The regulations in 7 CFR part 318 prohibit or restrict the interstate movement of fruits, vegetables, and certain other articles from Hawaii, Puerto Rico, the U.S. Virgin Islands, and Guam to prevent the introduction and dissemination of plant pests into the continental United States.

The regulations in part 318, “Subpart—Sweetpotatoes” (§§ 318.30 and 318.30a, referred to below as the regulations) quarantine Hawaii, Puerto Rico, and the U.S. Virgin Islands because of the sweetpotato scarabee ( Euscepes postfasciatus Fairm. [Coleoptera: Cucurlionidae], also known as the West Indian sweetpotato weevil) and the sweetpotato stem borer ( Omphisa anastomosalis Guen. [Lepidoptera: Crambidae], also known as the sweetpotato vine borer) and restricts the interstate movement of sweetpotatoes ( Ipomoea batatas Poir.) from those places.

The regulations have provided that sweetpotatoes may be moved interstate from Hawaii only if they have been subjected to fumigation with methyl bromide or they are being moved by the United States Department of Agriculture (USDA) for scientific or experimental purposes. In this interim rule, we are adding treatment with irradiation as an alternative to fumigation with methyl bromide. Specifically, sweetpotatoes from Hawaii will be eligible for interstate movement if they are irradiated with a minimum dose of 400 Gy (40 krad) at an approved facility. We have determined that this dose will neutralize the pests of concern.

A pest risk assessment completed by the Animal and Plant Health Inspection Service (APHIS) in 2002 and updated in May 2003 identified five pests of concern that could be spread from Hawaii to the rest of the United States by the interstate movement of sweetpotatoes: The two pests already named in the regulations, the sweetpotato scarabee and the sweetpotato stem borer; the gray pineapple mealybug, Dysmicoccus neobrevipes (Homoptera: Pseudococcidae); the ginger weevil, Elytrotreinus subtruncatus (Coleoptera: Cucurlionidae); and the Kona coffee root-knot nematode, Meloidogyne konaensis (Tylenchida: Heteroderidae). Copies of this risk assessment may be requested from the person listed under FOR FURTHER INFORMATION CONTACT.

Three of these pests, the ginger weevil, the sweetpotato scarabee, and the sweetpotato stem borer, are internal pests, meaning that visual inspection would not be an effective means to intercept them; thus, they must be neutralized by treatment. We believe that irradiation at 400 Gy (40 krad) is an effective alternative to the methyl bromide treatment currently prescribed by the regulations to control these pests. No specific research has been completed on the irradiation dose necessary to neutralize the ginger weevil, the sweetpotato scarabee, or the sweetpotato stem borer. However, the International Plant Protection Convention (IPPC) Guidelines for the Use of Irradiation as a Phytosanitary Measure (ISPM Publication No. 18) recommends minimum doses between 50 and 400 Gy (5 and 40 krad) for all plant pests except stored product moths and nematodes. For stored product beetles of the family Coleoptera, such as the sweetpotato scarabee and the ginger weevil, the recommended minimum dose range to sterilize actively reproducing adults is 50 to 400 Gy (5 to 40 krad). For borers of the family Lepidoptera, such as the sweetpotato stem borer, the recommended minimum dose range to prevent adult development from late larva is 100 to 280 Gy (10 to 28 krad). These recommendations were developed based on research by G.J. Hallman  1 and the research summarized in the International Atomic Energy Agency's International Database on Insect Disinfestation and Sterilization. 2

In addition, preliminary research conducted by the USDA's Agricultural Research Service on the sweetpotato scarabee and the sweetpotato stem borer indicates that irradiating sweetpotatoes with a dose of 400 Gy (40 krad) kills all of these pests if they are present in the sweetpotatoes. According to this research, a dose of 200 Gy (20 krad) is sufficient to stop reproduction in these pests. Given this information and the fact that 400 Gy is at the top of the range of minimum doses the IPPC recommends for neutralizing pests in the family that contains the ginger weevil, we believe that the minimum dose of 400 Gy (40 krad) that we are requiring is a conservative minimum requirement that will neutralize all three of these pests.

