This rule is issued in conformance with Executive Order 12866. It has been determined significant for purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

This rule has been reviewed in accordance with Executive Order 12988, Civil Justice Reform. This rule would have preemptive effect with respect to any State or local laws, regulations or policies which conflict with such provisions or which otherwise impede their full implementation; does not have retroactive effect; and does not require administrative proceedings before suit may be filed.

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

The Regulatory Flexibility Act is not applicable to this rule because FAS is not required by any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule. In any event, this rule deals primarily with requirements imposed upon foreign governments and non-profit entities distributing humanitarian grant food supplies overseas. Therefore, the rule does not have a significant impact upon a substantial number of small business entities.

The information collection requirements imposed by this final rule have been previously submitted to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). OMB has assigned control number 0551-0039 for this information collection. This regulation does not change any of the information collection requirements from the proposed rule.

FAS is committed to compliance with the Government Paperwork Elimination Act, which requires Government agencies, in general, to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

Section 3107 of the Farm Security and Rural Investment Act of 2002, Pub. L. 107-171, authorized the President to establish a program to be known as the McGovern-Dole International Food for Education and Child Nutrition Program. This program would provide agricultural commodities and financial and technical assistance to carry out preschool and school food for education programs and maternal, infant, and child nutrition programs, in foreign countries. By Presidential Memorandum, March 11, 2003, the President delegated the responsibility for implementing this program to the Secretary of Agriculture and it has been further delegated, within the Department of Agriculture, to the Administrator, Foreign Agricultural Service. Congress directed that $100 million of Commodity Credit Corporation (CCC) funds be used for this program in fiscal year 2003. Thereafter, the program is subject to annual appropriations.

The McGovern-Dole International Food for Education and Child Nutrition Program is implemented under the authorities of the Foreign Agricultural Service and, therefore, this new program will be subject to regulations that are separate from other foreign assistance commodity grant programs operated under the authority of the Commodity Credit Corporation (CCC), i.e. , section 416(b) and Food for Progress. However, because there are many similarities between these programs and it would be advisable to retain the same procedures and rules to the extent practical, this rule will adopt, and repeat in 7 CFR part 1599, most of the regulations currently in 7 CFR part 1499 that are applicable to the section 416(b) and Food for Progress programs. Sections 1599.7 and 1599.8, which cover procedures that apply to procuring ocean transportation, and arranging for entry and handling of commodities in the foreign country, are nearly identical to 7 CFR part 1499.

On March 26, 2003, the Foreign Agricultural Service (FAS) published a proposed rule (68 FR 14546) to govern the foreign donation of resources, including agricultural commodities, to implement the McGovern-Dole International Food for Education and Child Nutrition Program. Comments on the proposed rule were received from one private voluntary organization, one nutritionally focused organization, and the Maritime Administration (MARAD). Their comments are discussed below, except for those dealing with issues outside of the scope of the proposed rule, or those making editorial suggestions.

Comment: A PVO asked if there is any assurance that food types will be consistent from one year to the next. The PVO expressed concern that it is very difficult to manage a program when it is unsure—from one year to the next—whether the same commodities will be available. This is important for both monetization and distribution, as any organization selects commodities based on marketability and acceptability to target beneficiaries.

Response: USDA may procure commodities of U.S. origin for use in the McGovern-Dole International Food for Education and Child Nutrition Program. The program is not subject to declarations of surplus or lack of availability. The program is not subject to the surplus determinations required for section 416(b) programs nor the limitations resulting from determinations of short supply, which limit the commodities available under Pub. L. 480 Title I and Title II. FAS is willing to sign multiple year agreements with the funding of each year subject to the annual appropriations process. So assuming that funds are available, if FAS commits to provide a specific commodity, a PVO can be assured of receiving that commodity.

Comment: A PVO requested that USDA determine in advance of programming decisions, the allocation of resources between school feeding and maternal-child health (MCH). The PVO expressed concern regarding the implications of opening up the program to an entirely new sector, given that the resources are already reduced in comparison to the pilot Global Food for Education Program, and all of the pilot projects were in education.

Response: No set division between the school feeding and MCH components will be established by USDA. USDA would give priority consideration to those proposals that integrate a MCH component within an educational environment. This could be done through several means, but not limited to: (1) Situations where the school can be utilized as a setting for normalcy to the family undergoing a crisis situation (conflicts in the country, natural disasters, etc.), and (2) areas where children entering school are not exhibiting sufficient growth and development to maintain age-to-grade graduation targets. USDA will also look favorably upon those proposals that link MCH programs funded through outside resources to the proposed school feeding program.

Comment: A PVO requested clarification on the provision of technical assistance to programs during project implementation, which is mentioned in the proposed rule. The PVO further requested that FAS indicate who will set the priorities in terms of what type of technical assistance is needed, and how can PVOs benefit from it.

Response: USDA considers technical assistance to cover any type of supplemental or specialized technical knowledge that the organization needs to establish and implement the program. An example of technical assistance in the establishment phase of the program would be providing expertise to organizations to develop a health curriculum to be used in the implementation phase of the program. Technical assistance could also include the cost of nutritionists to design appropriate meals, the cost of health specialists to design de-worming programs, and the cost of specialists who would design teacher training classes. The Farm Security and Rural Investment Act of 2002 (Farm Act of 2002) allows for the Food and Nutrition Service (FNS) to provide technical advice under the McGovern-Dole Program. FNS may, for example provide field expertise or work with the Cooperating Sponsor to evaluate the nutritional impact of the fortification of commodities under the McGovern-Dole Program.

Comment: A PVO questioned the need for the reporting requirements in § 1599.15(c)(3)(v) in the proposed rule “Disbursements from the special account, including date, amount and purpose of the disbursement”. The PVO states that including the date in the report implies that cooperating sponsors would need to give details on every single item purchased or activity performed out of these funds. If sales proceeds are used for program activities, disbursement might be on an almost-daily basis. This report might be very lengthy and time-consuming for both cooperating sponsor and USDA. The PVO requested that FAS remove this date requirement and allow the cooperating sponsor to categorize expenses.

Response: The requirement to include the date of disbursements made from the special funds account is necessary because it provides an accurate record of the expenditures made from the account for the specific purpose of monitoring and evaluating the financial transactions of the agreement. A broad categorization of expenses would not allow the adequate tracking of the progress of the agreement and disbursements made during the designated reporting period. The requirement to include dates of disbursement is consistent with regulations covering other USDA programs. Previous participants in these other programs have not reported any difficulties.

Comment: A nutritionally focused organization requested that FAS incorporate expenditures related to evaluation of the potential nutritional impact of the fortification of commodities, as well as their actual impact on targeted recipients in post-program implementation, into the overall plan for implementing the McGovern-Dole International Food for Education and Child Nutrition Program.

Response: USDA did not add requested language to the proposed rule. USDA believes that the costs discussed in the comment could be considered as technical assistance. The proposed rule makes clear that Cooperating Sponsors can request technical assistance.

Comment: MARAD requested that, since the amount of ocean freight differential (OFD) is jointly determined by USDA and MARAD, the definition in § 1599.l regarding OFD be revised to read: “OFD—the amount as jointly determined by FAS and the Maritime Administration, by which the cost of ocean transportation is higher than would otherwise be the case by reason of the requirement that the commodities be transported on U.S. flag vessels.”

Response: The OFD is solely computed by USDA, therefore, FAS will maintain the language as is. MARAD's involvement is limited to interagency reimbursements, which is outside the scope of this rule.

Comment: MARAD suggested that § 1599.6 is not clear and could appear to set up a conflict when (a) refers to domestic points and states FAS will choose the point of delivery based on lowest cost to FAS. However, the objective is lowest landed cost at ultimate foreign destination.

Response: The proposed regulation states FAS will choose the point of delivery basis lowest cost to FAS. This language is necessary to allow for the situation where FAS may not choose to finance any portion of the ocean freight, i.e. , lowest cost for commodities. At the same time, it is broad enough to include lowest landed cost, i.e. , lowest cost for both commodities and freight.

Comment: MARAD commented that § 1599.7 (b)(2) and (6) refer to Transportation News Ticker (TNT), which no longer exists, and suggested FAS establish a Web site to publish all tenders as the primary source, and utilize Reuters or Dow-Jones as a secondary source.

Response: The fact that the TNT no longer exists is reflected in the final rule. FAS has established a Web site that publicizes all freight tenders for the programs under FAS oversight as well as the notice of awards. FAS prefers that shipping agents use a commercially available news wire service. The FAS Web site is only done as a convenience and should not be the primary source of information because these are not government invitations for bids.

Comment: MARAD requested that in § 1599.7, FAS state that shipments must comply with all laws and international conventions to which USA is a signator, not just the Merchant Marine Act of 1936. For example, Pub. L. 105-383 prohibits the shipment of these cargoes on any vessel found to be “substandard” as defined in that law.

Response: The purpose of the regulation is only to inform food aid grantees of their affirmative obligation to comply with cargo preference requirements. Questions of vessel eligibility, e.g. Pub. L. 105-383, will be addressed in the vessel approval process. Additionally, a general reference to “all” laws and conventions would not be informative. It is understood that shipments must comply with all laws and international conventions.

Comment: MARAD commented that § 1599.7(b)(4) only requires public bid openings for shipments of bulk and non-liner packaged commodities, and questions why liner shipments are excluded. MARAD stated that there should be public bid openings for all shipments regardless of type of commodity or vessel.

Response: FAS does not preclude negotiations in contracting for liner shipments due to the complexity of the freight bids and the liner trade in general. Open tenders do not allow the flexibility needed for arranging liner shipments.

Comment: MARAD stated that in § 1599.7(b)(8) the Cooperating Sponsor is required to furnish to the Director, Operations Division, a copy of the signed laytime statement and statement of facts at the discharge port. MARAD requested that copies of those documents also be sent to the Office of Cargo Preference. The rationale is to provide that office with the necessary information to address any questions or complaints regarding the cargo delivery, and to be able to furnish vessel-owners who may make future call at those ports with historical data that may be helpful in future deliveries to those destinations to avoid recurring problems.

Response: This would add an unnecessary burden. It is FAS' responsibility to address any questions and complaints regarding food aid programs under their oversight. FAS keeps close contact with all parties involved in the food aid shipments to resolve problems that may arise. Furthermore, each U.S. flag vessel is required to send a post voyage report to the Office of Financial and Rate Approvals in MARAD. This report creates historical data that is kept on file in that office.

Comment: MARAD commented that § 1599.7(e)(5) states ocean freight is earned when vessel and cargo arrives at first port of discharge. MARAD requested that FAS use standard commercial terms and state that ocean freight is earned when cargo is loaded on the vessel. MARAD further stated that the regulation's force majeure clause takes care of any non-arrival.

Response: FAS desires to retain the policy, applicable to all USDA's foreign food aid programs, that freight is not payable under charter parties until the vessel arrives at the discharge port or, if additional services are to be performed, only a portion of the freight be paid until the services are performed. This assures, to the maximum extent possible, that carriers will perform their obligations. Upon reviewing this regulation, FAS believes that the use of the phrase “freight is earned” is confusing and may conflict with the remainder of the paragraph. Therefore, the final rule has been revised to make it clear that not more than 85% of the freight will be deemed “earned” if the charter party provides that the carrier must complete additional requirements after discharge.

Comment: MARAD requested a language change in § 1599.15(b), which requires evidence of export by onboard bill of lading authenticated by Customs. It requires the bill of lading to state destination country. MARAD suggested that FAS insert the word “final” before “destination country” as current practice has been the bills only show the destination country of discharge port when the cargo is actually destined to another inland nation. Bills have a field which allows the showing of both discharge port and final destination and both these fields should be utilized.

Response: Bills of lading show destination country where vessel carrier's responsibility ends. If inland transportation is required and the cargo is to be shipped on a through bill of lading, the bill of lading will show the ultimate destination country. However, if the Cooperating Sponsor is arranging inland transportation, the bill of lading will only show the discharge port, which is where the carrier's responsibility ends. Carriers would not want to be liable for ultimate destination if their responsibility ended at the ocean port of discharge.

Comment: MARAD expressed concern regarding language in § 1599.15(c)(i), asking why FAS only requires a report regarding claims be submitted for US-flag vessels, and not for foreign flag vessels. MARAD stated that this rule should apply equally to all vessels regardless of nationality of registry.

Response: KCCO does pursue claims on both U.S. and foreign flag vessels. FAS will amend the regulation to require both U.S. and foreign flag vessel reports.

Effective Date: In order to ensure that the McGovern-Dole International Food for Education and Child Nutrition Program is implemented this fiscal year, it is essential that this rule be made effective June 20, 2003. A delay in the effective date may jeopardize FAS' ability to review the assistance proposals received in sufficient time to conclude agreements prior to the lapse of funding authorization for this fiscal year. In addition, the program's focus on school feeding and other educational aspects of assistance requires that FAS strive to conclude agreements in sufficient time to meet the needs of the school year. The need to prepare and review proposals and procure and ship commodities consequently constitutes good cause to make this rule effective June 20, 2003.

The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation of specified animals and animal products into the United States in order to prevent the introduction of various animal diseases including Salmonella Enteritidis phage-type 4. S. enteritidis phage-type 4 is one of several kinds of Salmonella bacteria, and it has been isolated and identified as the cause of numerous outbreaks of salmonellosis in poultry in many parts of the world. Additionally, it has become one of the most prevalent serotypes causing salmonellosis in humans. The regulations in subpart C of 9 CFR part 82 contain, in part, restrictions on trade on the interstate movement of eggs from flocks affected with S. enteritidis serotype enteritidis. S. enteritidis phage-type 4 is one of several strains of S. enteritidis serotype enteritidis.

On December 16, 2002, we published in the Federal Register ( 67 FR 77004-77007, Docket No. 00-107-1) a proposal to amend the regulations to remove import restrictions on eggs (other than hatching eggs) of poultry, game birds, and other birds from regions where S. enteritidis phage-type 4 exists. We also proposed to remove our regulations regarding poultry disease caused by S. enteritidis serotype enteritidis .

We solicited comments concerning our proposal for 60 days ending February 14, 2003. We did not receive any comments. Therefore, for the reasons given in the proposed rule, we are adopting the proposed rule as a final rule without change.

This is a substantive rule that relieves restriction and, pursuant to the provisions of 5 U.S.C. 533, may be made effective less than 30 days after the publication in the Federal Register . This rule removes import restriction on eggs (other than hatching eggs) of poultry, game birds, and other birds from regions where S. enteritidis phage-type 4 exists. It also removes regulations regarding poultry diseases caused by S. enteritidis serotype enteritidis . Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective upon publication in the Federal Register .

This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

We are amending the regulations to remove import restrictions on eggs (other than hatching eggs) of poultry, game birds, and other birds from regions where S. enteritidis phage-type 4 exists. Previously, S. enteritidis phage-type 4 had not been isolated in the United States; therefore, those import restrictions were necessary to help prevent S. enteritidis phage-type 4 from being introduced into this country. However, S. enteritidis phage-type 4 is now known to be present in the United States. This action will eliminate restrictions on the importation of eggs from regions where S. enteritidis phage-type 4 exists. We are also removing our regulations regarding poultry disease caused by S. enteritidis serotype enteritidis . These regulations are no longer enforced, and it is necessary to remove them to make our regulations consistent with our enforcement.

The following analysis, which also serves as our cost-benefit analysis, considers the potential economic effects of this rule on domestic egg producers.

S. enteritidis phage-type 4 is considered to exist in all parts of the world except Canada. Under the current regulations, the importation of eggs (other than hatching eggs) from or through regions affected with S. enteritidis phage-type 4 is restricted, but not prohibited. However, in 1999, the last year for which relevant census information is available, the United States imported only 5.8 million dozen eggs (other than hatching eggs), which is equivalent to less than 0.1 percent of U.S. production that year. Eighty percent of these shell egg imports were from China. Imported eggs from Canada, the only region not subject to import restrictions because of its freedom from S. enteritidis phage-type 4, accounted for less than 1 percent of all U.S. shell egg imports in 1999.

The United States does not export a significant amount of its egg supply. In 1999, the United States exported 117 million dozen eggs (other than hatching eggs), which is equivalent to only 2 percent of the U.S. nonhatching egg production for that year. As these figures indicate, virtually all eggs produced in the United States are consumed domestically.

After China, the United States is the world's second largest egg producer. In China and other top egg-producing countries, including Japan, India, Russia, Mexico, and France, virtually all eggs produced are consumed domestically. Combined, these 6 countries exported 122 million dozen eggs in 1999, less than 1 percent of their combined production that year. While the Netherlands exported the most eggs (226 million dozen), that region is not among the top 7 egg-producing nations. Mexico reported no egg exports between 1996 and 1999.

We expect that this rule will have little or no effect on U.S. producers, large or small, for the following reasons:

• Current restrictions on eggs (other than hatching eggs) from regions where Exotic Newcastle Disease (END) exists are quite similar to the restrictions regarding S. enteritidis phage-type 4 that we are removing.

