federal Register , EPA stated: “As discussed in the proposal, the new procedures do not require public hearings to be held in conjunction with EPA's authorization decisions. Since there is no legal requirement to provide for hearings on revision decisions and little public interest has been shown to date in attending hearings on initial authorization of State programs, we think the opportunity to provide written comments is adequate. Only one comment was received on the elimination of routine public hearings, and that comment favored the rule change. However, while the regulatory requirement is deleted, a Regional Administrator, in his discretion, could decide to hold a hearing.” (51 FR 07541).

Consequently, EPA Region VIII believes it adhered to the governing regulations regarding opportunities for public hearings during the EPA approval process for State program revisions. We also believe, that due to the nature and limited number of comments received, the opportunity to provide for written comments, in lieu of a public hearing, was an adequate process to obtain public comment.

Both commenters shared a concern about the “use constituting disposal” provisions of 40 CFR part 266, subpart C. They appear to have concerns about the provisions of Utah regulations (which incorporate the Federal rules by reference) that allow, under certain conditions, “hazardous wastes,” like lime-based slag, to be used as a “fertilizer.” They argue that Utah's statute (like RCRA) does not allow the land application of hazardous wastes (beneficial or not) unless it occurs at a permitted disposal facility. For the reasons set forth below, EPA disagrees. EPA's regulations accommodate the proper reuse, recycling, and reclamation of as many resources destined for disposal as possible, while regulating hazardous wastes and hazardous waste residuals that must be discarded. EPA's regulations at 40 CFR part 266, subpart C, place controls on the management of hazardous wastes before such wastes are made into a fertilizer. Producing fertilizer from an otherwise hazardous waste is a type of recycling which, in EPA's regulations, is referred to as “use constituting disposal.” Rather than prohibiting the use of waste-derived fertilizers, EPA promulgated regulations to require that hazardous wastes that are going to be made into fertilizers be managed in accordance with all applicable hazardous waste management requirements until the wastes are actually made into a fertilizer. With regard to the “use constituting disposal” provisions of 40 CFR part 266, subpart C, in the context of fertilizer applications, these provisions in Utah's program were authorized by EPA as part of Utah's first program revision, which took effect on March 7, 1989—over fourteen years ago. Utah's rules currently incorporate the Federal rules by reference making them identical. Utah's current revision application, for which we recently published a tentative approval, with an opportunity for public comment, does not include any regulatory revisions to 40 CFR part 266, subpart C. Since the comment we has received on “use constituting disposal” is not part of Utah's most recent program revision application, we believe the public comments on “use constituting disposal” are not within the scope of this Agency action.

Both commenters raised concerns that the “Express RCRA Authorization” process circumvents the requirements of 40 CFR 271.7. They feel that the use of this process fails to identify deficiencies in the State program and does not allow the State to have regulations that are more protective than the Federal minimum requirements.

The “Express RCRA Authorization” initiative should not be confused with the “Abbreviated Authorization Revisions” discussed at 40 CFR 271.21(h). The Abbreviated Authorization Revision process is an optional process, may only be used under limited circumstances, and the prerequisite provisions must be listed in 40 CFR 271.21, Table 1. Any change to this process must be publicly noticed and opportunity for public comment provided.

The “Express RCRA Authorization” initiative is only a restructuring of the components submitted by the State in an authorization revision application. It was designed to make the application process more efficient and less resource intensive for the States and EPA. Although the submittal format is significantly different from what was previously used, all the components required by 40 CFR 271.21 (and thus, 40 CFR 271.7) are still provided in the revision application. Since there was no change in the required components, a public notice and public comment period was not required.

An Express Authorization application now requires a simplified State Attorney General's statement which certifies the State's statutory authority along with a table identifying the applicable State statutes. In the past, the State Attorney General had to submit a complex statutory and regulatory statement that could obscure the State's statutory authority and often duplicated the rule checklists (which are still provided and used as a tool to identify the State's equivalent rules). This new statement actually makes the State's statutory authority more apparent, rather than less, while maintaining all the requirements of 40 CFR 271.7. In addition to clarifying the State's statutory authority, the new format also makes it more apparent to the Region where the State's rules are different from the Federal rules, especially those that are more stringent or broader-in-scope, thereby reducing the time to review and approve a revision application. The Express Authorization approach does not restrict, in any way, the State's ability to adopt rules that are either more protective of human health and the environment or broader in scope than the Federal program. Nor does it limit the requirement for EPA to make a determination that the State's rules are equivalent and no less stringent than the Federal rules.