While the quality of some other commodities might be affected by irradiation at 400 Gy (40 krad), the sweetpotato grown in Hawaii has been shown to tolerate this dose. The minimum dose of 400 Gy (40 krad) required by this rule falls well below the maximum dose of 1,000 Gy (100 krad) specified by the Food and Drug Administration regulations that address the safety of irradiated foods. 3 There are no commodity or food safety concerns associated with requiring that Hawaii-grown sweetpotatoes be irradiated with a dose of 400 Gy (40 krad).

The other two pests identified in the 2002 risk assessment, the gray pineapple mealybug and the Kona coffee root-knot nematode, are external pests. We believe they can be effectively detected by visual inspection, and we are requiring such visual inspection as a condition of the interstate movement of sweetpotato from Hawaii. This is consistent with the recommendations of the pest risk assessment mentioned above.

The regulations in “Subpart—Hawaiian Fruits and Vegetables” in part 318 (§§ 318.13—318.13-17) already provide for the use of irradiation to treat a variety of other commodities from Hawaii. The irradiation provisions in § 318.13-4f allow abiu, atemoya, bell peppers, carambola, eggplant, litchi, longan, mangoes, papaya, pineapple (other than smooth Cayenne), rambutan, sapodilla, Italian squash, and tomatoes to be moved interstate from Hawaii if, among other things, the fruits and vegetables undergo irradiation treatment in accordance with that section. The section's provisions for irradiation treatment include minimum dosage requirements, requirements for approved facilities, treatment monitoring requirements, packaging standards, and movement restrictions. (The irradiation facility in Hawaii that presently treats other fruit for which irradiation is an approved treatment as a condition of interstate movement from Hawaii satisfies all these requirements and has already been approved by APHIS.)

Because these regulations in § 318.13-4f are already in place, and because we have determined that sweetpotatoes should be treated, handled, and certified for movement under the same conditions described in that section, we are adding sweetpotatoes to the list of fruits and vegetables that may be treated with irradiation as a condition of interstate movement from Hawaii in § 318.13-4f(a). This will eliminate the need to establish what would be essentially the same provisions in § 318.30. We will, however, amend § 318.30 to provide that irradiation in accordance with § 318.13-4f may be used to qualify sweetpotatoes from Hawaii for interstate movement. We intend, in a future rulemaking, to revise the regulations in the sweetpotato subpart and perhaps disperse the provisions of the subpart into the subparts governing movement of fruits and vegetables from Hawaii and from Puerto Rico or the U.S. Virgin Islands, respectively.

The regulations in § 318.13-4f do not generally provide that fruits and vegetables treated in accordance with that section must also be inspected as a condition of interstate movement. However, the regulations in § 318.13-4f(b)(7) provide that litchi must be inspected and found free of the litchi fruit moth and other plant pests prior to treatment in Hawaii or movement to the mainland for treatment. Because, as noted above, sweetpotatoes moved interstate from Hawaii must be visually inspected to ensure that they are free of the gray pineapple mealybug and the Kona coffee root-knot nematode, we are adding an inspection provision for sweetpotatoes similar to that for litchi. Specifically, we are amending § 318.13-4f(b)(7)(i) to indicate that, to be eligible for a certificate for interstate movement, sweetpotatoes to be treated in Hawaii in accordance with § 318.13-4f must be found by an inspector to be free of the gray pineapple mealybug and the Kona coffee root-knot nematode by an inspector before undergoing irradiation treatment in Hawaii. We are also amending § 318.13-4f(b)(7)(ii) to indicate that, to be eligible for a limited permit for the interstate movement of untreated sweetpotatoes from Hawaii for treatment on the mainland United States, sweetpotatoes from Hawaii must be inspected in Hawaii and found to be free of the gray pineapple mealybug and the Kona coffee root-knot nematode by an inspector.