• END is considered to exist in five of the top six foreign egg-producing regions. Therefore, with the exception of France, where END is not considered to exist, import restrictions on eggs will still be in place for the regions most likely to export eggs to the United States.

• Transporting eggs to the United States from foreign markets is expensive.

• Egg production in the United States is highly mechanized, which offsets potential cost advantages that foreign producers may have over U.S. producers with regard to labor wage rates.

Based on these considerations, we believe that the removal of the restrictions on the importation of eggs from regions where S. enteritidis phage-type 4 exists will not result in any appreciable increase in egg imports or otherwise affect domestic egg producers.

Additionally, we do not expect any impact on domestic egg producers or other poultry producers to result from our removal of the regulations regarding S. enteritidis serotype enteritidis in subpart C of part 82 and § 71.3, since these regulations are no longer enforced and have not been enforced since fiscal year 1995.

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

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent 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 final 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 AD that is applicable to Turbomeca S.A. Arriel 1 series turboshaft engines was published in the Federal Register on February 12, 2003 (68 FR 7084). That action proposed to require initial and repetitive visual inspections for ingestive erosion, and cleaning if necessary, of M02 and M03 modules.

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

Three comments were made by the manufacturer.

In the first comment, the manufacturer requests that the FAA change the “prompted by” statement in the Summary to more accurately describe the module of the engine that is affected by the unbalance due to the accumulation of ingested dust. The manufacturer requests that the “prompted by” statement be changed in the AD to remove the words “* * * ingestive erosion of M02 and M03 modules” and that they be replaced with “* * *”an unbalance due to the accumulation of dust in the M03 module.”

The FAA agrees and the Summary is changed in this AD.

In the second comment, the manufacturer requests that we remove the model 1E from the Applicability statement because this model is no longer in service nor included on the Direction Generale de L'Aviation Civile (DGAC) Type Certificate. The model 1E was also erroneously included in the manufacturer's service bulletin.

The FAA does not agree. The model 1E is still included in the FAA Type Certificate Data Sheet for Arriel 1 engines; therefore, for consistency with the existing documentation, the FAA maintains the model 1E in the Applicability statement.

In the third comment, the manufacturer requests that we change paragraph (a)(2) “Modification TU 175 Not Incorporated”. The manufacturer asks that the FAA change “area D as defined in the engine maintenance manual * * *” to “area III as defined in the engine maintenance manual, even if it has not reached 1,000 operating hours, * * *”.

The FAA agrees and paragraph (a)(2) of this AD is changed.

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 described previously. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

This final rule does not have federalism implications, as defined in Executive Order 13132, because it would 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. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.

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 the 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 by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Under 14 CFR part 11, the FAA may issue a final rule with request for comments, which is a rule issued in final (with an effective date) that invites public comment on the rule. Although this action is a final rule and was not preceded by a notice of proposed rulemaking, we invite your comments on this SFAR. The most useful comments are those that are specific and related to issues raised by the SFAR, and that explain the reason for any recommended change. We specifically invite comments on the economic, environmental, energy, federalism, international trade, energy, and overall regulatory aspects of the SFAR that might suggest a need to modify it. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action is needed.

To ensure consideration, you must identify the Rules Docket number in your comments, and you must send comments to one of the addresses specified under the ADDRESSES section of this preamble. We will consider all communications received on or before the closing date for comments, and we may amend or withdraw this SFAR in light of the comments received. All comments received will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. We will file in the Rules Docket a report that summarizes each public contact related to the substance of this rule.

You may review the public docket containing comments on this SFAR in person in the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Dockets Office is on the plaza level of the Nassif Building at the Department of Transportation at the address specified in the ADDRESSES section. Also, you may review the public docket on the Internet at http://dms.dot.gov.

If you want us to acknowledge receipt of your comments on this SFAR, you must include with your comments a self-addressed, stamped postcard on which you identify the Rules Docket number of this rulemaking. We will date-stamp the postcard and return it to you.

You can get an electronic copy of this SFAR using the Internet through FAA's Web page at http://www.faa.gov/avr/arm/nprm/nprm.htm or through the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.

You can get a paper copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the docket number of this rulemaking.

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) requires the FAA to report inquiries from small entities concerning information on, and advice about, compliance with statutes and regulations within the FAA's jurisdiction, including interpretation and application of the law to specific sets of facts supplied by a small entity. If your organization is a small entity and you have a question, contact your local FAA official. If you do not know how to contact your local FAA official, you may contact the FAA Office of Rulemaking, ARM-27, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591, telephone (888) 551-1594. Internet users can find additional information on SBREFA in the FAA's Web page at http://www.faa.gov/avr/arm/sbrefa.html. You may send inquiries to the following Internet address: 9-AWA-SBREFA@faa.gov.

As a result of the terrorist attacks of September 11, 2001, many U.S. military and civilian personnel were assigned outside the United States in support of Operation Enduring Freedom. Because of the expected duration of these assignments, the FAA determined that the flight instructor certificates, inspection authorizations, and airman written test reports held by some U.S. military and civilian personnel may expire before they return to the United States. If so, these individuals would have to reestablish their qualifications. The FAA believes it is unfair to penalize these military and civilian personnel in this manner. For this reason, we adopted a Special Federal Aviation Regulation to provide relief to a narrow range of individuals in a narrow set of circumstances. See SFAR 96—Relief for Participants in Operation Enduring Freedom in parts 61, 63, and 65 of title 14 of the Code of Federal Regulations (67 FR 30524, May 6, 2002).

At the time the FAA adopted SFAR 96, we did not foresee the extent of the mobilization of U.S. Armed Forces around the world. SFAR 96 is aimed at providing relief to those who are mobilized in support of the war on terrorism. That war is ongoing. However, U.S. Armed Forces are engaged in activities, including the international effort to disarm Iraq, that have also resulted in overseas assignments for both military and civilian personnel. These personnel are in the same situation as those who are eligible for relief under SFAR 96. They are located away from the facilities and resources that would allow them to keep their credentials current. It would not be fair to extend relief to those who are fighting terrorism under Operation Enduring Freedom, but not to extend it to those who, although similarly situated, are not assigned to Enduring Freedom. Therefore, the FAA is superceding SFAR 96 with a new SFAR that applies to military and civilian personnel assigned overseas in support of any and all U.S. Armed Forces operations. Those who were eligible for relief under SFAR 96 would continue to be eligible for relief under this SFAR.

The purpose of this SFAR is to respond to the needs of U.S. military and civilian personnel who are assigned outside the United States in support of U.S. Armed Forces operations. Most of these U.S. military and civilian personnel are or will be located at military bases that are away from their normal training or work environment. There are no FAA aviation safety inspectors, designated examiners, or FAA facilities readily available in the areas where these U.S. military and civilian personnel are assigned. The FAA determined that we should provide relief to those U.S. military and civilian personnel who are unable to comply with the regulatory time constraints of their flight instructor certificate, inspection authorization, or airman written test report as a result of their assignment outside the United States in support of U.S. Armed Forces operations. Under similar circumstances in the past, the FAA has taken similar action. During Operation Desert Shield/Desert Storm, the FAA issued SFAR No. 63 for this same purpose. See 56 FR 27160, June 12, 1991.

As described below, this SFAR is narrowly focused on providing a reasonable amount of regulatory relief to a specific class of individuals while avoiding, to the extent possible and foreseeable, unintended adverse impacts on safety. For example, although the SFAR gives additional time for renewing a flight instructor certificate, the person will still have to meet the proficiency or experience requirements of 14 CFR 61.197 in order to re-qualify.

To be eligible for the relief provided by this SFAR, a person must meet two criteria—one related to the person's assignment and the second related to the expiration of the person's certificate, authorization, or test report.

Assignment. The person must have served in a civilian or military capacity outside the United States in support of U.S. Armed Forces operations some time between September 11, 2001, and June 20, 2005. The term “United States” is defined under 14 CFR 1.1 and means “the States, the District of Columbia, Puerto Rico, and the possessions, including the territorial waters and the airspace of those areas.”

“In support of U.S. Armed Forces operations” means an assignment that supports operations being conducted by our U.S. Army, Navy, Air Force, Marine Corps, and Coast Guard, including their regular and reserve components. Members serving without component status are also covered. A person seeking relief under this SFAR must be able to show that he or she had an assignment as described above by providing appropriate documentation that is described below.

Expiration. The person's flight instructor certificate, inspection authorization, or airman written test report must have expired some time between September 11, 2001, and 6 calendar months after returning to the United States, or by June 20, 2005, whichever date is earlier.

The FAA regulations governing flight instructor certificates provide that they expire 24 calendar months after the month of issuance. The regulations also provide that a flight instructor may renew his or her certificate before it expires, but if it expires, the flight instructor must get a new certificate. If you are interested in the details of how to get or renew a flight instructor certificate, please see 14 CFR 61.197 and 61.199.

This SFAR changes the existing regulations for a certain class of individuals by allowing FAA Flight Standards District Offices to accept for a limited amount of time an expired flight instructor certificate for the purpose of renewing the certificate. Therefore, a person who can show the kind of evidence required by this SFAR (described below) can apply for renewal of a flight instructor certificate under 14 CFR 61.197. A person cannot exercise the privileges of a flight instructor certificate if it has expired, but the person can renew the flight instructor certificate under the limited circumstances described in this SFAR.

Generally, FAA regulations give airmen a limited amount of time to take a practical test after passing a knowledge test. For example, 14 CFR 61.39(a)(1) gives a person 24 calendar months. This SFAR permits an extension of the expiration date of the airman written test reports of parts 61, 63, and 65. The extension can be for up to six calendar months after returning to the United States or June 20, 2005, whichever date is earlier.

Under 14 CFR 65.92, an inspection authorization expires on March 31 of each year. Under 14 CFR 65.93, a person can renew an inspection authorization for an additional 12 calendar months by presenting certain evidence to the FAA during the month of March. This SFAR changes the existing regulations for individuals eligible under this SFAR by allowing FAA Flight Standards District Offices to accept for a limited amount of time an expired inspection authorization for the purpose of renewing the authorization. Therefore, a person who can show the kind of evidence required by this SFAR (described below) can apply for renewal of an inspection authorization under 14 CFR 65.93. If an inspection authorization expires, the person must not exercise the privileges of the authorization until that person renews the authorization. In this case, to meet the renewal requirements the person must attend a refresher course ( see § 65.93(a)(4)) or submit to an oral test ( see § 65.93(a)(5)) within 6 months after returning to the United States from an assignment while outside the United States in support of U.S. Armed Forces operations.

A person must show one of the following kinds of evidence to establish that the person is eligible for the relief provided by this SFAR:

1. An official U.S. Government notification of personnel action, or equivalent document, showing the person was a U.S. civilian on official duty for the U.S. Government and was assigned outside the United States in support of U.S. Armed Forces operations at some time between September 11, 2001, and June 20, 2005;

2. An official military order that shows the person was assigned to military duty outside the United States in support of U.S. Armed Forces operations at some time between September 11, 2001, and June 20, 2005; or

3. A letter from the person's military commander or civilian supervisor providing the dates during which the person served outside the United States in support of U.S. Armed Forces operations at some time between September 11, 2001, and June 20, 2005.

Under the Administrative Procedure Act, 5 U.S.C. 553, agencies generally must publish regulations for public comment and give the public at least 30 days notice before adopting regulations. There is an exception to these requirements if the agency for “good cause” finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. When we invoke the good cause” exception, we have to publish a statement of our finding and the reasons for it.

Under 14 CFR part 11, the FAA is issuing this SFAR as a final rule with request for comment. The FAA has determined that issuing a notice of proposed rulemaking (NPRM) is unnecessary. An NPRM is unnecessary because the agency does not anticipate any substantive comments. When the FAA issued SFAR No. 96 for Operation Enduring Freedom, we received no comments. The FAA will consider any comments that it receives on or before the closing date for comments, and may amend or withdraw this SFAR in light of the comments it receives. The FAA finds good cause to make this SFAR effective immediately upon publication. To make this SFAR effective 30 days after publication in the Federal Register would be contrary to the public interest. A delayed effective date could adversely affect the ability of airmen to get renewals in a timely fashion.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA determined that there are no ICAO Standards and Recommended Practices that relate to this SFAR.

In accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), the FAA has determined that there are no new requirements for information collection associated with this SFAR.

Proposed changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866, Regulatory Planning and Review, directs that each Federal agency propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. And fourth, the Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more, in any one year (adjusted for inflation).

The Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If it is determined that the expected impact is so minimal that the regulation does not warrant a full evaluation, a statement to that effect and the basis for it is included in the preamble. The FAA has determined that the expected economic impact of this SFAR is so minimal that it does not warrant a full regulatory evaluation. This action imposes no costs on operators subject to this rule; however, it does provide some unquantifiable benefits to some who would avoid the costs of having to reestablish expired credentials. Since benefits exceed costs, the FAA has determined that this SFAR is consistent with the objectives of Executive Order 12866.

The Regulatory Flexibility Act of 1980 (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the Act requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The Act covers a wide range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.

Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the determination is that it will, the agency must prepare a regulatory flexibility analysis as described in the Act.

However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

This action imposes no costs on any small entities subject to this rule. Consequently, the FAA certifies that the rule will not have a significant economic impact on a substantial number of small entities. We request comments from the public on this issue.

The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and where appropriate, that they be the basis for U.S. standards. In accordance with the above statute, the FAA has assessed the potential effect of this final rule to be minimal and therefore has determined that this rule will not result in an impact on international trade by companies doing business in or with the United States.

The Unfunded Mandates Reform Act of 1995 (UMRA), enacted as Pub. L. 104-4 on March 22, 1995, is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of UMRA requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.”

This SFAR does not contain such a mandate. Therefore, the requirements of title II of UMRA do not apply.

The FAA analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, we determined that this final rule does not have federalism implications.

FAA Order 1050.1D defines FAA actions that may be categorically excluded from preparation of a National Environmental Policy Act (NEPA) environmental impact statement. In accordance with FAA Order 1050.1D, appendix 4, paragraph 4(j) this rulemaking action qualifies for a categorical exclusion.

We have assessed the energy impact of this SFAR in accord with the Energy Policy and Conservation Act (EPCA), Pub. L. 94-163, as amended (42 U.S.C. 6362), and FAA Order 1053.1. The FAA has determined that this SFAR is not a major regulatory action under the provisions of the EPCA.

The FAA published this direct final rule with a request for comments in the Federal Register on May 9, 2003 (68 FR 24866). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on September 4, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on May 19, 2003 (68 FR 26963). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on September 4, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on May 9, 2003 (68 FR 24869). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on September 4, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on May 9, 2003 (68 FR 24872). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on September 4, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on May 5, 2003 (68 FR 23582). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on September 4, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on May 9, 2003 (68 FR 24871). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on September 4, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on May 5, 2003 (68 FR 23579). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on September 4, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

On Monday, May 5, 2003, the FAA proposed to amend Title 14 Code of Federal Regulations, part 71 (14 CFR part 71) by establishing a Class E airspace area at Brookfield, MO (68 FR 23622). The FAA has developed an Area Navigation (RNAV) Global Positioning System (GPS) Runway (RWY) 18, ORIGINAL SIAP and an RNAV (GPS) RWY 36, ORIGINAL SIAP to serve North Central Missouri Regional Airport, Brookfield, MO. Controlled airspace extending upward from 700 feet Above Ground Level (AGL) is needed to accommodate the SIAPs. The proposal was to establish a Class E airspace area extending upward from 700 feet above the surface at Brookfield, MO. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in Paragraph 6005 of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR Part 71 establishes a Class E airspace area extending upward from 700 feet above the surface at Brookfield, MO. This action provides controlled airspace to accommodate aircraft executing newly developed SIAPs serving North Central Missouri Regional Airport, Brookfield, MO. The area will be depicted on appropriate aeronautical charts.

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

The FAA published this direct final rule with a request for comments in the Federal Register on May 5, 2003 (68 FR 23581). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on September 4, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

This amendment to 14 CFR 71 modifies the Class E airspace at Cambridge, NE. An RNAV (GPS) RWY 14, ORIGINAL SIAP and an RNAV (GPS) RWY 32, ORIGINAL SIAP have been developed to serve Cambridge Municipal Airport, Cambridge, NE. NDB RWY 32, AMENDMENT 4 SIAP, serving Cambridge Municipal Airport, has been developed. The Cambridge, NE controlled airspace must be tailored to contain aircraft executing the approach procedures. This action modifies Class E airspace extending upward from 700 feet above ground level (AGL) at Cambridge, NE. An examination of controlled airspace for Cambridge, NE revealed discrepancies in the Cambridge Municipal Airport, NE airport reference point used in the legal description for the Cambridge, NE Class E airspace area. The examination also revealed a misapplication of Magnetic Variation data in the legal description of bearings from the Harry Strunk NDB. Class E controlled airspace at Cambridge, NE is defined, in part, by the Cambridge Municipal Airport airport reference point and by bearings from the Harry Strunk NDB. This action corrects discrepancies between the previous and revised airport reference points and the miscalculated NDB bearings by modifying the Cambridge, NE Class E airspace area. It incorporates the revised Cambridge Municipal Airport airport reference point and the correct NDB bearings into the Class E airspace legal description and brings the airspace area into compliance with FAA Order 7400.2E, Procedures for Handling Airspace Matters. The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2003-15257/Airspace Docket No. 03-ACE-50.” The postcard will be date/time 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 noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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.