Both commenters point out that Utah's Solid and Hazardous Waste Act at 19-6-102(17)(b)(iii) exempts certain wastes, specifically: fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily for the combustion of coal or other fossil fuels, from the definition of solid waste that are not exempt from the Federal definition of solid waste at 40 CFR 261.4(b)(4).

An authorization review generally compares Federal regulations to State regulations. We would compare a State statute to a Federal regulation only if the State does not adopt a regulation and uses the State statute as its equivalent provision. In addition, the review of a State program revision focuses on the changes identified by the EPA-generated checklist (a tool used by both the State and EPA to identify all required changes) and any other changes identified by the State. A review of a State's entire program is conducted periodically using a different review process.

Our review has determined that Utah has adopted equivalent rules to 40 CFR 261.4(b)(4) at R315-2-4(b)(4) where it lists “fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily for the combustion of coal or other fossil fuels, * * *” as solid wastes which are not hazardous wastes. Since neither the federal nor state rules consider these wastes as hazardous wastes, Utah's exclusion in its Statutes of these wastes from the definition of solid waste is not within the scope of this action.

Based on EPA's response to public comments, the Agency has determined that approval of Utah's RCRA program revisions should proceed. EPA has made a final determination that Utah's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Utah Final authorization to operate its hazardous waste program with the changes described in its application for program revisions. Utah has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program described in its application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA adopts under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement any such HSWA requirements and prohibitions in Utah, including issuing HSWA permits, until the State is granted authorization to do so. For further background on the scope and effect of today's action to approve Utah's RCRA program revisions, please refer to the preambles of EPA's April 10, 2003 Proposed and Immediate Final Rules at 68 FR 17577 and 68 FR 17556, respectively.

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This 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), because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This 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 document 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 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). This action will be effective June 11, 2003.

EPA published a direct final rule (68 FR 12265) and parallel proposed rule (68 FR 12276) on March 13, 2003, to make minor amendments to the final rule establishing effluent guidelines and standards for the Pharmaceutical Manufacturing Point Source Category (40 CFR part 439) published on September 21, 1998. In this direct final rule, EPA clarified the date on which a discharger subject to the New Source Performance Standards (NSPS) and the Pretreatment Standards for New Sources (PSNS) would be subject to effluent limitations and pretreatment standards established in the 1998 regulation. In addition, EPA re-established a minimum concentration for the monthly average BOD 5 limitation that EPA inadvertently omitted from the Best Practicable Control Technology (BPT) requirements in two subcategories of the 1998 regulation and corrected an error in EPA's pass-through analysis from the 1998 rule by deleting methyl Cellosolve (2-methoxyethanol) from the pretreatment standards in two subcategories and from Appendix A, Table 2, “Surrogate Parameters for Indirect Dischargers.” Finally, the Agency made other non-substantive editorial and format changes such as removing redundancies, and adding definitions.

The partial withdrawal of the direct final rule involves withdrawing language in (a) and (b) from §§ 439.17, 439.27, 439.37, and 439.47 of the direct final rule regarding the compliance schedule for new source dischargers who commenced operations after November 21, 1988 and prior to November 20, 1998. Today's action also revises the introductory text and paragraph (a) in §§ 439.17 and 439.37 to be consistent with the remaining amendments of the direct final rule. EPA has received comment concerning the applicability of the 10-year protection period provided in section 306(d) of the Clean Water Act for new source facilities. EPA will address those comments in a subsequent final action based on the parallel proposal. The provisions for which we did not receive adverse comment will become effective on June 11, 2003, as provided in the preamble to the direct final rule.

You may be potentially affected by this action if you manufacture (defined by statute to include import) any of the chemical substances that are listed in § 712.30(d) of the regulatory text portion of this document. Entities potentially affected by this action may include, but are not limited to:

• Chemical manufacturers (including importers), (NAICS 325, 32411), e.g., persons who manufacture (defined by statute to include import) one or more of the subject chemical substances.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. 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 technical person listed under FOR FURTHER INFORMATION CONTACT .