The addition of sweetpotatoes to the regulations in § 318.13-4f that govern irradiation of fruits and vegetables moved interstate from Hawaii also necessitates three minor changes to those regulations:

• The title of the table in § 318.13-4f has read “Irradiation for Fruit Flies and Seed Weevils in Hawaiian Fruits and Vegetables.” We are revising this title to read, more generically, “Irradiation for Plant Pests in Hawaiian Fruits and Vegetables.”

• The heading of the left-hand column in that table has read “Fruit.” We are revising this heading to read, more generically, “Commodity.”

• Paragraph § 318.13-4f has stated that treatment in accordance with § 318.13-4f is approved to assure quarantine security against the Trifly complex. We are amending this paragraph to indicate that the treatment is approved to treat other plant pests as well.

This interim rule gives Hawaiian producers and exporters of sweetpotatoes who wish to move their products interstate an additional treatment option while continuing to protect against the introduction of plant pests associated with Hawaiian sweetpotato into other States.

This rule provides for the use of irradiation to treat sweetpotatoes moving interstate from Hawaii. Immediate action is warranted to alleviate the negative economic effects that Hawaiian growers and shippers face as a result of the fact that our regulations previously only allowed fumigation as an acceptable treatment for Hawaiian sweetpotatoes moved interstate. Fumigation facilities are unavailable on some islands in Hawaii on which sweetpotatoes are grown, and producers of sweetpotatoes on those islands must pay additional transportation costs for treatment before moving their sweetpotatoes interstate. Because a more accessible irradiation facility that provides phytosanitary treatment of equal effectiveness is available to these producers, the requirement that sweetpotatoes must be fumigated to be moved interstate imposed an unnecessary economic hardship on these producers. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the Federal Register .

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

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

We are amending the regulations to allow sweetpotatoes to be moved interstate from Hawaii if they undergo irradiation at an approved facility. The sweetpotatoes will also have to meet certain additional requirements, including inspection and packaging requirements. This action provides for the use of irradiation as an alternative to methyl bromide for the treatment of sweetpotatoes moved interstate from Hawaii.

Commercial sweetpotato production in Hawaii occurs on the islands of Hawaii, Kauai, Maui, and Oahu. There were 53 sweetpotato farms in Hawaii in 1997. 4 The production of sweetpotatoes in Hawaii amounted to 1.8 million pounds, and the value of these sweetpotatoes was $900,000 in 2001 (table 1).

In the continental United States, sweetpotato is grown commercially in Alabama, California, Georgia, Louisiana, Mississippi, New Jersey, North Carolina, South Carolina, Texas, and Virginia. 5 North Carolina, Louisiana, Mississippi, and California account for the major proportion of production area by State (table 2). In total, the United States produced 1.36 billion pounds of sweetpotatoes from 93,500 acres in 2003 (table 3).

The crop is grown on 1,770 farms, which represents a decrease of 44 percent since 1987. 6 Production of sweetpotatoes peaked in 1932 when 48 million cwt  7 was generated, followed by a long-term downward trend in production. However, sweetpotato production trended higher again after 1988, and increased by 15 percent between 1989-1991 and 1999-2001. Farm cash receipts averaged $214 million over the period 1999-2001. Few imports of sweetpotatoes enter the continental United States, with 97 percent of the import volume moving directly from the Dominican Republic into Puerto Rico. The Hawaiian sweetpotato production of 1.8 million pounds thus comprises a fairly minor proportion of the total production of 1,355 million pounds in the United States.

More than three-quarters of the annual U.S. sweetpotato crop is sold as human food, and around two-thirds of the total sales are for the fresh market. About a quarter of the sweetpotatoes sold for food are processed into frozen products, and 2 to 3 percent are chipped or dehydrated. U.S. sweetpotato utilization averaged 1.1 billion pounds during 1999-2001, accounting for almost 3.9 pounds per capita.