Federal Register Document 03-9728 published on Monday, April 21, 2003 (68 FR 19342), established Class E Airspace at Cavalier, ND. Cavalier was misspelled throughout the docket. This action corrects these errors.

Accordingly, pursuant to the authority delegated to me, the errors for the Class E Airspace, Cavalier, ND, as published in the Federal Register Monday, April 21, 2003, (68 FR 19342), (FR Doc. 03-9728), are corrected as follows:

1. On page 19342, Columns 2 and 3; in the title, under the summary, in the History, and in The rule, correct: “Cavelier” to read “Cavalier”.

2. On page 19343, Column 1; in the legal description, correct: “Cavelier” to read “Cavalier”.

We use the Listings in appendix 1 to subpart P of part 404 at the third step of the sequential evaluation process to evaluate claims filed by adults and children for benefits based on disability under the Social Security and SSI programs. The Listings are divided into parts A and B. We use the criteria in part A to evaluate the impairments of adults. We first use the criteria in part B to evaluate impairments of children. If the criteria in part B do not apply, then we will apply the medical criteria in part A.

In this final rule, we are extending until July 1, 2005, the date on which several body system listings will no longer be effective, in order to allow sufficient time for us to revise them. These body systems are:

As a result of medical advances in disability evaluation and treatment, and program experience, we periodically review and update the Listings. We are extending the current expiration date for these Listings because we will not complete revised listings criteria for these body systems by the current expiration date. We are currently in the process of revising these body system listings. Since we last extended the expiration date of the listings, we have published several notices of proposed rulemaking (or advance notices of proposed rulemaking) proposing to revise the criteria of the listings in several body systems. We intend to publish proposed and final rules for the listings in each body system as expeditiously as possible, however, it will not be possible to do so by July 2, 2003, the current expiration date.

In final rules published on June 28, 2001 (66 FR 34361), we extended to July 2, 2003 the date on which the listings for the following body systems would no longer be effective: Growth Impairment; Musculoskeletal System; Special Senses and Speech; Cardiovascular System; Digestive System; Genito-Urinary System; Hemic and Lymphatic System; Skin; Endocrine System; Multiple Body Systems (110.00); Neurological; Mental Disorders; Neoplastic Diseases, Malignant; and Immune System. On June 28, 2002, we published final rules extending until July 2, 2003 the date on which the respiratory body system listings will no longer be effective (67 FR 43537). Until we publish revised language for each body system listings, the current listings remain valid for our program purposes.

On November 19, 2001, we published revised listings for the musculoskeletal body system (1.00 and 101.00) (66 FR 58010). The listings for the musculoskeletal body system will no longer be effective on February 19, 2009, unless they are extended or revised and promulgated again (66 FR at 58037). The expiration date for the musculoskeletal body system listings is not affected by this final rule. In addition, on June 19, 2000, we published final rules establishing a separate listing (Listing 10.06) for evaluating non-mosaic Down Syndrome in adults, and created a multiple body system listing section in the Part A listings. (65 FR 31800). The Part A multiple body system listings will no longer be effective on June 19, 2008 (65 FR at 31802). The expiration date for the listing in this body system also is not affected by this final rule.

Pursuant to section 702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5), we follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in the development of regulations. The APA provides exceptions to its notice and public comment procedures when an agency finds there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary, or contrary to the public interest. We have determined that, under 5 U.S.C. 553(b)(B), good cause exists for dispensing with the notice and public comment procedures for this rule. Good cause exists because this final rule only extends the date on which these body system listings will no longer be effective. It makes no substantive changes to those listings. The current regulations expressly provide that listings may be extended, as well as revised and promulgated again. Therefore, we have determined that opportunity for prior comment is unnecessary, and we are issuing this regulation as a final rule.

In addition, we find good cause for dispensing with the 30-day delay in the effective date of a substantive rule provided by 5 U.S.C. 553(d). As explained above, we are not making any substantive changes in these body system listings. However, without an extension of the expiration dates for these listings, we will lack regulatory criteria for assessing impairments in these body systems at the third step of our sequential evaluation process after the current expiration date of these listings. In order to ensure that we continue to have regulatory criteria for assessing impairments under these listings, we find that it is in the public interest to make this final rule effective on the date of publication.

We have consulted with the Office of Management and Budget (OMB) and determined that this final rule does not meet the criteria for a significant regulatory action under Executive Order (E.O.) 12866, as amended by E.O. 13258. We have also determined that this final rule meets the plain language requirement of E.O. 12866, as amended by E.O. 13258.

We certify that this final rule will not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis, as provided in the Regulatory Flexibility Act, as amended, is not required.

This final rule imposes no reporting/recordkeeping requirements necessitating clearance by OMB.

Anthony Products, Co., 5600 Peck Rd., Arcadia, CA 91006, has informed FDA that it has transferred ownership of, and all rights and interest in, the following four approved NADAs to Cross Vetpharm Group, Ltd., Broomhill Rd., Tallaght, Dublin 24, Ireland.

Accordingly, the agency is amending the regulations in §§ 522.1662a, 522.1680, and 524.1580b (21 CFR 522.1662a, 522.1680, and 524.1580b) to reflect the transfer of ownership. No amendment of 21 CFR 520.1720a is necessary as each sponsor owns additional phenylbutazone products.

In addition, § 522.1662a is being revised to reflect current format. This action is being taken to improve consistency between sections of the regulations.

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

(a) Specifications . Each milliliter (mL) of solution contains 20 USP units oxytocin.

On April 21, 2003, MSHA issued a direct final rule (68 FR 19344) to update the Agency's requirements for operator restraint systems (seat belts) for off-road work machines and wheeled agricultural tractors at metal and nonmetal mines. The final rule requires seat belts for off-road work machines to meet the requirements of the Society of Automotive Engineers' (SAE) consensus standard SAE J386, Operator Restraint System for Off-Road Work Machines (1985, 1993, or 1997), as applicable. It also requires seat belts for wheeled agricultural tractors to meet the requirements of SAE J1194, Roll-Over Protective Structures (ROPS) for Wheeled Agricultural Tractors (1983, 1989, 1994, or 1999), as applicable. The direct final rule makes compliance easier and reduces burden for mine operators by allowing them to use the operator restraint systems provided by manufacturers on new equipment, when they comply with more recent revisions of the incorporated SAE standards. These more recent revisions reflect advances in seat belt design and materials. The direct final rule does not reduce protection for miners.

MSHA determined that this rulemaking was suitable for a direct final rule because we did not expect that updating the metal and nonmetal seat belt standards, to include the revised SAE consensus standards, would elicit any significant adverse comments. The preamble to the direct final rule explained that—

MSHA received two comments on its direct final rule. Both comments suggest other seat belt standards for MSHA's consideration. MSHA fully considered both comments and determined that they were not “significant adverse comments.” These comments can be viewed on MSHA's Web site at http://www.msha.gov/regs/comments .

One comment suggests that the direct final rule incorporate SAE J2292, Combination Pelvic/Upper Torso (Type 2) Operator Restraint Systems for Off-Road Work Machines . SAE J2292 is an Information Report, not a consensus standard. It provides guidance on three and four-point pelvic and upper torso operator restraint systems. MSHA does not require combination pelvic/upper torso operator restraint systems. SAE J2292 testing and performance criteria for the pelvic restraint portion of the operator restraint system, however, relies on SAE J386, the industry consensus standard incorporated into the direct final rule. MSHA determined that the comment is not a significant adverse comment because SAE J2292 relies on the same testing and performance criteria used in SAE J386 and requires seat belt assemblies to be labeled to indicate compliance with J386/J2292. This comment does not challenge the underlying premise of the direct final rule and there is no indication in the comment that the direct final rule would be ineffective or unacceptable without the change.

A second comment suggests that MSHA standards incorporate the Department of Transportation (DOT), National Highway Traffic Safety Administration's (NHTSA) performance specifications for seat belts. MSHA determined that this was not a significant adverse comment because MSHA's standard, 30 CFR 56/57.14131, addresses seat belts for off-road trucks and NHTSA's standard, 49 CFR 571.209, applies to over-the-road “passenger cars, multipurpose passenger vehicles, trucks, and buses” (49 CFR 571.209 S2). The comment is beyond the scope of this rulemaking, does not explain why the direct final rule is inappropriate, does not challenge the rule's underlying premise, and does not explain why the direct final rule would be ineffective or unacceptable without a change.

It has been determined that this rule is not a significant regulatory action. The rule does not:

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

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

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

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

It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. The amendments are required to update tax withholding procedures to comply with the Treasury Financial Manual, Volume 1, Section 506f and to update the Uniformed Services retired pay addresses.

It has been certified that this rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1) The States;

(2) The relationship between the National Government and the States; or

(3) The distribution of power and responsibilities among the various levels of government.

On November 18, 2002, the Department of Defense published a Notice of Availability (67 FR 69512) inviting public comments on DoD Directive 5500.17, “Role and Responsibilities of the Joint Service Committee (JSC) on Military Justice.”

It has been determined that 32 CFR part 152 is not a significant regulatory action. This rule does not: (1) Have an annual effect to the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs, the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligation or recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866.

It has been determined that this part is not subject to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This part presents no economic impact and solely involves the rules and procedures governing the internal Department of Defense annual review of the Manual for Courts-Martial and the procedures affecting military justice actions.

It has been determined that this part does not impose any reporting or recordkeeping requirements under the Paperwork Reduction act of 1995.

It has been determined that this part does not involve a Federal Mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.

It has been determined that this part does not have federalism implications. This part 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.

This section is organized as follows:

In November of 1999, EPA issued two memoranda  1 to articulate its policy regarding states that incorporated MOBILE5-based interim Tier 2 standard  2 benefits into their SIPs and MVEBs. Although these memoranda primarily targeted certain serious and severe ozone nonattainment areas, EPA has implemented this policy in all other areas that have made use of federal Tier 2 benefits in air quality plans from EPA's April 2000 MOBILE5 guidance, “MOBILE5 Information Sheet #8: Tier 2 Benefits Using MOBILE5.” All states whose attainment demonstrations or maintenance plans include interim MOBILE5-based estimates of the Tier 2 standards were required to make a commitment to revise and resubmit their MVEBs within either one or two years of the final release of MOBILE6 in order to gain SIP approval.

On December 22, 2000, Wisconsin submitted a revision to the One-Hour Ozone Attainment Demonstration SIP for the Milwaukee severe ozone area and the Sheboygan ozone maintenance area. This SIP revision included, among other things, revised MVEBs using interim MOBILE5-based estimates of the Tier 2 standards and an enforceable commitment to revise the attainment demonstration using the MOBILE6 model, including MVEBs, within one year of the release of the model. Additional information on EPA's final approval of Wisconsin's December 22, 2000, submittal is in the November 13, 2001, Federal Register (66 FR 56931).

EPA officially released the MOBILE6 motor vehicle emissions factor model on January 29, 2002 (67 FR 4254). Thus, the effective date of that Federal Register notice constituted the start of the one year time period in which Wisconsin was required to revise its One-Hour Ozone Attainment Demonstration SIP using the MOBILE6 model. Wisconsin was required to submit this SIP revision to EPA by January 29, 2003.

MOBILE is an EPA emissions factor model for estimating pollution from on-road motor vehicles in states outside of California. MOBILE calculates emissions of volatile organic compounds (VOCs), nitrogen oxides (NO X ) and carbon monoxide (CO) from passenger cars, motorcycles, buses, and light-duty and heavy-duty trucks. The model accounts for the emission impacts of factors such as changes in vehicle emission standards, changes in vehicle populations and activity, and variation in local conditions such as temperature, humidity, fuel quality, and air quality programs.

MOBILE is used to calculate current and future inventories of motor vehicle emissions at the national and local level. These inventories are used to make decisions about air pollution policies and programs at the local, state and national level. Inventories based on MOBILE are also used to meet the federal Clean Air Act's SIP and transportation conformity requirements.

MOBILE6 is the first major update of the MOBILE model since 1993. The MOBILE model was first developed in 1978. It has been updated many times to reflect changes in the vehicle fleet and fuels, to incorporate EPA's growing understanding of vehicle emissions, and to cover new emissions regulations and modeling needs. Although some minor updates were made in 1996 with the release of MOBILE5b, MOBILE6 is the first major revision to MOBILE since MOBILE5a was released in 1993.

To address its enforceable commitment made in the December 22, 2000, Attainment Demonstration SIP revision, the State submitted a proposed SIP revision on January 31, 2003, which revises the 2007 motor vehicle emissions inventories and the 2007 MVEBs using the MOBILE6 model. The January 31, 2003, submittal demonstrates that the new levels of motor vehicle emissions calculated using MOBILE6 continue to support achievement of the projected attainment of the one-hour ozone NAAQS for the Milwaukee area and maintenance of the ozone NAAQS for Sheboygan area.

Table 1 below summarizes the revised motor vehicle emissions inventories in tons per summer day (tpd). The State developed these revised inventories using the latest planning assumptions, including updated vehicle registration data from 1999 through 2001, vehicle miles traveled (VMT), speeds, fleet mix, and SIP control measures. EPA is proposing to approve these revised 2007 motor vehicle emissions inventories.

Wisconsin's attainment demonstration used photochemical grid modeling in the absolute sense. Absolute modeling refers to uses the output from a model to compare directly against a standard. For one-hour ozone, this means that the daily peak one-hour concentration predicted in every grid cell by the model would be compared to a ozone standard concentration of 124 parts per billion (ppb). This is best represented by the deterministic approach described in the 1996 Guidance on Use of Modeled Results to Demonstrate Attainment of the Ozone NAAQS, EPA, June 1996. That guidance also describes a statistical approach which allows a specific number of exceedances of the standard. However, final attainment is still determined in an absolute sense by comparing a predicted concentration with the one-hour standard value of 124 ppb. EPA has articulated its policy regarding the use of MOBILE6 in SIP development in its “Policy Guidance on the Use of MOBILE6 for SIP Development and Transportation Conformity”  3 and “Clarification of Policy Guidance for MOBILE6 in Mid-course Review Areas.”  4 This policy requires that new MOBILE6 MVEBs in areas that demonstrated attainment with absolute modeling meet two conditions. First, the new MOBILE6 based mobile source inventories are compared to the MOBILE5 based inventories for the attainment year. If the MOBILE6 mobile emissions are less than or equal to the MOBILE5 emissions, then the SIP continues to demonstrate attainment. Second, EPA's policy guidance requires the State to consider whether growth and control strategy assumptions for non-motor vehicle sources ( i.e. , point, area, and non-road mobile sources) are still accurate at the time the State developed submittal.

Consistent with this policy guidance, Wisconsin's updated MOBILE6 inventories were equal to the MOBILE5 attainment demonstration inventories for the Milwaukee and Sheboygan areas. It should be noted that Wisconsin used the latest planning assumptions in developing of the updated inventories. Wisconsin reviewed the growth and control strategy assumptions for non-motor vehicle sources, and concluded that these assumptions continue to be valid and support the one-hour Ozone Attainment Demonstration.

In summary, Wisconsin's January 31, 2003, submittal satisfies the conditions outlined in EPA's MOBILE6 Policy guidance, and demonstrates that the new levels of motor vehicle emissions calculated using MOBILE6 continue to support achievement of the projected attainment of the one-Hour Ozone NAAQS by the attainment date of 2007.

Table 2 below summarizes Wisconsin's revised 2007 MVEBs contained in the January 31, 2003, submittal. The State developed MVEBs using the latest planning assumptions, including updated vehicle registration data, VMT, speeds, fleet mix, and SIP control measures. The Wisconsin submittal met all applicable requirements and EPA is proposing to approve all of these budgets.

Table 3 below summarizes the Sheboygan maintenance area's 2007 and new 2012 emissions inventory contained in the January 31, 2003, submittal:

This document is organized according to the following Table of Contents.

We are taking final action to fully approve revisions to the Connecticut, Massachusetts and Rhode Island SIP's as meeting Phase I and Phase II of the EPA's NO X SIP Call. Specifically, we are approving revisions to the SIP narratives for each of the state's NO X SIP Call programs. The narrative material was originally submitted by Connecticut, Massachusetts and Rhode Island as a SIP revision on September 30, 1999, November 19, 1999 and October 1, 1999, respectively. While we approved the original SIP revisions on December 27, 2000 (65 FR 81743), we identified technical corrections the states needed to make to the NO X budgets for non-electric generating units and highway mobile sources. Today's action approves those technical corrections into the SIP for each state.