1. Docket . EPA has established an official public docket for this action under docket identification (ID) number OPPT-2002-0061. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the EPA Docket Center, Rm. B102-Reading Room, EPA West, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The EPA Docket Center Reading Room telephone number is (202) 566-1744 and the telephone number for the OPPT Docket, which is located in EPA Docket Center, is (202) 566-0280.

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 712 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr712_00.html , a beta site currently under development.

Copies of the PAIR Form are also available electronically from the Chemical Testing and Information Branch Home Page on the Internet at http://www.epa.gov/opptintr/chemtest/pairform.pdf .

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.

Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. 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. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.

1. Electronically . If you submit an electronic comment as prescribed in this unit, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. EPA Dockets . Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket , and follow the online instructions for submitting comments. Once in the system, select “search,” and then key in docket ID number OPPT-2002-0061. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

ii. E-mail . Comments may be sent by e-mail to oppt.ncic@epa.gov , Attention: Docket ID Number OPPT-2002-0061. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

iii. Disk or CD ROM . You may submit comments on a disk or CD ROM that you mail to the mailing address identified in Unit I.C.2. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By mail . Send your comments to: Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

3. By hand delivery or courier . Deliver your comments to: OPPT Document Control Office (DCO) in EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID Number OPPT-2002-0061. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is (202) 564-8930.

Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide copies of any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.

5. Provide specific examples to illustrate your concerns.

6. Offer alternative ways to improve this final rule or collection activity.

7. Make sure to submit your comments by the deadline in this document.

8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation.

EPA is issuing a final TSCA section 8(a) PAIR rule which will require manufacturers (including importers) of 47 CAS-numbered chemicals added to the ITC's TSCA section 4(e) Priority Testing List to submit production and exposure reports. The regulatory text of this rule lists the 47 chemicals that are being added to the PAIR rule.

EPA promulgated the PAIR rule in 40 CFR part 712 under TSCA section 8(a) (15 U.S.C. 2607(a)). This model TSCA section 8(a) rule establishes standard reporting requirements for manufacturers (including importers) of the chemicals listed in the rule at § 712.30. These entities are required to submit a one-time report on general production/importation volume, end use, and exposure-related information using the PAIR Form entitled Manufacturer's Report-Preliminary Assessment Information (EPA Form No. 7710-35). EPA uses this model section 8(a) rule to quickly gather current information on chemicals.

This model rule provides for the automatic addition of TSCA section 4(e) Priority Testing List chemicals. Whenever EPA announces the receipt of an ITC report, EPA may, at the same time without providing notice and opportunity for public comment, amend the model information-gathering rule by adding the recommended (or designated) chemicals. The amendment adding these chemicals to the PAIR rule is effective July 11, 2003.

In this document, EPA is adding 47 chemicals to the TSCA section 8(a) PAIR rule. This document addresses the request of the ITC in its 48 th Report (Ref. 1), as modified in its 50 th ITC Report (Ref. 2) and 51 st ITC Report (Ref. 3), by adding benzenamine, 3-chloro-2,6-dinitro-N,N-dipropyl-4-(trifluoromethyl)- (CAS No. 29091-20-1) to the PAIR rule.This document also addresses the request of the 50 th ITC Report by adding stannane, dimethylbis[(1-oxoneodecyl)oxy]- (CAS No. 68928-76-7); benzene, 1,3,5-tribromo-2-(2-propenyloxy)- (CAS No. 3278-89-5); and 1-triazene, 1,3-diphenyl- (CAS No.136-35-6) to the PAIR rule. Finally, this document addresses the request of the 51 st ITC Report by adding 43 vanadium compounds which are listed in the amendment to § 712.30(e) of this document.

All persons who manufactured (defined by statute to include import) the chemicals identified in the regulatory text of this document during their latest complete corporate fiscal year must submit a PAIR Form (EPA Form No. 7710-35) for each site at which they manufactured or imported a named substance. A separate form must be completed for each substance and submitted to the Agency as specified in § 712.28 no later than September 9, 2003. Persons who have previously and voluntarily submitted a PAIR Form to the ITC or EPA may be able to submit a copy of the original report to EPA or to notify EPA by letter of their desire to have this voluntary submission accepted in lieu of a current data submission. See § 712.30(a)(3).