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This action will be effective August 19, 2003 without further notice unless the EPA receives adverse comments by July 21, 2003.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on August 19, 2003 and no further action will be taken on the proposed rule.

On December 27, 2000 (65 FR 81743) we published a Final Rulemaking Notice (FRN) for the States of Connecticut, Massachusetts and Rhode Island, approving each state's SIP revision for a Nitrogen Oxides Budget and Allowance Trading Program. Each state submitted its SIP revision in response to EPA's October 27, 1998 (63 FR 57356) regulation “Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone,” otherwise known as the “NO X SIP Call.” While we approved the SIP revisions as SIP strengthening measures meeting the air quality objectives of the NO X SIP Call, we noted that we could not fully approve the SIP revisions as meeting the NO X SIP Call because of an inconsistency with the non-electric generating unit (non-EGU) and highway mobile source NO X budgets for these three states.

Connecticut, Massachusetts and Rhode Island submitted their NO X SIP Call revisions in September 1999, November 1999, and October 1999, respectively. The three states adopted the baseline NO X emissions and NO X budgets established by EPA in its technical amendments to the NO X SIP Call budgets published on May 14, 1999 (64 FR 26298). Baseline NO X emissions and NO X budget were included for the following categories; electric generating units (EGU), non-EGUs, area sources, non-road mobile sources and highway mobile sources. The state NO X budgets for each category, except the EGU category, were adopted directly from the EPA's May 14, 1999 Federal Register notice. The EGU NO X budgets were adopted from the Memorandum of Understanding (MOU) between Massachusetts, Connecticut, Rhode Island and EPA. The MOU redistributed the EGU portions of the state NO X budgets to better reflect each state's existing EGU NO X budget under the Ozone Transport Commission's NO X control program. See the September 15, 1999 (64 FR 50036) notice of proposed rulemaking for more information on the MOU. The resulting NO X budgets for each state were submitted as part of the supporting NO X SIP Call narrative material. See table 1 for NO X budgets submitted by the states in 1999.

Subsequent to the states submission of the NO X SIP Call revisions, the EPA issued additional technical amendments to the NO X SIP call on March 2, 2000 (65 FR 11222) further revising the baseline NO X emissions and NO X budgets for each state's non-EGU and highway mobile source categories (the EGU, area and non-road mobile source NO X budgets remained unchanged). As a result, the state NO X budgets that were submitted in 1999 were not consistent with the EPA's March 2, 2000 revised baseline NO X emissions and NO X budgets for non-EGU and highway mobile sources. Therefore, we requested that Connecticut, Massachusetts and Rhode Island submit a SIP revision amending the SIP narrative to adopt the EPA's March 2, 2000 non-EGU and highway mobile source NO X budgets.

Connecticut, Massachusetts and Rhode Island submitted SIP revisions to revise their NO X SIP Call emissions budgets for the non-EGU and highway mobile source categories on August 1, 2002, August 10, 2002 and September 20, 2001, respectively. The budget revisions affect only the SIP narrative material and we have determined that the revised NO X budgets are consistent with the EPA's March 2, 2000 (65 FR 11222) technical revision to the NO X SIP Call budgets. In revising the non-EGU and highway mobile source NO X budgets, the states have responded to the only issues raised in our December 27, 2000 (65 FR 81743) notice and, therefore, we are approving the SIP revisions as meeting the NO X SIP Call.

On March 3, 2000, the D.C. Circuit Court issued a ruling that supported most portions of EPA's NO X SIP Call Rule. However, the court remanded three issues for the Agency to re-examine before moving ahead. In response, EPA separated the NO X SIP Call Rule into two phases. Under Phase I of the rule, EPA moved ahead with those aspects of the rule supported by the Court for 19 States and the District of Columbia. The EPA requires these areas to submit SIPs showing how they will reduce air emissions of NO X from industrial facilities except for stationary internal combustion engines and a small subclass of facilities that generate electricity, known as cogenerators. EPA required states subject to the rule to submit their implementation plans to comply with Phase I of the strategy by October 30, 2000.

On February 22, 2002 (67 FR 8396), EPA published a proposed rulemaking in response to the March 3, 2000 D.C. Circuit ruling. This proposed rulemaking addresses Phase II of the NO X SIP Call, responding to the issues the court remanded back to the EPA. Two of the four remanded issues affect the NO X budgets for Connecticut, Massachusetts and Rhode Island: The rulings that the EPA failed to provide adequate notice of the change in the definition of EGU as applied to cogeneration units; and that EPA failed to provide adequate notice of the change in control level assumed for large stationary internal combustion engines.

The Phase II notice includes proposed Phase II NO X budgets based on two different levels of control for internal combustion engines, 82 and 91 percent. The revised NO X budgets submitted by Connecticut, Massachusetts and Rhode Island are more stringent than they would be using the 91 percent control level for internal combustion engines. Furthermore, the revised NO X budgets collectively meet both the Phase I and proposed Phase II budgets of EPA's NO X SIP Call. It should be noted that the Phase II budgets included in the February 22, 2002 notice for Connecticut, Massachusetts and Rhode Island are not adjusted to account for the reallocation of the EGU budgets according to the MOU (see discussion in section IV below).

In today's action, EPA is approving the SIP revisions from Connecticut, Massachusetts and Rhode Island as fully meeting the NO X SIP Call requirements including both the Phase I and Phase II statewide NO X emissions budgets. The EPA recognizes that its Phase II rulemaking has not been completed but fully expects that the final statewide budgets promulgated in that rulemaking will be no more stringent than the NO X budgets submitted by the three states. However, once EPA finalizes the Phase II rule, should the Connecticut, Massachusetts or Rhode Island 2007 NO X emissions budgets being approved today exceed the EPA's final Phase II budgets, EPA will take appropriate action.

On August 1, 2002, Connecticut submitted a SIP revision to revise the state's NO X SIP Call emissions budget for the non-EGU and highway mobile source categories (See Table 2). The revision was submitted, as requested by EPA, to make Connecticut's non-EGU and highway mobile emissions budgets consistent with EPA's March 2, 2000 technical revision to the NO X SIP Call budgets. The budget revisions affect only the SIP narrative material “Connecticut SIP Revision to Implement the NO X SIP Call,” dated September 30, 1999, and originally submitted to EPA for approval on September 30, 1999. The revisions to the narrative material do not affect the regulatory program, which was also approved by EPA on December 27, 2000 (65 FR 81743) along with the SIP narrative material.

On August 10, 2002, Massachusetts submitted a SIP revision to revise the State's NO X SIP Call emissions budget for the non-EGU and highway mobile source categories (See Table 2). The revision was submitted, as requested by EPA, to make Massachusetts' non-EGU and highway mobile emissions budgets consistent with EPA's March 2, 2000 technical revision to the NO X SIP Call budgets. The budget revisions affect only the SIP narrative material “Background Document and Technical Support for Public Hearings on the Proposed Revisions to State Implementation Plan for Ozone,” dated July 1999, and originally submitted to EPA for approval on November 19, 1999. The revisions to the narrative material do not effect the regulatory program, which was also approved by EPA on December 27, 2000 (65 FR 81743) along with the SIP narrative material.

On September 20, 2001, Rhode Island submitted a SIP revision to revise the State's NO X SIP Call emissions budget for the non-EGU and highway mobile source categories (See Table 2). The revision was submitted, as requested by EPA, to make Rhode Island's non-EGU and highway mobile emissions budgets consistent with EPA's March 2, 2000 technical revision to the NO X SIP Call budgets. The budget revisions affect only the SIP narrative material “NO X State Implementation Plan (SIP) Call Narrative,” dated September 22, 1999, and originally submitted to EPA for approval on October 1, 1999. The revisions to the narrative material do not effect the regulatory program, which was also approved by EPA on December 27, 2000 (65 FR 81743) along with the SIP narrative material.

As discussed in our December 27, 2000 approval notice, Connecticut, Massachusetts, Rhode Island, and EPA signed a memorandum of understanding agreeing to redistribute the EGU portions of the three states' NO X budgets amongst themselves. Therefore, it is necessary to consider the adopted 2007 NO X emission budgets and adopted NO X reducing measures in the three states together to approve any individual state SIP submittal as meeting the NO X SIP Call.

Under the MOU, the combined 2007 controlled emission levels did not change for the three states, only the individual state EGU allocations were redistributed to provide additional flexibility and consistency with existing programs among these three states. EPA supports this concept because such a redistribution is no different than the effects of trading. For a detailed discussion of why EPA supports the concept that states can collectively redistribute their NO X SIP Call budgets, see the proposed notice dated, September 15, 1999 (64 FR 49989).

As indicated in Table 3, the budget revisions submitted by the states collectively achieve at least the same NO X reduction as the EPA's Phase I and Proposed Phase II budgets. Therefore, EPA finds that the NO X SIP Call submittals from the three states collectively meet both Phase I and II of the NO X SIP Call as published to date.

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

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “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 19, 2003. Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal. 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).)

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 revise their programs accordingly and apply to EPA to authorize the revisions. Revisions to State programs may be necessary when Federal or State statutory or regulatory authority is changed. For example, most commonly, States must revise their programs when EPA promulgates changes to its regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

Virginia received final authorization on December 4, 1984, effective December 18, 1984 (49 FR 47391), to implement a hazardous waste management program in lieu of the Federal Program. EPA subsequently granted authorization for revisions to Virginia's program on June 14, 1993, effective August 13, 1993 (58 FR 32855); and July 31, 2000, effective September 29, 2000 (65 FR 46607).

On September 24, 2002, Virginia submitted to EPA a complete program revision application, in accordance with 40 CFR 271.21, seeking authorization of additional changes to its program. On March 13, 2003, EPA published an immediate final rule (68 FR 11981-11986) granting Virginia 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 final authorization (68 FR 12015). 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 April 14, 2003. Further, EPA stated in both notices that if it received adverse comments on its intent to authorize Virginia's program revisions that it would (1) withdraw the immediate final rule; (2) proceed with the proposed rule as the basis for the receipt and evaluation of such comments, and (3) subsequently publish a final determination responding to such comments and announce its final decision as to whether or not to authorize Virginia's program revisions. EPA received adverse written comments during the public comment period and on May 2, 2003, published a document withdrawing the immediate final rule (68 FR 23407-23408). Since all of the comments received related only to the Hazardous Waste Lamps Rule, EPA is authorizing the remaining provisions. Today's action grants final authorization for all program revisions described in EPA's proposed rule, with the exception of the provisions of the Hazardous Waste Lamps Rule. EPA will respond to comments on the Hazardous Waste Lamps Rule in a separate action and publish EPA's final decision as to whether or not to authorize the Hazardous Waste Lamps Rule for Virginia. Further background on EPA's immediate final rule and its tentative determination to grant authorization to Virginia for its program revisions appears in the aforementioned Federal Register documents.

The Agency received comments from twelve (12) sources. All comments received specifically related to the Hazardous Waste Lamps Rule. Of these comments, four (4) favored the authorization of these provisions and eight (8) were adverse. One of the eight adverse comments was postmarked one day after the deadline. EPA will address all public comments regarding authorization of the Hazardous Waste Lamps Rule for Virginia in a later final rule.

The Agency has determined that approval of Virginia's RCRA program revisions, with the exception of the Hazardous Waste Lamps Rule, should occur. EPA has made a final determination that Virginia's application to revise its authorized program, with the exception of the Hazardous Waste Lamps Rule, meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Virginia final authorization to operate its hazardous waste program with the changes described in its application for program revisions, with the exception of the Hazardous Waste Lamps Rule. Virginia 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 for program revisions, with the exception of the Hazardous Waste Lamps Rule, 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 promulgates 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 Virginia, 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 Virginia's RCRA program revisions, please refer to the preambles of EPA's March 13, 2003 proposed and immediate final rules to grant authorization to Virginia for its program revisions, at 68 FR 12015 and 68 FR 11981-11986, respectively.

This rule only authorizes hazardous waste requirements pursuant to RCRA 3006 and imposes no requirements other than those imposed by State law (see Supplementary Information, Section A. Why are Revisions to State Programs Necessary?). Therefore, this rule complies with applicable executive orders and statutory provisions as follows.

1. Executive Order 12866: Regulatory Planning Review —The Office of Management and Budget has exempted this rule from its review under Executive Order (EO) 12866.

2. Paperwork Reduction Act —This rule does not impose an information collection burden under the Paperwork Reduction Act.

3. Regulatory Flexibility Act —After considering the economic impacts of today's rule on small entities under the Regulatory Flexibility Act, I certify that this rule will not have a significant economic impact on a substantial number of small entities.

4. Unfunded Mandates Reform Act —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.

5. Executive Order 13132: Federalism —EO 13132 does not apply to this rule because it will not have federalism implications ( i.e. , 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).

6. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments —EO 13175 does not apply to this rule because it will not have tribal implications ( i.e. , substantial direct effects 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).

7. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks —This rule is not subject to EO 13045 because it is not economically significant and it is not based on health or safety risks.

8. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use —This rule is not subject to EO 13211 because it is not a significant regulatory action as defined in EO 12866.

9. National Technology Transfer Advancement Act —EPA approves State programs as long as they meet criteria required by RCRA, so it would be inconsistent with applicable law for EPA, in its review of a State program, to require the use of any particular voluntary consensus standard in place of another standard that meets the requirements of RCRA. Thus, section 12(d) of the National Technology Transfer and Advance Act does not apply to this rule.

10. Congressional Review Act —EPA will submit a report containing this rule and other information required by the Congressional Review Act (5 U.S.C. 801 et seq. ) 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 on June 20, 2003.

You may be potentially affected by this action if you manufacture, process, distribute in commerce, use, or dispose of PCBs or materials containing PCBs. Potentially affected entities may include, but are not limited to:

• Oil and Gas Extraction (NAICS 21111), e.g., Facilities with surfaces contaminated by PCBs

• Electric Power Generation, Transmission and Distribution (NAICS 2211), e.g., Facilities with surfaces contaminated by PCBs

• Construction (NAICS 23), e.g., Facilities with surfaces contaminated by PCBs

• Food Manufacturing (NAICS 311), e.g., Facilities with surfaces contaminated by PCBs

• Paper Manufacturing (NAICS 322), e.g., Facilities with surfaces contaminated by PCBs

• Petroleum and Coal Products Manufacturing (NAICS 324), e.g., Facilities with surfaces contaminated by PCBs

• Chemical Manufacturing (NAICS 325), e.g., Facilities with surfaces contaminated by PCBs

• Primary Metal Manufacturing (NAICS 331), e.g., Facilities with surfaces contaminated by PCBs

• Rail Transportation (NAICS 48211), e.g., Facilities with surfaces contaminated by PCBs

• Lessors of Real Estate (NAICS 5311), e.g., Facilities with surfaces contaminated by PCBs

• Waste Treatment and Disposal (NAICS 5622), e.g., Facilities with surfaces contaminated by PCBs

• Public Administration (NAICS 92), e.g., Facilities with surfaces contaminated by PCBs

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 40 CFR part 761. 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-2003-0029. 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 761 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr761_00.html , a beta site currently under development.

To access information about PCBs, go directly to the PCB Home Page for the Office of Pollution Prevention and Toxics at http://www.epa.gov/pcb .

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

EPA is amending the regulation at 40 CFR 761.30(p) that governs the continued use of porous surfaces contaminated by spills of liquid PCBs to reflect a decision from the Court in Utility Solid Waste Activities Group v. EPA , 236 F3d 749 (D.C. Cir. 2001).

The authority for issuing 40 CFR 761.30(p) was section 6(e)(2) of the Toxic Substances Control Act (TSCA), 15 U.S.C. 2605(e)(2). This amendment is issued pursuant to a decision of the Court.

Section 6(e) of TSCA, 15 U.S.C. 2605(e), specifically regulates PCBs. It bans the manufacture, processing, distribution in commerce, or use of PCBs in other than a “totally enclosed manner,” unless the activity is specifically authorized by EPA through rulemaking. In order to authorize any of these activities, EPA must make an affirmative finding that the activity does not pose an unreasonable risk of injury to health or the environment. Comprehensive regulations addressing the manufacture, processing, distribution in commerce, use, and disposal of PCBs were promulgated by EPA in 1979 and codified at 40 CFR part 761.

On December 6, 1994, EPA proposed extensive revisions to the PCB regulations. Some of the commenters on this proposal asked EPA to consider including an authorization for the use of porous surfaces that had been contaminated by old PCB spills. EPA considered the information submitted by the commenters and decided to include such a use authorization in the final amendments to the PCB regulations published in the Federal Register issue of June 29, 1998 (63 FR 35384) (FRL-5726-1) EPA determined that the continued use of porous surfaces cleaned, sealed, and marked in accordance with the requirements of 40 CFR 761.30(p) does not pose an unreasonable risk of harm to human health and the environment.

EPA had intended to apply the cleaning, sealing, and marking requirements in this new provision of the regulations to use of all porous surfaces that had been contaminated by spills of liquids containing PCBs at levels greater than or equal to 50 parts per million (ppm), regardless of the residual contamination level on the surface of the material. This is the standard EPA historically has used to trigger the regulation of PCB disposal. Unfortunately, due to an editing error, the 1998 version of 40 CFR 761.30(p) referred to a unit of measurement inapplicable to the concentration of PCBs in liquids. Instead of the 50 ppm standard for this use authorization, the 1998 final rule referred to “ > 10 μg/100 cm 2 .” Shortly after the 1998 final rule was published, EPA discovered this and several other errors. EPA posted a list of the errors and appropriate corrections on its Internet site and, on June 24, 1999, in the Federal Register (64 FR 33755) (FRL-6072-4), promulgated these corrections in a final rule without prior notice and comment.

The Utility Solid Waste Activities Group and others challenged the 1999 amendment to 40 CFR 761.30(p), arguing that EPA had failed to follow requisite procedures by issuing the amendment without notice and comment.

On January 30, 2001, the Court vacated the correction to 40 CFR 761.30(p). Utility Solid Waste Activities Group v. EPA , 236 F3d 749 (D.C. Cir., 2001) The Court determined that EPA was required to promulgate the correction through full notice and comment rulemaking procedures consistent with section 553 of the Administrative Procedures Act (APA) (5 U.S.C. 553).

Accordingly, EPA is issuing this document to revise the language of 40 CFR 761.30(p) to conform to the Court's decision. The regulation at 40 CFR 761.30(p) will now read as published in 1998. However, EPA continues to believe that the 1999 amendment of 40 CFR 761.30(p) is the appropriate approach for the continued use of porous surfaces contaminated by spills of liquid PCBs. The Agency intends to issue a proposal in the near future to amend 40 CFR 761.30(p).

This action amends 40 CFR part 761 to conform to a decision by the Court. Under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. In addition, this action does not impose any enforceable duty, contain any unfunded mandate, or impose any significant or unique impact on small governments as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This action does not involve special consideration of environmental justice-related issues 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). Because this action is not subject to notice and comment requirements under the APA or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq .). This action also is not subject to Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), because EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish any environmental standards intended to mitigate health or safety risks. This action does not involve technical standards and therefore is not subject to section 12(d) of the National Technology Transfer and Advancement Act of 1995, 15 U.S.C. 272 note. This final rule does not have federalism implications and, therefore, Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), does not apply. This action does not involve or impose any requirements that affect Indian Tribes, so the requirements of Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 62749, November 6, 2000), are not applicable. This final rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. Finally, this action is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq ., because it does not impose any monitoring, reporting, or recordkeeping requirements. EPA's compliance with the statutes and Executive orders for the underlying Disposal Amendments rule is discussed in the June 29, 1998, Federal Register (63 FR 35384).

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 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 conforms 40 CFR part 761 to a decision by the Court and is not a “major rule” as defined by 5 U.S.C. 804(2).

The Department of Health and Human Services (DHHS) regulates research involving human subjects conducted or supported by DHHS through regulations codified at 45 CFR part 46. Subpart C of 45 CFR part 46, entitled “Additional DHHS Protections Pertaining to Biomedical and Behavioral Research Involving Prisoners as Subjects,” provides additional regulatory protections to prisoners who are research subjects.

Subpart C sets forth specific requirements for any research involving prisoners as subjects that is conducted or supported by DHHS. Subpart C lists four categories of research involving prisoners as subjects that may be conducted or supported by DHHS. Sections 45 CER 46.305(a)(l) and 46 306(a)(2) require that the institutional review board (TRB) reviewing the research and the Secretary, respectively, determine that the research involving prisoners represent one of these four categories. The first three categories, §§ 46.306(a)(2)(i), (ii), and (iii), require that the research target either (i) the possible causes, effects, or processes of incarceration and of criminal behavior; (ii) the prison as an institution or prison life; or (iii) conditions particularly affecting prisoners as a class. The fourth category, § 46.306(a)(2)(iv), permits research on practices which have the intent and reasonable probability of improving the health or well-being of the prisoner-subject.

DHHS conducts or supports certain epidemiologic studies in which the purposes are as follows: (1) To describe the prevalence or incidence of a disease by identifying all cases, and (2) To study potential risk factor associations for a disease. For most such studies, the institutional review board (IRB) reviewing the study determines that the research at issue involves no more than minimal risk and no more than inconvenience to the subjects. The human participants in this type of public health research may include prisoners in the study population. State health agencies are most commonly the conduits for this type of research. Because certain epidemiologic studies conducted or supported by DHHS focus on a particular condition or disease that might affect prisoners as it would any other members of the general population, such studies do not meet any of the four categories of permissible research under subpart C, 45 CFR part 46.

Pursuant to 45 CFR 46.101(i), the Secretary of DHHS has the authority to waive the applicability of some or all of the provisions of the DHHS regulations for the protection of human subjects to specific research activities or classes of research activities otherwise covered by the regulations. In a document published in the Federal Register on October 7, 2002 (67 FR 62432), the Secretary of DHHS sought public comment on a proposed waiver of the applicability of certain requirements of subpart C, 45 CFR part 46, to allow DHHS to conduct or support certain important and necessary epidemiologic research on prisoners that presents no more than minimal risk and no more than inconvenience to the prisoner-subjects. The Secretary of DHHS specifically proposed waiving the applicability of 45 CFR 46.305(a)(l) and 46.306(a)(2) for certain research conducted or supported by DHHS that involves epidemiologic studies that meet the following criteria:

(1) In which the sole purposes are

(i) To describe the prevalence or incidence of a disease by identifying all cases, or

(ii) To study potential risk factor associations for a disease, and

(2) Where the institution responsible for the conduct of the research certifies to the Office for Human Research Protections, DHHS, acting on behalf of the Secretary, that the IRB approved the research and fulfilled its duties under 45 CFR 46.305(a)(2)-(7) and determined and documented that

(i) The research presents no more than minimal risk and no more than inconvenience to the prisoner-subjects, and

(ii) Prisoners are not a particular focus of the research.

The specific type of epidemiological research conducted or supported by DHHS and subject to the proposed waiver involves no more than minimal risk and no more than inconvenience to the human subject participants. The proposed waiver would allow DHHS to conduct or support a type of minimal risk research that does not now fall within the categories set out in 45 CFR 46.306(a)(2).

The range of studies to which the proposed waiver would apply includes epidemiological research related to chronic diseases, injuries, and environmental health. This type of research uses epidemiologic methods (such as interviews and collection of biologic specimens) that generally entail no more than minimal risk to the subjects.

An example of an epidemiological study that could be permitted under the proposed waiver is one in which all persons with HIV, but with none of the known risk factors for HIV, are asked to participate in a study involving an interview, review of medical records, and collection of a blood specimen. The purpose of the study is to determine other 5 potential risk factors for HIV. All states with mandatory HIV reporting laws report these cases to the Centers for Disease Control and Prevention (CDC), DHHS. Each person who meets the study definition would be asked to participate, and prisoners could well be members of the potential study group. In order for the study to be approved under this waiver, the IRB would need to ensure that, among other things, there are adequate provisions to protect the privacy of subjects and to maintain the confidentiality of the data.

The Secretary also proposed that a periodic review of the ways in which DHHS implements the proposed waiver would be conducted by OHRP to determine the adequacy of the waiver in meeting its intended need or if adjustments to the waiver might be necessary and appropriate.

During the public comment period that ended on November 6, 2002, DHHS received 14 comments on the proposed waiver from interested parties; 12 of which were supportive of the proposed waiver, one of which objected to the proposed waiver, and one of which commented on research on prisoners in general. The comments are summarized as follows:

DHHS proposed that the waiver of applicability of 45 CFR 46.305(a)(1) and 46.306(a)(2) would apply only to certain types of research. Four commenters suggested that this waiver be expanded to other types of research. Of these, one suggested that the waiver extend to other research that poses a minimal risk and inconvenience to prisoners, such as an interview for purposes of obtaining a prisoner's oral history; one urged DHHS to consider regulatory change to 45 CFR 46.306(a)(2) to allow the type of epidemiologic research covered under the proposed waiver to be an approvable category of research under Subpart C; one suggested that the proposed waiver apply to studies in which the risk of participation is not increased by being a prisoner, or where the study involves minimal risk to the subject over the risk already taken ( e.g. , as part of an ongoing epidemiologic or follow-up study); and one requested that the waiver be extended to minimal risk research focused on a particular disease or condition that could affect prisoners as it would anyone else in the population.

The Department finds that it is appropriate to apply the proposed waiver of applicability of 45 CFR 46.305(a)(1) and 46.306(a)(2) solely to public health research that focuses on a particular condition or disease in order to (1) describe its prevalence or incidence by identifying all cases, including prisoner cases, or (2) study potential risk factor associations, where the human subjects may include prisoners in the study population but not exclusively as a target group. The Department therefore declines to expand the scope of the waiver as proposed.

One commenter stated that the proposed waiver should not be approved because Subpart C already permits, under certain conditions, the types of epidemiological studies under consideration. The commenter asserts that if the objective of an epidemiological study is to describe the prevalence of certain diseases or conditions among prisoners—either alone or as compared to non-prisoners—then the research should be permitted under 45 CFR 46.306(a)(2)(B).

The Department notes that, because the proposed waiver applies to studies in which an IRB has found that prisoners are not a particular focus of the study, the research, in fact, would not be approvable under any of the current four categories of 45 CFR 46.306(a)(2):

(i) The causes, effects, or processes of incarceration and of criminal behavior; (ii) the prison as an institution or prison life; (iii) conditions particularly affecting prisoners as a class; or (iv) research on practices which have the intent and reasonable probability of improving the health or well-being of the prisoner-subject.

Two commenters questioned the certification requirement of the proposed waiver. One commenter stated that the separate certification called for in the proposed waiver is an unnecessary extra step and should be eliminated; and one commenter stated that it is unclear what additional protections will be afforded to subjects by the process of certification and how, other than in timing, will this certification be different than the current requirement.

The Department notes that the proposed waiver would not require certification separate from the certification which institutions now must make to the Secretary (through OHRP) affirming that the IRB approved the research and fulfilled its duties under 45 CFR 46.305(a)(2)-(7). However, the proposed waiver would require that such certification include the IRB's determination and documentation that the research presents no more than minimal risk and no more than inconvenience to the prisoner-subject, and that prisoners are not a particular focus of the research.

One commenter expressed the desire to be able to invoke the proposed waiver without the IRB needing a prisoner representative to participate in the review of the research. The Department finds that the requirements of the DHHS regulations at 45 CFR 46.304(b) must be satisfied for research that would be covered by the proposed waiver. The Department notes that if a particular research project is reviewed by more than one IRB, only one IRB needs to satisfy these requirements.

One commenter states that the proposed waiver should not be approved because it does not provide sufficient assurances about how the adequacy of the waiver or adjustments to the waiver will be periodically reviewed. The Department believes that the proposed waiver includes adequate assurances that OHRP will conduct periodic reviews to determine the adequacy of the waiver in meeting its intended need or if adjustments to the waiver are necessary and appropriate. The Department notes that OHRP will receive and review all certifications of research covered by the proposed waiver.

One commenter suggested that the DHHS regulations should permit prisoners to complete a study in which they were enrolled before being incarcerated. The Department finds that this comment is not relevant to the proposed waiver. The Department may consider this issue at a future time.

One commenter recommended that DHHS adopt a new rule or standard for informed consent when a prisoner is participating as a research subject and the consent occurred in the prison milieu. The Department finds that this comment is not directly relevant to the proposed waiver. The Department notes that because prisoner-subjects are afforded all of the protections of the informed consent requirements listed in § 46.116 of 45 CFR part 46, subpart A, the current standards for obtaining informed consent from prisoner-subjects are adequate.

One commenter found the example given of when the proposed waiver could be used to be incongruent with the requirement that the waiver only may apply to minimal risk research. The commenter asserted that a study of HIV is not minimal risk regarding a loss of confidentiality. The Department believes that the example given could entail no more than minimal risk for research involving prisoners as defined under 45 CFR 46.303(d): the probability and magnitude of physical or psychological harm that is normally encountered in the daily lives, or in the routine medical, dental, or psychological examination of healthy persons.

One commenter stated that a prisoner should not be required to be a “guinea pig” and that a prisoner should be enrolled in research only if the prisoner agrees to participate in writing. The Department notes that the commenter's objections are not specific to the proposed waiver. The Department further notes that under §§ 46.116 and 46.117 of subpart A of the DHHS regulations for the protection of human subjects, no investigator may involve a human being as a subject in research covered by the regulations unless the investigator has obtained and documented the informed consent of the subject in accordance with, and to the extent required by, the DHHS regulations.

One commenter states that the proposed waiver should not be approved because it represents a retreat from one of the most important values underlying Subpart C: the fair distribution of the burdens and benefits of research. The Department believes that the waiver as proposed supports the fair distribution of burdens and benefits of research permitting subjects, including some who are prisoners, to participate in certain DHHS-supported or conducted research in which the purposes are (1) to describe the prevalence or incidence of disease by identifying all cases; and (2) to study potential risk factors associations for a disease. Such studies would not be permitted without the waiver.

After considering the comments, DHHS is adopting the waiver as proposed. The waiver is effective June 20, 2003. All initial and ongoing projects reviewed by IRBs under DHHS-approved assurances after the effective date may be reviewed in accordance with this waiver.

This is a summary of the Commission's Second Report and Order in CC Docket No. 02-6, FCC 03-101 released on April 30, 2003. This Second Report and Order was also released with a companion Further Notice of Proposed Rulemaking FNPRM. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 Twelfth Street, SW., Washington, DC 20554.

1. In this Order, we take major steps to simplify and streamline the operation of our universal service mechanism for schools and libraries, while improving our oversight over the support mechanism. In section 254 of the 1996 Act, Congress directed the Commission to establish explicit universal service support mechanisms to ensure the delivery of affordable telecommunications service to all Americans, including low-income consumers, rural health care providers, and eligible schools and libraries. Pursuant to section 254, eligible schools, libraries, and consortia that include eligible schools and libraries, may receive discounts for eligible telecommunications services, Internet access, and internal connections. The Commission has issued several orders interpreting rules governing the operation of the schools and libraries universal service support mechanism.

2. Since the inception of the schools and libraries support mechanism in 1997, schools and libraries have received over $9.6 billion in funding commitments. This funding has provided millions of school children and library patrons access to modern telecommunications and information services. The Commission previously sought comment in a Notice of Proposed Rulemaking ( Schools and Libraries NPRM ), 67 FR 7327, February 19, 2002, on ways to streamline the operation of the schools and libraries support mechanism, in order to ensure that the benefits of this universal service support mechanism for schools and libraries are distributed in a manner that is fair and equitable and improve our oversight over this program to ensure that the goals of section 254 are met without waste, fraud, and abuse.

3. In response to the Schools and Libraries NPRM, the Commission received a tremendous outpouring of ideas and suggestions relating to the operation of the schools and libraries mechanism. In this Second Report and Order (Order), we adopt a number of rules to streamline program operation and promote the Commission's goal of reducing the likelihood of fraud, waste, and abuse. First, we modify certain rules regarding eligible services. In particular, we clarify the statutory term “educational purposes.” We clarify that our rules prohibit the funding of discounts for duplicative services. We also clarify our rules to ensure that wireless services are eligible to the same extent wireline services are eligible. We modify our rules to make voice mail eligible for discounts. Second, we direct the Universal Service Administrative Company (USAC or Administrator) to develop a pilot program testing an online list of internal connections equipment that is automatically eligible for discounts, provided the uses are eligible and all other funding requirements are satisfied. Third, we codify the “30 percent” policy, which is a processing benchmark currently used by the Administrator when reviewing requests that include both ineligible and eligible services.

4. With regard to post commitment program administration, we adopt a rule requiring service providers to give applicants the choice each funding year whether to pay the discounted price or pay the full price and then receive reimbursement through the Billed Entity Applicant Reimbursement (BEAR) process, and adopt a rule expressly requiring service providers to remit BEAR payments to the applicant within 20 days after receipt of such payments from the Administrator.

5. With regard to appeals, we permanently extend the time limit for filing an initial appeal with the Schools and Libraries Division (SLD) and the Commission from 30 to 60 days and conclude that all appeals should be treated as filed on the date that they are postmarked. We also conclude that all successful appeals should be funded to the extent that they would have been funded had the discounts been awarded through the normal funding process. We also make a minor procedural change to our rules relating to filing appeals in this docket.