Details of the PAIR reporting requirements, including the basis for exemptions, are provided in 40 CFR part 712. Copies of the PAIR Form are available from the Environmental Assistance Division at the address listed under FOR FURTHER INFORMATION CONTACT . Copies of the PAIR Form are also available electronically from the Chemical Testing and Information Branch Home Page on the Internet at http://www.epa.gov/opptintr/chemtest/pairform.pdf .

Any person who believes that section 8(a) reporting required by this rule is not warranted, should promptly submit to EPA on or before June 25, 2003, detailed reasons for that belief. EPA, in its discretion, may remove the substance from this rule (see § 712.30(c)). When withdrawing a chemical from the PAIR rule, EPA will publish a final rule amending the PAIR rule in the Federal Register .

The following documents constitute the public record for this rule under docket ID number OPPT-2002-0061.

1. ITC. 2001. Forty-Eighth Report of the ITC. Federal Register (66 FR 51276, October 5, 2001) (FRL-6786-7). Available online at http://www.epa.gov/fedrgstr/ .

2. ITC. 2002. Fiftieth Report of the ITC. Federal Register (67 FR 49530, July 30, 2002) (FRL-7183-7). Available online at http://www.epa.gov/fedrgstr/ .

3. ITC. 2003. Fifty-first Report of the ITC. Federal Register (68 FR 8976, February 26,2003) (FRL-7183-7). Available online at http://www.epa.gov/fedrgstr/ .

4. EPA. 2003. Economic Analysis for the Addition of 47 Chemical Abstract Service (CAS)-numbered Chemicals Requested to be added to EPA's Preliminary Assessment Information Reporting (PAIR) Rule in the 48 th , 50 th , and 51 st Reports of the TSCA Interagency Testing Committee. April 18, 2003.

EPA is publishing this action as a final rule without prior notice and an opportunity to comment because the Agency believes that providing notice and an opportunity to comment is unnecessary. As discussed in Unit III., whenever EPA announces the receipt of an ITC report, EPA may, at the same time and without providing notice and opportunity for public comment, amend the model information-gathering rule by adding the recommended (or designated) chemicals. EPA finds, therefore, that there is “good cause” under section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 553 (b)(3)(B)) to make these amendments without prior notice and comment.

The economic analysis for the addition of the 47 chemicals to the TSCA section 8(a) PAIR rule is entitled, “Economic Analysis for the Addition of 47 Chemical Abstract Service (CAS)-numbered Chemicals Requested to be added to EPA's Preliminary Assessment Information Reporting (PAIR) Rule in the 48 th , 50 th , and 51 st Reports of the TSCA Interagency Testing Committee” (Ref. 4). Seven of the 47 chemicals were located in EPA's 1998 Chemical Update System (CUS) utilizing the ITC-supplied CAS numbers, yielding 6 companies producing these chemicals at 7 sites. Because the threshold for reporting to CUS under the Inventory Update Rule is 10,000 lbs., and the threshold for PAIR reporting is 500 kg (1,100 lbs.), and because there is no requirement that inorganic chemicals be reported to CUS (the majority of the vanadium compounds are inorganic), EPA assumed that one manufacturer exists per chemical to account for the possibility that there may be manufacturers producing PAIR-reportable amounts that weren't captured by CUS. But EPA has no way of ascertaining this, a fact which highlights the need for PAIR reporting on these chemicals. Given the assumptions in this unit, the costs and burden associated with this rule are estimated in the Economic Analysis (Ref. 4) to be the following:

47 reports estimated at [cost] per report = $1465.88

Total Cost = $61537.12

Mean cost per site/firm = $61537.12/47 sites = $1465.88

Rule familiarization: 7 hours/site x 47 sites =329 hours

Reporting:1001.3 hours

Total burden hours = 1330.3 hours

Average burden per site/firm = 1330.3 hours/37 sites = 28.3 hours/site

It is estimated that the annual cost to the Federal Government will be $10,226.11 (47 reports x $217.58), plus 0.0176 Full Time Equivalent Employees (FTEs). At an estimated $91,873.60 per FTE, the total of 0.1186 FTEs will cost EPA $10,898.95 in salaries, bringing the total costs to the Federal Government to $21,125.06 (i.e., $10,226.11 + $10,898.95) (Ref. 4).