6. As part of our ongoing efforts to limit waste, fraud, and abuse, we adopt rules to prevent bad actors from receiving benefits associated with the schools and libraries mechanism. In particular, we conclude that anyone convicted of a criminal violation or found civilly liable for actions relating to this program shall be debarred from participation for three years, absent extraordinary circumstances. Also, we decline at this time to adopt further measures to reduce unused funds, in light of our prior actions to streamline the program and increase the efficiency of fund use. We make conforming rule changes in accord with the No Child Left Behind Act of 2002, and we remove certain obsolete sections of our rules.

7. Educational Purpose. We find it appropriate to clarify the scope of the requirement that services be used for an educational purpose. Accordingly, we amend § 54.500 of our rules to clarify the meaning of educational purposes. Pursuant to this requirement, the Administrator has denied requests for services to be used by support staff not involved in instructional activities. We reiterate our recognition that the technology needs of participants in the schools and libraries program are complex and unique to each participant. We find that, in the case of schools, activities that are integral, immediate, and proximate to the education of students, or in the case of libraries, integral, immediate, and proximate to the provision of library services to library patrons, qualify as educational purposes under this program. To guide applicants in preparing their applications and to streamline the Administrator's review of applications, we further establish a presumption that activities that occur in a library or classroom or on library or school property are integral, immediate, and proximate to the education of students or the provision of library services to library patrons.

8. This clarification, however, is not intended to allow the general public to use services and facilities obtained through this support mechanism for non-educational purposes. In the Alaska Order, the Commission granted the State of Alaska a limited waiver of § 54.504(b)(2)(ii) of the Commission's rules, allowing members of rural remote communities in Alaska that lack local or toll-free dial-up access to the Internet to use excess service obtained through the support mechanism, when the services are not in use by the schools and libraries. The clarification we adopt today does not affect the terms of Alaska's waiver or allow schools or libraries outside the scope of that waiver to provide services to the general public in that manner.

9. Under this standard, reasonable requests for any supported service—over any technology platform—to be used by any school or library staff while in a library, classroom, or on school or library property, shall be eligible for discounts. Moreover, we conclude that in certain limited instances, the use of telecommunications services offsite would also be integral, immediate, and proximate to the education of students or the provision of library services to library patrons, and thus, would be considered to be an educational purpose. By adopting this standard, we provide to schools and libraries and the state and local authorities that govern them a more definitive interpretation of educational purposes, in order to assist them in pursuing their programmatic objectives.

10. We find that our clarification is consistent with statutory mandates that the purpose for which support is provided be for educational purposes in a place of instruction. Moreover, this clarification benefits applicants because it simplifies the application process by making the approval of discounted services more predictable, without sacrificing flexibility, thus furthering our streamlining goals. Because of the difficulties inherent in implementing changes in eligibility in the middle of a funding cycle, services will be available under this clarification beginning with the start of the next funding year (Funding Year 2004), on July 1, 2004.

11. We believe that this interpretation of educational purpose should not result in an increase in waste, fraud, or abuse. First, as the presumption set forth demonstrates, discounts will only be awarded to support activities that have a defined nexus to education, or, in the case of libraries, to the delivery of library services to library patrons. Thus, for instance, using a school's or a library's discounted telecommunications services to support a private enterprise or a political campaign will continue to be a violation of the Act and our rules. In addition, because our rules require schools and libraries to pay a percentage of the cost of services, schools and libraries are unlikely to request services that are not economical. This is particularly true in an environment where many institutions face shrinking budgets. We therefore conclude this clarification of educational purpose should increase program efficiency without leading to waste, fraud, or abuse.

12. Funding of Duplicative Services. In the Universal Service Order, 62 FR 32862, June 17, 1997, the Commission indicated that an applicant's request for discounts should be based on the reasonable needs and resources of the applicant, and bids for services should be evaluated based on cost-effectiveness. Pursuant to this requirement, the Administrator has denied discounts for duplicative services. Duplicative services are services that deliver the same functionality to the same population in the same location during the same period of time. We emphasize that requests for discounts for duplicative services will be rejected on the basis that such applications cannot demonstrate, as required by our rules, that that they are reasonable or cost effective.

13. We find that the use of discounts to fund duplicative services contravenes the requirement that discounts be awarded to meet the “reasonable needs and resources” of applicants. We find that requests for discounts for duplicative services are unreasonable because they impact the fair distribution of discounts to schools and libraries. The schools and libraries mechanism of the universal service fund is capped at $2.25 billion dollars. Under our rules, when total demand exceeds the cap, discounts for Priority Two services (internal connections) are awarded after all Priority One requests are satisfied, beginning with the most economically disadvantaged schools and libraries as determined by the schools and libraries discount matrix. Total demand for discounts from the schools and libraries program has exceeded the funding cap in the past two funding years and we expect this trend to continue. Thus, funding duplicative services would operate to award discounts to applicants higher on the matrix twice for the same services, while some others, because of their lower rank on the matrix, could not receive discounts for the same service because the Priority Two funds available under the cap had had been exhausted.

14. In addition, we find that it is inconsistent with the Commission's rules to deliver services that provide the same functionality for the same population in the same location during the same period of time. We believe that requests for duplicative services are not consistent with the Commission's rules regarding competitive bidding, which require applicants to evaluate whether bids are cost effective. In the Universal Service Order, the Commission stated that price is the primary of several factors to be considered. Thus, applicants must evaluate these factors to determine whether an offering is cost effective. We find that it is not cost effective for applicants to seek discounts to fund the delivery of duplicative services. Therefore, we conclude that this rule can be violated by the delivery of services that provide the same functionality for the same population in the same location during the same period of time. We recognize that determining whether particular services are functionally equivalent may depend on the particular circumstances presented. In addition, we amend § 54.511(a) of our rules to make clear that applicants must consider whether the service is cost effective.

15. Eligibility of Wireless Services. Under section 254(h)(1)(B), eligible schools, libraries, and consortia that include eligible schools and libraries, are eligible for discounts on telecommunications services. Accordingly, basic telephone service, which includes mobile and fixed wireless service, is eligible for discounts pursuant to the schools and libraries universal service support mechanism. The cost of telephones or associated maintenance of equipment is not eligible for discount. In the Schools and Libraries NPRM, we sought comment on whether we needed to modify any rules and policies regarding the eligibility of wireless services. We also sought comment on whether broadening the eligibility of wireless services under the schools and libraries universal service support mechanism, consistent with the statute, would improve the application review process.

16. We reiterate that wireline and wireless telecommunications services are equally eligible under our current rules. If wireless service is used at the school or library for educational purposes, that service is eligible for support to the same extent as requests for wireline-based telecommunications services. We emphasize that, under existing rules, requests for wireline and wireless services must be reviewed under the same standard. It would be inappropriate, for instance, to presume that wireline services are used for educational purposes while presuming that wireless services are not used for similar purposes. What is relevant, for purposes of determining compliance with the statutory standard, is whether the service in question is integral, immediate, and proximate to the provision of education or library services, regardless of the technology platform. As we stated, we presume that activities that occur in a library or classroom or on library or school property, are integral, immediate, and proximate to education of students, or, in the case of libraries, to the provision of library services to library providers, and therefore qualify as educational purposes.

17. We believe that this restatement of technology neutrality, in tandem with our clarification of educational purposes set forth, will serve to reduce confusion and uncertainty regarding the eligibility of wireless services and thus further our streamlining efforts by making the application process more predictable for applicants.

18. Eligibility of Voice Mail. In the Universal Service Order, the Commission decided that certain information services—namely Internet access—would be funded. The Commission also determined, without further discussion, that voice mail would not “at [that] time” be eligible, based, in part, on the recommendation of the Federal-State Joint Board on Universal Service that such information services not be eligible. Specifically, the Joint Board had recommended that, “by establishing a discount mechanism for telecommunications and Internet access, we conclude that the intent of Congress will be met and it is not necessary to support the full panoply of information services at this time.” We now think it appropriate to revisit this issue, in light of our experience over the last five years.

19. The prevalence of and need for voice mail as a way of communicating with school and library staff for educational purposes causes us to reexamine the eligibility of voice mail. Virtually all commenters supported making voice mail an eligible service, including the state members of the Federal-State Joint Board on Universal Service. After reviewing the record on this issue, we conclude that voice mail should be eligible for discounts as a Priority One service under the universal service support mechanism in the same way that Internet access, i.e. , e-mail, is currently eligible. Voice mail services are used in conjunction with telecommunications services. We agree with commenters that voice mail is functionally equivalent to e-mail. Therefore, we believe that it is administratively and operationally appropriate for such requests to be processed within the same priority as telecommunications services and Internet access. After five years of experience with the schools and libraries universal service support mechanism, we find that making voice mail now eligible for discount is consistent with Congress's intent “to enhance * * * access to advanced telecommunications and information services” for schools and libraries. Indeed, voice mail is an integral part of communications, especially in schools. We conclude that voice mail enhances access to information services for schools and libraries by allowing meaningful communication among parents, teachers, and school and library administrators.

20. Moreover, making voice mail eligible will reduce administrative costs, because neither applicants nor USAC will need to go through the exercise of breaking out the cost of voice mail from a bundled price for telecommunications service. We believe this modification will further our goals of improving program operation, without increasing opportunities for waste, fraud, and abuse. Accordingly, we deem voice mail to be eligible for discounts under the schools and libraries universal service support mechanism and amend §§ 54.503, 54.507, and 54.517 of our rules. We instruct USAC to process funding requests for voice mail services starting in Funding Year 2004 consistent with this Order.

21. Computerized Eligible Service List. We conclude that it would be beneficial to develop a process that would simplify applicants' selection of eligible services. The Commission currently directs the Administrator to determine whether particular services fall within the eligibility criteria established under the 1996 Act and the Commission's rules and policies. The Administrator evaluates, in consultation with the Commission on an ongoing basis, particular services and products offered by service providers, and determines their eligibility. In order to provide applicants with general guidance, the Administrator makes available on its website a list of categories of service that are conditionally eligible or ineligible, although it does not identify specific eligible brands or items. Applicants or service providers may appeal the Administrator's decision that a given service is ineligible for discounts only after a requested discount for that service is denied.

22. In the Schools and Libraries NPRM, we specifically sought comment on whether to establish an online computerized list of actual products and services, whereby applicants could select a specific product or service as part of their FCC Form 471 application. We suggested that under such a proposal, the number of instances in which applicants seek funding for ineligible services might decrease. We also suggested that such a process would considerably simplify the application review process. We sought comment on the desirability and feasibility of this approach. Specifically, we sought comment on how often such a list should be updated; how to ensure that such a list would not inadvertently limit access to products and services newly introduced to the marketplace; and how to obtain input on an ongoing basis regarding what specific products and services should be eligible.

23. After reviewing the record, we conclude that there is merit to creating an online computerized list system for internal connections. We decline, however, to mandate a similar computerized list system at this time for telecommunications services and Internet access.

24. In general, we agree with commenters that such a list would aid applicants to more clearly understand which items have already been approved by USAC as eligible. Use of such a list should facilitate expedited processing of many funding requests, decrease rejection of requests for ineligibility, and decrease the chances that any ineligible request would be accidentally awarded discounts. The use of this list by applicants, therefore, should reduce the burden on applicants in completing their applications. In addition, use of such a list would streamline review by the Administrator, allowing it to focus on more complex matters arising in the application process. Finally, by helping to avoid support of ineligible services, an online computerized list would further the Commission's goal of preventing fraud and abuse.

25. At the same time, we are persuaded by the Administrator's concerns and those of certain commenters that such a list should be developed with care. For example, the list should be careful not to favor certain vendors over others. Thus, we conclude that the development of such a list should proceed in stages. The Administrator should first test the use of such a list on a limited portion of the eligible services and products list. Therefore, we direct USAC, in conjunction with the Wireline Competition Bureau (Bureau), to develop and test as a pilot program an online list for internal connections equipment. We believe that such a pilot program would assist in further developing a record regarding how such a list could, in practice, provide clearer guidance about the potential eligibility of telecommunications and Internet access services than the current website posting.

26. We direct the Administrator to design a pilot program in consultation with the Bureau that is in keeping with the following principles: (1) the pilot system should continue to allow flexibility of choice of products by applicants; (2) this list should operate as a safe harbor, rather than a complete list of all eligible items; (3) all equipment and services listed will be automatically eligible for discounts provided the use is eligible and other funding requirements are satisfied; (4) there should be a procedure to have new products added to the list; (5) applicants and service providers may use the existing appeals procedures to appeal decisions by the Administrator rejecting the addition of specific items on the list; (6) applicants may also seek support for internal connections equipment that is not on this list; (7) such requests will be evaluated consistent with the Administrator's existing practice of ensuring that the equipment and proposed use are consistent with educational purposes.

27. We expect that the Administrator will be able to implement the pilot program no later than Funding Year 2005. The Administrator will timely report to the Commission about the effectiveness of the program during and after successful implementation. USAC's report should include information that details the effect of the list on the administrative review process, including the cost, and the number of applicants making use of such a list. We will evaluate this data and take it into consideration when evaluating whether and how to proceed to make this list accessible from the online FCC Form 471, and whether and how to incorporate telecommunications and Internet access services into such a list. In addition, in the accompanying FNPRM we seek further comment on the feasibility of an online eligible services brand name list for telecommunications services and Internet access.

28. Discussion We conclude that the 30 percent policy should be codified in the Commission's rules. We find that the procedure improves program operation and is important in reducing the administrative costs of the program because it enables SLD to efficiently process requests for support for services that are eligible for discounts but that also include some ineligible components. We further find that the 30 percent policy provides an appropriate incentive to applicants to seek discounts for only eligible products and services. We find that the 30 percent policy provides an adequate safe harbor for applicants that inadvertently request ineligible products or services, and appropriately balances applicant accountability with effective administrative review. The 30 percent policy allows the Administrator to process efficiently requests for funding that contain only a small amount of ineligible services without expending significant fund resources working with applicants to determine what part of the discounts requested is associated with eligible services. It also provides an incentive to applicants to eliminate ineligible services from their requests before submitting their applications, further reducing the Administrator's administrative costs. Accordingly, we add § 54.504(c)(1) to our rules as provided.

29. We decline to adopt one suggestion that would require SLD to inform an applicant that its application is about to be rejected under the 30 percent procedure and allow that applicant to provide evidence to refute SLD's determination. Applicants bear the burden of ensuring that the items requested are eligible for support under the program rules. Implementation of such a proposal would result in greater administrative costs and burden, thereby defeating the primary purpose of this policy. Moreover, the applicant still has an opportunity to refute SLD's determination by availing itself of the appeals process.

30. Discussion We first conclude that we should adopt a rule requiring service providers to give applicants the choice each funding year either to pay the discounted price or to pay the full price and then receive reimbursement through the BEAR process. In addition, we find that the period for remittance of the BEAR payment should be 20 days. Accordingly, we amend § 54.514 of our rules as set forth.

31. Some commenters argued that the choice of payment method should ultimately be made by the service provider, asserting that a mandate requiring all providers to adopt billing systems capable of handling both payment methods would impose significant financial and administrative burdens, particularly on small providers. However, the vast majority of commenters that responded to the Schools and Libraries NPRM supported the Commission's proposal. Numerous commenters noted instances of services providers requiring applicants to use the BEAR method.

32. We find that providing applicants with the right to choose payment method is consistent with section 254. Although section 254(h)(1)(B) requires that telecommunications carriers providing discounted service be permitted to choose the method by which they receive reimbursement for the discounts that they provide to schools and libraries, i.e., between receiving either a reimbursement for the discount or an off-set against their obligations to contribute to the universal service fund, the statute does not require that they be permitted to choose the method by which they provide those discounts to the school or library in the first place.

33. In addition, we find that providing applicants with the right to choose which payment method to use will help to ensure that all schools and libraries have affordable access to telecommunications and Internet access services. The Commission previously noted in the Universal Service Order that “requiring schools and libraries to pay in full could create serious cash flow problems for many schools and libraries and would disproportionately affect the most disadvantaged schools and libraries.” The comments in the present record have confirmed that many applicants cannot afford to make the upfront payments that the BEAR method requires. In light of the record before us, we conclude that the potential harm to schools and libraries from being required to make full payment upfront, if they are not prepared to, justifies giving applicants the choice of payment method.

34. As with any agreement, one way that applicants could memorialize the particular payment method chosen would be to place the agreement in the service agreement, or, where there is no written service contract, in a separate agreement. Although applicants are not required to take such action, it has been suggested that doing so would decrease the number of customer complaints and strengthen the Administrator's ability to take action for compliance failures.

35. Once an applicant has made and memorialized its choice for a funding year, the applicant may not unilaterally shift from one form of payment to the other within that funding year. Commenters argued that, in cases where the service begins before the Administrator makes its funding decision, applicants should be able to make discounted payments and then shift to BEAR payments after the funding decision is issued. We find that the administrative costs of such a procedure exceed the limited benefits to the applicant. Furthermore, service providers are under no obligation to provide discounts or reimbursements until a funding decision is approved, and we therefore find that it would be inappropriate to require providers to offer discounted service before any funding decision is made to authorize such discounts.

36. In response to service providers that argue that such a change will result in significant administrative costs to them, we reiterate that it is consistent with section 254 to provide applicants with the right to choose their payment method. Nevertheless, we anticipate that applicants and service providers will be able to work together in order to determine which payment method is most suitable. For example, a small carrier may enter into an agreement with a school district to provide telecommunications services. Under this contract, the payments could change from month to month based on usage. If the costs of instituting a new billing system to account for the changing levels of discounted service are significant, and the service provider is going to pass on the costs of such a system to the school district, the parties may find it more appropriate to negotiate a set discounted amount to be billed each month, with a true-up bill at the end of the contract. In recognition, however, of potential changes to billing systems that some providers may need to undertake in order to allow any applicant to elect the BEAR process, this rule change concerning election of payment type will be effective for the start of Funding Year 2004.

37. We also conclude that we should adopt a rule expressly requiring service providers to remit BEAR payments to the applicant within 20 days after receipt of such payments from the Administrator. BEAR payments are reimbursements for services that have already been provided to and paid for by a school or library. The structure of the schools and libraries support mechanism necessitates that reimbursement must flow to the applicant through the services provider. BEAR payments are not the property of the service provider, which has been paid in full. The Administrator has received many complaints about service providers failing to remit the BEAR payments in a timely fashion or, in some cases, at all. According to the Administrator, formalizing the remittance requirement in a rule would strengthen its ability to ensure compliance. The majority of commenters found that 20 days is an appropriate period for remittance. We therefore adopt a rule requiring a provider who receives a BEAR check from the Administrator to remit payment to the applicant within 20 days of receipt. Because providers are already required to remit BEAR payments within a limited timeframe, and thus should not need to implement major billing system changes, this rule change, like other rule changes unless otherwise noted, will be effective upon publication in the Federal Register .

38. Deadline Extension In the first four funding years of the school and libraries universal service support mechanism, twenty-two percent of all appeals to the Commission were dismissed as being untimely filed. In addition, the Administrator states that eighteen percent of all appeals filed with the Administrator for Funding Year 2001 were dismissed as being outside of the 30-day period. In light of this information, we sought comment on how to modify the current appeals procedures.

39. We agree with commenters that it is appropriate to increase the time limit for filing initial appeals with the Administrator and with the Commission to 60 days. Unlike many parties that typically practice before the Commission, many applicants in this program have no experience with regulatory filing processes. Thus the 30-day time period is often not adequate to allow potential petitioners to gather the documents and synthesize the arguments needed to file pleadings in order to challenge funding decisions. Commenters suggest that extending the filing period meets the goals of improving program operations and ensuring equitable distribution of benefits. Commenters suggest that given schools' and libraries' unique resource limitations, the extension of time for filing appeals will also provide applicants an opportunity to review the relevant decision and determine whether there are valid bases for appeal. We conclude that the time limit for filing an initial appeal with the Administrator and with the Commission should be extended to 60 days. We therefore amend § 54.720(a) through (d) of our rules.

40. Postmark. We also agree with commenters that we should treat appeals to the Administrator or the Commission has having been received on the date that they are postmarked rather than the date they are filed. Commenters note that this change would be consistent with other program filing deadlines. For example, such a change would make the appeal procedure consistent with the Administrator's practice of treating FCC Form 471 applications as having been filed as of the postmark date. In cases where a postmark is unclear or illegible, the Commission will require the applicant to submit a sworn affidavit stating the date that the appeal was mailed. Given this possibility, we continue to encourage parties to file appeals electronically, in order to ensure timely submission. In addition, we agree with commenters that using the postmarked date furthers the goals of improving program operation and ensuring a fair and equitable distribution of the benefits of the program. Thus, we find that it is consistent with public interest that we treat appeals to the Administrator or the Commission as having been filed on the date they are postmarked. We therefore add a new § 54.720(e) to our rules.

41. Docket Number Change. We adopt a minor procedural amendment conforming our rules to reflect the change in docket numbers for filing appeals. Specifically, we change the wording of § 54.721, which describes the filing requirements for requests for reviews for the entire Universal Service program, to replace the last line of paragraph (a) as follows: instead of stating “and shall reference FCC Docket Nos. 97-21 and 96-45,” the line shall read “and shall reference the applicable docket numbers.” The docket number for schools and libraries appeals is CC Docket No. 02-6, and the docket number for Rural Health Care support mechanism appeals is WC Docket No. 02-60. Petitioners should reference these docket numbers when filing pleadings with the FCC.

42. Discussion Based on the record, we conclude that all successful appeals should be awarded discounts to the extent they would have been had the discounts been awarded through the normal funding process. We further conclude that the Administrator should not wait to grant post-appeal funding until all appeals have been decided, but should instead fund applications if and when they are granted. We further find it appropriate to adopt a rule that authorizes using funds budgeted for future funding years, if the Administrator-set appeals reserve is inadequate to award discounts to all successful appeals. We recognize that utilizing such funds will reduce the total amount of funding available in subsequent funding years. However, we believe that this result is necessary in order to assure that no applicants are prejudiced because they were awarded discounts through the appeal process rather than through the initial application process.

43. The few commenters that addressed the use of funding from future years were mixed in their assessment. In particular, we disagree with commenters such as the Council of Chief State School Officers, who state that using funding budgeted for future years would penalize applicants in the next funding year. We conclude that the inequity of failing to award discounts for a timely appeal far outweighs the impact granting such appeals would have in reducing the overall available funding in future funding years. Indeed, any modest reduction in the total amount of funds budgeted for future funding years is equally distributed among all successful applicants. In contrast, the alternative imposes any shortfall on an individual applicant, who, after successfully appealing, has done nothing to merit the denial of funding. In balancing these outcomes, we conclude the more equitable solution is to spread the impact by using funds budgeted for future funding years, should the appeal reserve be exhausted. Consequently, we adopt a rule that authorizes USAC to use funds budgeted from subsequent funding years to fund discounts for successful appeals in the unlikely case that the appeals reserve is exhausted.

44. Discussion. We agree with the majority of commenters that we should adopt rules to prevent bad actors from receiving the benefits associated with the schools and libraries support mechanism. By prohibiting bad actors from involvement with the schools and libraries support mechanism, we will deter waste, fraud, and abuse, thus helping to ensure that support is used for schools' and libraries' access to advanced telecommunications and information services consistent with section 254. It is not our intention to use this debarment to punish. Rather, debarring applicants, service providers, consultants, or others that have defrauded the government or engaged in similar acts through activities associated with or related to the schools and libraries support mechanism is necessary to protect the integrity of the program. We conclude that these debarment procedures are prudent and consistent with our goal of ensuring that the universal service support mechanisms operate without waste, fraud, or abuse.

45. We conclude that persons convicted of criminal violations or held civilly liable for certain acts arising from their participation in the schools and libraries support mechanism shall be debarred from activities associated with or related to the schools and libraries support mechanism for a specified period, absent extraordinary circumstances. The debarment rules we adopt are informed by the nonprocurement debarment regulations for federal agencies, which do not apply to independent agencies such as the Commission. Specifically, we find that persons convicted of, or held civilly liable for, the attempt or commission of criminal fraud, theft, embezzlement, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, making false claims, obstruction of justice, or other fraud or criminal offense arising out of activities associated with or related to the schools and libraries universal service support mechanism shall be debarred from involvement with the schools and libraries support mechanism for a period of three years. Where circumstances warrant, a longer period of debarment may be imposed if the extension is necessary to protect the public interest. In the case of multiple convictions or judgments, the Commission shall determine based on the facts before it whether debarments shall run concurrently or consecutively.

46. A person subject to debarment, or a person that has contracted or intends to contract with a person subject to debarment to provide or receive services in connection with the schools and libraries support mechanism, may file arguments in writing and supported by documentation in opposition to the proposed debarment action or supporting a reduction in the period or scope of debarment. The Commission shall consider any such request, and may, upon the filing of arguments against the proposed suspension or debarment by an interested party or on its own motion, grant such a request for extraordinary circumstances. For example, reversal of the conviction or civil judgment upon which the debarment was based shall constitute extraordinary circumstances.

47. In light of the serious nature of a conviction or civil judgment relating to participation in the support mechanism, upon becoming aware of a person's criminal conviction or civil judgment under the specified circumstances, the Commission shall suspend the person from activities associated with or related to the schools and libraries support mechanism. Suspension is an immediate but temporary measure pending a final determination of debarment. Suspension will help to ensure that a person that has been convicted or held civilly liable for behavior with respect to the schools and libraries support mechanism cannot continue to benefit from the mechanism pending resolution of the debarment process. The Commission shall send notice to the person's last known address by certified mail, return receipt requested, and shall publish notice in the Federal Register . Suspension is effective immediately upon the earlier of the person's receipt of such notice or publication in the Federal Register .

48. The notice of suspension shall include notice of debarment proceedings. Such notice shall (1) give the reasons for the proposed debarment in terms sufficient to put the person on notice of the conduct or transaction(s) upon which it is based and the cause relied upon, namely, the entry of a criminal conviction or civil judgment; (2) explain the applicable debarment procedures; (3) describe the potential effect of debarment. A person subject to debarment or a person that has contracted or intends to contract with a person subject to debarment to provide or receive services in connection with the schools and libraries support mechanism, that elects to file arguments in opposition to the suspension and proposed debarment, must do so with any relevant documentation within 30 days after receiving notice or publication in the Federal Register , whichever is earlier. Any suspended person or person who has contracted or intends to contract with a suspended person also may request, in writing and supported by documentation, reversal of the suspension action or a reduction in the period or scope of suspension. The Commission shall consider such a request, but such action will not ordinarily be granted. Within 90 days of receipt of any such request, the Commission, in the absence of extraordinary circumstances, shall provide the person prompt notice of the decision to debar, and shall publish the decision in the Federal Register . Debarment shall be effective upon the earlier of receipt of notification or publication in the Federal Register .

49. Consistent with the federal agency regulations, we define “person” as “[a]ny individual, corporation, partnership, association, unit of government or legal entity, however organized.” Under this definition, persons may include applicants, service providers, consultants, or others engaged in activities associated with or related to the support mechanism.

50. Consistent with the federal agency regulations, suspension or debarment of a corporation, partnership, association, unit of government or legal entity, however organized, defined as a “person” under these regulations, constitutes suspension or debarment of all its divisions and other organizational elements from all activities associated with or related to the schools and libraries support mechanism for the debarment period, unless the suspension or debarment decision is limited by its terms to one or more specifically identified individuals, divisions, or other organizational elements or to specific types of transactions.

51. Consistent with the federal agency regulations, we define “conviction” as “a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, including a plea of nolo contendere” and “civil liability” or “civilly liable” as “the disposition of a civil action by any court of competent jurisdiction, whether entered by verdict, decision, settlement with admission of liability, stipulation, or otherwise creating a civil liability for the wrongful acts complained of, or a final determination of liability under the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).” We further conclude that, for purposes of these rules, “activities associated with or related to the schools and libraries support mechanism” include the receipt of funds or discounted services through the schools and libraries support mechanism, or consulting with, assisting, or advising applicants or service providers regarding the schools and libraries support mechanism.

52. A conviction or civil judgment in the specified circumstances therefore automatically results in suspension and the initiation of debarment proceedings, providing a clear and stringent response on the part of the Commission and serving to deter waste, fraud, and abuse in the program. Although the governmentwide rules provide that agencies “may” debar or suspend persons convicted or held civilly liable, we conclude that a rule requiring the Commission to suspend and debar such persons absent extraordinary circumstances will better serve the Commission's goal of limiting waste, fraud, and abuse. In light of our statutory obligation to preserve and advance universal service, we believe it appropriate to set a very high threshold for parties seeking to persuade us that debarment is not warranted in circumstances where a court of competent jurisdiction has concluded that person has committed some form of fraud related to the schools and libraries program. We conclude that under our rules the Commission shall debar persons convicted or held civilly liable after immediate suspension, absent extraordinary circumstances. These automatic actions in the clear circumstances where legal proceedings have concluded with due process are an appropriate and prudent means of maintaining the integrity of the schools and libraries support mechanism.

53. We recognize that where a service provider is debarred, an applicant relying on that service provider for discounted services may need to change service providers for that funding year in order to continue to receive the benefits of the support mechanism. Under existing USAC procedures, after an application has been approved and before the last day for invoicing, an applicant may change its service provider. Consistent with these procedures, therefore, applicants whose service providers have been debarred after an application has been approved may change service providers for that funding year.

54. The Enforcement Bureau shall undertake suspension and debarment proceedings under this section. The Wireline Competition Bureau shall make any necessary changes to FCC forms, including a notification that a person convicted of or held civilly liable for the conduct specified shall be suspended and debarred absent extraordinary circumstances. We also direct the Wireline Competition Bureau to oversee the implementation and coordination of debarment procedures and policies with the Administrator, including, but not limited to, the publication and maintenance of a list on the Administrator's web site of persons suspended or debarred from the program. We direct the Wireline Competition Bureau to ensure that the Administrator implements procedures to ensure that any person who has been suspended or debarred not benefit from the schools and libraries support mechanism for the specified period of time.

55. These rules constitute an important step in continuing to ensure program integrity. We are committed to considering other deliberate and appropriate measures in order to provide for compliance with statutory requirements and our rules, thereby ensuring that the benefits of this universal service support mechanism are available to the largest number of schools and libraries on an equitable basis. In the companion FNPRM, we seek further comment on whether to debar persons in other circumstances and related issues.

56. Discussion. We decline, at this time, to adopt additional measures to reduce unused funds. The First Order, 67 FR 41862, June 20, 2002, adopted a framework for the treatment of unused funds from the schools and libraries universal service support mechanism. In that Order, we determined that it was in the public interest to take immediate action to stabilize the contribution factor, and that beginning no later than the second quarter of 2003, any unused funds from the schools and libraries support mechanism shall, consistent with the public interest, be carried forward for disbursement in subsequent funding years of the schools and libraries support mechanism.

57. As noted, the Administrator has taken certain measures that will also address the issue of unused funds from the schools and libraries program. We find that these changes will help improve the disbursement of program funds. In addition, we continue to explore procedural and programmatic changes to the schools and libraries support mechanism that may help reduce the amount of funds that are not disbursed. We find that such actions will help us to most effectively implement the goals of section 254 of the Act.

58. Commenters noted that during the application process, applicants have difficulty predicting needs, usage, and non-contracted rates. Therefore, applicants may apply for more funding than is actually needed. Commenters also cited certain factors beyond the program's control that contribute to unclaimed funds. Indeed, the Administrator and the Commission are aware of these issues. In an effort to reduce the amount of unused funds, starting with Funding Year 2001, the Administrator is issuing funding commitments slightly in excess of the $2.25 billion funding cap. The Administrator reports that as of October 28, 2002, it had committed approximately $2.257 billion for Funding Year 2001. Specifically, the Administrator is basing overcommitments on past levels of unused funds, allowing a margin for error.

59. Commenters also state that some committed funds go unused because of late funding commitment decisions. We agree with commenters that receiving funding commitment decisions earlier in the process would help reduce the amount of unused funds. The Administrator has continued to improve its processing. An increasing percentage of applicants now receive funding decisions earlier in the funding cycle. In addition, the Administrator has created a new website where the public, applicants and providers, can view funding commitment data the day after it is released, rather than having to wait for the delivery of funding letters. We believe that each of these changes will help prevent the likelihood of waste by improving the disbursement of program funds.

60. In addition, several commenters noted that there is no incentive for applicants to turn committed funds back to USAC when an applicant realizes that it will not use the full committed amount. Some commenters also stated that the Form 500, which applicants may use to notify the Administrator that committed funds are no longer required, is an ineffective tool for commitment cancellation. The form is still a relatively new addition to the program. At this time, we do not believe that it is appropriate or necessary to change the Form 500. As with all aspects of the program, should the Administrator have recommendations about how to improve the Form 500 or related processes, the Administrator will bring these issues to our attention. We trust that as applicants become more familiar with the form and are better able to judge their funding supply through data newly provided on the Administrator's website, applicants will inform the Administrator when they will not fully use committed funds.

61. Discussion. We adopt minor changes to our rules to conform our definitions of eligible schools to the current definitions of and citations for “elementary school” and “secondary school” following the passage of the No Child Left Behind Act. First, we amend the definition of elementary school at § 54.500(b) by adding, after “residential school,” the phrase “including a public elementary charter school,” and the definition of secondary school at § 54.500(j) by adding, after “residential school,” the phrase “including a public secondary charter school.”

62. In so doing, we are not expanding the scope of either definition because public elementary and secondary charter schools were already eligible under the original definitions. Under these definitions, the Commission looked to applicable State law to determine which entities qualified as public elementary and secondary schools. Thus, where applicable State laws provided for public elementary and secondary charter schools, such schools were eligible for discounts under the old definition. The regulatory change merely makes this eligibility explicit.