The Office of Management and Budget (OMB) has exempted actions under TSCA section 8(a) related to the PAIR rule from the requirements of Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993).

Pursuant to the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq .), an Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information that is subject to approval under the PRA unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations, after appearing in the preamble of the final rule, are listed in 40 CFR part 9, and included on the related collection instrument. The information collection activities related to this action have already been approved by OMB, under OMB control number 2070-0054 (EPA ICR No. 586) for PAIR reporting. This action does not impose any burdens requiring additional OMB approval. The public reporting burden for this collection of information is estimated to be 1330.3 hours (Ref. 4). Of that total, an estimated 329 hours are spent in an initial review of the rule, and the remaining 1001.3 hours are associated with actual reporting activities (Ref. 4). Because this rule does not contain any new information collection activities, additional review and approval of these activities by OMB under the PRA is not necessary.

Under the Regulatory Flexibility Act (RFA) and the Small Business Enforcement Fairness Act (SBREFA), EPA is required to consider whether a regulatory action will have a significant adverse impact on small entities. Both the RFA and SBREFA require EPA to determine whether a rulemaking may result in “significant economic impact on requirements of the rule on a substantial number of small entities,” and if so, to tailor the requirements of the rule to mitigate such impacts, while still maintaining a high level of environmental protection.

The small business size standards promulgated by the Small Business Administration (SBA) (61 FR 3280, 3289-3291, January 31, 1996) for chemical manufacturers are based solely on the number of employees, with a base threshold of 1,000 employees for the ultimate corporate parent, under which all businesses are considered small. Of the 47 businesses assumed to be affected by this rule, none meet this definition of small business. Thus, EPA has determined that this rule will not impose a significant impact on a substantial number of small entities. Information relating to this EPA determination is included in the docket for this rule (OPPT-2002-0061). Any comments regarding the economic impacts that this action imposes on small entities should be submitted to the Agency at any time after June 11, 2003 using the methods discussed in Unit I.C.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. In addition, EPA has determined that this rule will not significantly or uniquely affect small governments. Accordingly, the rule is not subject to the requirements of UMRA sections 202, 203, 204, or 205.

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).

Based on EPA's experience with past TSCA section 8(a) rulemakings, State, local, and tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or tribal government will be impacted by this rulemaking. As a result, this action is not subject to the requirement for prior consultation with Indian tribal governments as specified in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000).

Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (52 FR 19855, April 23, 1997), does not apply to this rule, because it is not “economically significant” as defined under Executive Order 12866, and does not concern an environmental health or safety risk that may have a disproportionate effect on children. This rule requires the reporting of production, importation, use, and exposure-related information to EPA by manufacturers (including importers) of certain chemicals requested by the ITC to be added to the PAIR rule in its 48 th ITC Report (Ref. 1), in its 50 th ITC Report (Ref. 2), and its 51 st ITC Report (Ref. 3).

This rule is not subject to Executive Order 13211, entitled Actions that Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use.

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). Section 12(d) of NTTAA directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. EPA invites public comment on the Agency's determination that this regulatory action does not require the consideration of voluntary consensus standards.

This action does not involve special considerations of environmental justice-related issues pursuant to Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

EPA has complied with Executive Order 12630, entitled Governmental Actions and Interference with Constitutionally Protected Property Rights (53 FR 8859, March 15, 1988), by examining the takings implications of this 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.

In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988, entitled Civil Justice Reform (61 FR 4729, February 7, 1996).

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).

On March 19, 2001, NHTSA provided Mr. Todd Mitchell of ITW Meyercord with a letter of legal interpretation stating that three of four warning labels specified in FMVSS No. 208 were required to be outlined with black horizontal and vertical lines. This interpretation was based on the figures in the standard for those labels. The figures depict labels with an outline and contain an instruction specifying the color of the outline (“Label Outline, Vertical and Horizontal Line Black”). Based on the depiction of an outline and on the specification of a color for the outline, the agency concluded that an outline is required. NHTSA determined that the fourth label is not required to have an outline because the instructions in the figure for that label do not include a color specification explicitly referring to an “outline.”  1

On May 2, 2001, the Alliance of Automobile Manufacturers submitted a letter to NHTSA asking the agency to reconsider the interpretation. It argued that the regulatory text of the standard neither requires conformity with the format of the label shown in the figures nor requires that the label have an outline.

We agree with the Alliance that the standard does not require an outline. Instead of simply reversing the legal interpretation, we believe it is more appropriate to resolve the matter by issuing a correcting amendment to the standard.

On August 6, 1996, NHTSA published in the Federal Register a notice of proposed rulemaking (NPRM) (61 FR 40784, Docket No. NHTSA-97-2705) proposing the adoption of new, attention-getting air bag warning labels. The regulatory text in the NPRM simply stated that the labels “shall conform in size, content, color, and format” to the labels shown in the figures. No other requirements regarding label size, content, color or format were included in the regulatory text. Figures 6a through 8 depicted the messages and, if any, pictogram for each label. The figures also contained instructions specifying color and size of each label. 2

In their comments on the NPRM, vehicle manufacturers requested that only the content of the labels be required to conform to the figures.

In the final rule (61 FR 60206, NHTSA Docket No. NHTSA-97-2716, November 27, 1996), NHTSA agreed there was no need to specify either the arrangement of the information on the labels or the shape of the labels, both of which it characterized as formatting. It also determined that it did not need to specify the size of the label or typeface, although it did specify minimum areas for the message text and pictogram.

Accordingly, the agency replaced the proposed requirement in the regulatory text that labels “shall conform in size, content, color, and format” with the figures with a narrower requirement that labels “shall conform in content” with the figures. At the same time, it expanded the regulatory text by adding requirements that restated most, but not all, of the color instructions in the figures. The agency also deleted the instructions about minimum size of the labels.

There are two instructions in Figures 6a and 6b and one instruction in Figure 7 that are not restated in any requirements in the regulatory text. One is a format/color instruction about a black outline. The other is a color instruction about using red for bullets in the message area. Figure 7 contains only the format/color instruction about the black outline.

The presence of the instructions creates an ambiguity as to whether the black outline instruction and the red bullet instruction are required components of the standard. The labels proposed in the NPRM and those adopted in the final rule are different. Accordingly, it is not possible to argue that the instruction in the figures that the labels be outlined with horizontal and vertical black lines was an inadvertent remnant of the proposed labels. However, there is nothing in the preamble to the final rule to suggest that the agency intended to require these format/color instructions. Rather, as the new labels went through various iterations before the agency decided on a final version, the reference was inadvertently left in the figures, even though the agency ultimately decided not to specify these format and color instructions in the regulatory text.

We believe that these instructions in the figures are more akin to format than to content and were not specifically included in the regulatory text because the agency did not wish to require them. This position is bolstered by the language of the regulatory text in S4.5.1(b)(1) which states that the labels shall conform in content with the referenced figures and meet the requirements listed in S4.5.1(b)(1)(i) through S4.5.1(b)(1)(iv) and similar language in S4.5.1(b)(2) and in S4.5.1(e)(1) and S4.5.1(e)(2). These requirements include the limitations on color provided in the figure instructions, but do not include the instruction regarding an outline or bullets.

Accordingly, we are amending Figures 6a, 6b and 7 of FMVSS No. 208 to remove the reference to a black outline. We are also amending Figures 6a and 6b to delete the reference to red bullets. We are likewise amending Figures 8 and 9. Figure 8 was based, in large part, on Figures 6a and 6b. Figure 9 was based on Figure 7. When the advance air bag final rule incorporating Figures 8 and 9 was published (65 FR 30680, Docket No. NHTSA-00-7013, May 12, 2000), the agency had already indicated in the earlier rollover label rulemaking that it did not believe the outline in Figures 6a, 6b and 7 were required. The instruction should not have been included in Figures 8 and 9, since we made no findings in that rulemaking that our previous position was incorrect.