63. Second, we amend § 54.501(b)(1) of our rules, to reflect the new citations for the elementary school and secondary school definitions following the passage of the No Child Left Behind Act. Specifically, we replace the citations to 20 U.S.C. 8801(14) and 8801(25) with citations to 20 U.S.C. 7801(18) and 7801(38), respectively. Because the new provisions are substantively the same as the original definitions, we conclude that all of these rule changes are minor and technical, and we therefore find good cause to conclude that notice and comment procedures of the Administrative Procedure Act (APA) are unnecessary.

64. The Biennial Regulatory Review 2000 Staff Report (Staff Report) recommended that §§ 54.701(b) through (e) of our rules, which mandate the merger of the Schools and Libraries Corporation and the Rural Health Care Corporation into the Universal Service Administrative Company, be removed. Given that the merger has been completed, the Staff Report concluded that these transitional provisions were no longer applicable. We now adopt the recommendations of the Staff Report and remove §§ 54.701(b) through (e), and renumber current provisions §§ 54.701(f) through (h) as §§ 54.701(b) through (d). Again, because the rule sections in question are now obsolete, we conclude that these rule changes are minor and technical, and we therefore find good cause to conclude that notice and comment under the APA is not necessary.

65. The action contained herein has been analyzed with respect to the Paperwork Reduction Act of 1995 (PRA) and found to impose new or modified reporting and/or recordkeeping requirements or burdens on the public. Implementation of these new or modified reporting and/or recordkeeping requirements will be subject to approval by the Office of Management and Budget (OMB) as prescribed by the PRA. Section 54.514(b) contains information collection requirements that have not been approved by the Office of Management Budget (OMB). The Commission will publish a document in the Federal Register announcing the effective date of that section. Sections 54.500(k), 54.503, 54.507(g)(i-ii), 54.517(b), and 54.514(a) will go into effect July 1, 2004, following OMB approval.

66. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Schools and Libraries NPRM. The Commission sought written public comment on the proposals in the Schools and Libraries NPRM, including comment on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

67. In this Order, the Commission adopted a number of rules to streamline program operation, and promote the Commission's goal of reducing the likelihood of fraud, waste, and abuse. We clarify the statutory term “educational purpose,” the prohibition of funding of discounts for duplicative services, and that wireless services are eligible to the same extent wireline services are eligible. We conclude that voice mail should be eligible for discounts under the schools and libraries universal service support mechanism. We direct USAC to develop a pilot program testing an online list of internal connections equipment that is eligible for discounts. We codify an existing policy that a request must include less than “30 percent” of ineligible services. We adopt a rule requiring service providers to give applicants the choice each funding year whether to pay the discounted price or pay the full price and then receive reimbursement, and a rule requiring service providers to remit any reimbursement payments to the applicant within a set time period. We extend the time limit for filing an initial appeal to 60 days, and agreed to accept appeals as filed when postmarked. We also conclude that all successful appeals should be funded to the extent that they would have been funded had the discounts been awarded through the normal funding process. We adopt rules debarring persons convicted of criminal violations or held civilly liable for certain acts arising from their participation in the schools and libraries program, absent extraordinary circumstances. We also make several minor and technical rule changes to conform rules with the No Child Left Behind Act of 2002, clarify the docket for appeals filing, and remove certain obsolete sections.

68. There were no comments filed that specifically addressed the rules and policies presented in the IRFA. Nevertheless, the agency has considered the potential impact of the rules proposed in the IRFA on small entities.

69. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

70. A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations. The term “small governmental jurisdiction” is defined as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” As of 1997, there were approximately 87,453 government jurisdictions in the United States. This number includes 39,044 counties, municipal governments, and townships, of which 27,546 have populations of fewer than 50,000 and 11,498 counties, municipal governments, and townships have populations of 50,000 or more. Thus, we estimate that the number of small government jurisdictions must be 75,955 or fewer. Small entities potentially affected by the proposals herein include eligible schools and libraries and the eligible service providers offering them discounted services, including telecommunications service providers, Internet Service Providers (ISPs) and vendors of internal connections.

71. Under the schools and libraries universal service support mechanism, which provides support for elementary and secondary schools and libraries, an elementary school is generally “a non-profit institutional day or residential school that provides elementary education, as determined under state law.” A secondary school is generally defined as “a non-profit institutional day or residential school that provides secondary education, as determined under state law,” and not offering education beyond grade 12. For-profit schools and libraries, and schools and libraries with endowments in excess of $50,000,000, are not eligible to receive discounts under the program, nor are libraries whose budgets are not completely separate from any schools. Certain other statutory definitions apply as well. The SBA has defined as small entities elementary and secondary schools and libraries having $6 million or less in annual receipts. In Funding Year 2 (July 1, 1999 to June 20, 2000) approximately 83,700 schools and 9,000 libraries received funding under the schools and libraries universal service mechanism. Although we are unable to estimate with precision the number of these entities that would qualify as small entities under SBA's size standard, we estimate that fewer than 83,700 schools and 9,000 libraries might be affected annually by our action, under current operation of the program.

72. We have included small incumbent local exchange carriers in this RFA analysis. A “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g. , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent carriers in this RFA analysis, although we emphasize that this RFA action has no effect on the Commission's analyses and determinations in other, non-RFA contexts.

73. Local Exchange Carriers and Competitive Access Providers. Neither the Commission nor the SBA has developed a size standard specifically for small providers of local exchange services. The closest applicable size standard under the SBA rules is for wired telecommunications carriers. This provides that a wired telecommunications carrier is a small entity if it employs no more than 1,500 employees. According to the most recent Commission data there are 1,619 local services providers with 1,500 or fewer employees. Because it seems certain that some of these carriers are not independently owned and operated, we are unable at this time to estimate with greater precision the number of these carriers that would qualify as small business concerns under SBA's size standard. Of the 1,619 local service providers, 1,024 are incumbent local exchange carriers, 411 are Competitive Access Providers (CAPs) and Competitive Local Exchange Carriers (CLECs), 131 are resellers and 53 are other local exchange carriers. Consequently, we estimate that no more than 1,619 providers of local exchange service are small entities that may be affected.

74. Interexchange Carriers. Neither the Commission nor the SBA has developed a size standard of small entities specifically applicable to providers of interexchange services (IXCs). The closest applicable size standard under the SBA rules is for wired telecommunications carriers. This provides that a wired telecommunications carrier is a small entity if it employs no more than 1,500 employees. According to the most recent Commission data regarding the number of these carriers nationwide of which we are aware, there are 181 IXCs with 1,500 or fewer employees. Because it seems certain that some of these carriers are not independently owned and operated, we are unable at this time to estimate with greater precision the number of these carriers that would qualify as small business concerns under SBA's size standard. Therefore, we estimate that the majority of those 181 IXCs may be affected by our action.

75. Cellular and Other Wireless Telecommunications. The SBA has developed a small business size standard for Cellular and Other Wireless Telecommunications, which consists of all such firms having 1,500 or fewer employees. According to data for 1997, a total of 977 such firms operated for the entire year. Of those, 965 firms employed 999 or fewer persons for the year, and 12 firms employed 1,000 or more. Therefore, nearly all such firms were small businesses. In addition, we note that there are 1807 cellular licenses; however, a cellular licensee may own several licenses. According to Commission data, 858 carriers reported that they were engaged in the provision of either cellular service, Personal Communications Service (PCS), or Specialized Mobile Radio telephony services, which are placed together in the data. We have estimated that 291 of these are small under the SBA small business size standard.

76. Paging. In the Paging Second Report and Order, we adopted a small size standard for “small businesses” for purposes of determining eligibility for special provisions for the auctions held in 2000. For those purposes, a small business was defined as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. The SBA approved this definition. There were 440 licenses sold, and 57 companies claiming small business status won licenses. In addition, at present there are approximately 24,000 Private Paging site-specific licenses and 74,000 Common Carrier Paging licenses. The SBA has developed a small business size standard for Paging, which consists of all such firms having 1500 or fewer employees. According to Commission data, 608 carriers reported that they were engaged in the provision of either paging or “other mobile” services. Of these, we estimate that 589 are small, under the SBA-approved small business size standard. We estimate that the majority of private and common carrier paging providers would qualify as small entities under the SBA definition.

77. SBA has developed a small business size standard for Online Information Services. According to SBA regulations, a small business under this category is one having annual receipts of $21 million or less. According to Census data, there are a total of 2,829 firms with annual receipts of $9,999,999 or less, and an additional 111 firms with annual receipts of $10,000,000 or more. Thus, the number of Online Information Services firms that are small under the SBA's $21 million size standard is between 2,829 and 2,940. Further, some of these Internet Service Providers (ISPs) might not be independently owned and operated. Consequently, we estimate that the great majority of ISPs are small.

78. The Commission has not developed a definition of small entities applicable to the manufacturers of internal network connections. The most applicable definitions of a small entity are the size standards under the SBA rules applicable to manufacturers of “Radio and Television Broadcasting and Communications Equipment” (RTB) and “Other Communications Equipment.” According to the SBA's regulations, manufacturers of RTB or other communications equipment must have 750 or fewer employees in order to qualify as a small business. The most recent available Census Bureau data indicates that there are 1,187 establishments with fewer than 1,000 employees in the United States that manufacture radio and television broadcasting and communications equipment, and 271 companies with less than 1,000 employees that manufacture other communications equipment. Some of these manufacturers might not be independently owned and operated. Consequently, we estimate that the majority of the 1,458 internal connections manufacturers are small.

79. There are no additional reporting or recordkeeping requirements relating directly to the decisions in this Order. The decision to have the Universal Service Administrative Company notify applicants of suspension and debarment proceedings, and maintain a list of persons debarred from the program does not add any reporting, recordkeeping, or compliance requirements to small entities.

80. Regarding other compliance burdens, the Order clarifies a compliance requirement that would affect all participating entities, by requiring service providers to allow applicants to choose whether they should be provided with discounted bills or whether they should pay the service provider for the undiscounted price and later be reimbursed. In addition, the Order establishes a time limit for service providers to reimburse the applicant. This potentially could require small service providers to implement accounting systems to allow them to provide such discounts and remit such payments within the required time frame. In the Schools and Libraries NPRM, we specifically invited commenters to discuss the impact of such changes on small businesses and schools and libraries that might also be small entities. We find that this would have a positive economic impact on the schools and libraries, including small ones, that cannot afford upfront payments. We are not persuaded that any burden regarding this billing clarification is significant and conclude that it will not be a burden upon small providers that wish to participate in the program to provide applicants with such a choice. Regarding the remittance deadline, we find this will not be a burden to small providers and that it will positively impact schools and libraries, including small ones, waiting for reimbursement.

81. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others: “(1) establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

82. Although there were no comments specifically regarding the IRFA, there were concerns from commenters about how an online eligible services list might impact businesses providing services, and might help small schools and libraries. Consistent with our desire to assist small entities, we have directed USAC to develop a pilot program testing an online list of internal connections equipment that is eligible for discounts and report back to the Commission about its impact.

83. The Order also allows for the funding of discounts for voice mail, a proposal that garnered overwhelming support of commenters. We find that adoption of this proposal would reduce the administrative burden on schools and libraries participating in the program because they would no longer have to segregate out the voice mail portion of their phone bills when they apply for funding. The inclusion of voice mail would have a positive effect on entities that receive discounts for telecommunications in that this commonly used service would now be included in discounts.

84. In addition, we codify an existing policy of less than “30 percent” of a request to include ineligible services. This maintains the status quo.

85. We also extend the time limit for filing an initial appeal with the Schools and Libraries Division and the Commission to 60 days and accept appeals as filed when postmarked based on comments that this would benefit all entities involved in the program. Also, all entities will benefit by the steps we have taken to ensure that all successful appeals will be funded to the extent that they would have been funded had the discounts been awarded through the normal funding process.

86. Additionally, we direct the Enforcement Bureau to undertake suspension and debarment proceedings for persons convicted of criminal violations or held civilly liable for certain acts arising from their participation in the schools and libraries support mechanism. We have given a suspended or debarred person, or a person that has contracted or intends to contract with a suspended or debarred person to provide or receive services in connection with the schools and libraries support mechanism the opportunity to request that the Commission reverse or reduce the period or scope of suspension or debarment.

87. Report to Congress: The Commission will send a copy of the Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Order and FRFA (or summaries thereof) will also be published in the Federal Register .

88. Pursuant to the authority contained in sections 1, 4(i), 4(j), 201-205, 214, 254, and 403 of the Communications Act of 1934, as amended, this Second Report and Order is adopted.

89. Part 54 of the Commission's rules, 47 CFR part 54, is amended as set forth, effective July 21, 2003, except for §§ 54.500(k), 54.503, 54.507(g)(1)(i) and (g)(1)(ii), 54.514(a), and 54.517(b) will become effective July 1, 2004. In addition, § 54.515(b) contains information collection requirements that have not been approved by the Office of Management Budget (OMB). The Commission will publish a document in the Federal Register announcing the effective date of that section.

90. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Second Report and Order, including the Final Regulatory Flexibility Analysis and Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

The FPI Board of Directors recently adopted a resolution increasing, to $2,500, the blanket waiver threshold relating to small dollar-value purchases from FPI. An interim rule amending the Federal Acquisition Regulation (FAR) to implement this waiver was published as Item V of Federal Acquisition Circular (FAC) 2001-14 on May 22, 2003 (68 FR 28094). The preamble provides information for parties interested in providing public comment on that rule.

The text at DFARS 208.606(1) implements a previous blanket waiver granted by FPI for DoD purchases totaling $250 or less that require delivery within 10 days. Since the broader waiver implemented at FAR 8.606 by FAC 2001-14 applies to all Federal agencies, the text at DFARS 208.606(1) is no longer necessary and is being deleted.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

This rule will not have a significant cost or administrative impact on contractors or offerors, or a significant effect beyond the internal operating procedures of DoD. Therefore, publication for public comment is not required. However, DoD will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should cite DFARS Case 2003-D006.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This final rule updates DFARS policy on performance and payment bonds for construction contracts. In accordance with the Miller Act (40 U.S.C. 270a-270f), FAR 28.102-1(a) requires performance and payment bonds for construction contracts exceeding $100,000. In accordance with Section 4104(b)(2) of the Federal Acquisition Streamlining Act of 1994 (Public Law 103-355), FAR 28.102-1(b) permits alternative payment protections for construction contracts between $25,000 and $100,000. DFARS 228.102-1 waives the requirement for performance and payment bonds for cost-reimbursement contracts, but requires the prime contractor to obtain bonds for its fixed-price subcontracts exceeding $25,000. This DFARS rule authorizes the use of alternative payment protections for subcontracts between $25,000 and $100,000, for consistency with the corresponding FAR policy applicable to prime contracts.

In addition, this rule updates text implementing 10 U.S.C. 2701(h) and (i), pertaining to bonds under Defense Environmental Restoration Program contracts. 10 U.S.C. 2701(h) and (i) were to expire on December 31, 1999; however, Section 314 of the National Defense Authorization Act for Fiscal Year 2002 (Public Law 107-107) removed this expiration date. Therefore, the corresponding DFARS text has been amended to remove the expiration date. Additionally, the text has been relocated from 228.102-1 to a new section at 228.102-70, to identify the subject matter as DoD-unique.

DoD published a proposed rule at 68 FR 7490 on February 14, 2003. DoD received no comments on the proposed rule. Therefore, DoD has adopted the proposed rule as a final rule without change.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the rule still requires payment protections for fixed-price construction subcontracts exceeding $25,000, while providing flexibility for subcontractors to chose the type of protection to be provided for subcontracts between $25,000 and $100,000.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This final rule contains instructions for contracting officers to use in completing DD Form 350, Individual Contracting Action Report, during Fiscal Year 2004. DoD uses this form to collect statistical data on its contracting actions. The rule includes changes related to reporting of contract modification actions and program or system information.

DD Form 350, and other forms prescribed by the DFARS, are not included in the Code of Federal Regulations. The forms are available electronically via the Internet at http://web1.whs.osd.mil/icdhome/ddeforms.htm.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

This rule will not have a significant cost or administrative impact on contractors or offerors, or a significant effect beyond the internal operating procedures of DoD. Therefore, publication for public comment is not required. However, DoD will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should cite DFARS Case 2003-D002.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

The final rule implementing Framework 2 (68 FR 22325; April 28, 2003) contained an inadvertent error in a table in the regulatory text under 50 CFR 648.96(b)(1)(ii) describing the annual biomass index targets upon which the target TAC setting procedures established in Framework 2 are based. The fishing years referenced in columns 2 through 6 of the table, on page 22330 of the April 28, 2003, Federal Register document, are incorrect. The fishing year in column 2 of the table should read “FY 2002”, not “FY 2003”, and the fishing years in columns 3 through 6 should read “FY 2003”, “FY 2004”, “FY 2005”, and “FY 2006”, respectively. These changes only correct reference points and do not modify any regulatory requirements.