Methyl bromide fumigation is currently conducted on the Island of Oahu. The product has to be moved by barge from the port of Hilo on the Island of Hawaii to the port of Honolulu on Oahu. The charge for such transportation is between 2 to 3 cents per pound. A pallet of sweetpotatoes weighs 1,500 pounds (50 30-pound boxes), so the charge is approximately $35 per pallet for a non-chilled shipment. Trucking and handling charges to move the sweetpotatoes from the pier on Oahu to the fumigation site and, after fumigation, back to the pier or to the airport are estimated at $34 per pallet.

The per-unit cost of methyl bromide fumigation is influenced by the number of pallets treated. Costs are $610 for 1 to 6 pallets, $1,026 for 7 to 9, and $1,250 for 10 to 12. The minimum charge is $610. Per-unit cost thus decreases as more pallets are treated within these ranges. For example, the cost decreases from 40.6 cents per pound to 6.7 cents per pound if six pallets instead of only one pallet are treated at $610 (table 4).

APHIS monitoring of the treatment costs $368 per treatment. This is based on a minimum of 2 hours required to set up for the fumigation, a minimum of 2 hours for necessary after-treatment labor such as certification, and 2 hours minimum travel time each way to monitor the fumigation. The total 8 hours at $46 per hour amounts to $368. Due to the time delays involved in inter-island movements of sweetpotatoes, all fumigations are conducted after 4 p.m. or on weekends, which means that APHIS treatment monitors are paid “time-and-a-half” wages. If the sweetpotatoes being treated belong to more than one shipper, the APHIS costs are evenly divided between the shippers, regardless of the relative quantities treated for each shipper. For example, if two shippers are involved, each would pay $184, even if one shipper's sweetpotatoes comprised more than half of the total treated. APHIS monitoring costs for fumigation do not vary with the number of sweetpotatoes treated.

Various time delays are involved in the inter-island movement of the sweetpotatoes for fumigation, meaning that this transportation is sometimes problematic. Shipments from the main island, Hawaii, generally leave Hilo on Monday, with the barge arriving at Oahu on Wednesday. These shipments are treated on Wednesday or Thursday and arrive by Friday on the mainland U.S. west coast if transported by air. The barge that leaves Hilo on Thursday arrives at Oahu on Saturday. Weekend fumigation is conducted at significantly higher costs and Sunday pickup at the pier is not allowed. Thus, shipping sweetpotatoes on the Thursday barge is generally avoided. 9

There are also concerns regarding the future cost and availability of methyl bromide given the continuing reductions in the use of methyl bromide mandated by the Montreal Protocol, which governs the use of substances that deplete stratospheric ozone; in 2005, all uses of methyl bromide in developed countries other than quarantine and pre-shipment applications and critical or emergency uses will be prohibited. The price of methyl bromide has increased significantly as worldwide production of methyl bromide has decreased from its 1991 baseline. According to the Environmental Protection Agency, U.S. west coast end-user prices of methyl bromide gas have increased from $1.25 per pound to $4.50 per pound over the period 1995 to 2001. This represents an increase of 366 percent. Further price increases are deemed likely as the 2005 phase-out date approaches.

The cost of irradiation is estimated at 15 cents per pound, regardless of the amount of sweetpotatoes treated. 10 Lot sizes will be as requested by shippers. Irradiation treatment generally occurs between 8 a.m. and 4 p.m. At these times, an APHIS inspector would already be on-site at the irradiation facility to monitor the treatment under the terms of the compliance agreement irradiation facilities must operate under in order to treat fruits and vegetables from Hawaii for interstate movement. Therefore, there would generally be no additional APHIS charges associated with irradiation treatment. Shippers could choose to have their sweetpotatoes treated outside of normal hours and thus incur APHIS charges for overtime labor, but such scheduling would be optional; as noted above, all fumigation treatments currently must be conducted during overtime hours.

The irradiation will occur mostly at an existing facility in Hawaii, prior to the shipment of the sweetpotatoes to the mainland United States. The X-ray irradiation facility in Hawaii commenced its commercial operation on August 1, 2000. At first, only papayas were treated. Five hundred to 1,000 boxes of papayas are treated per day, 4 times a week. The facility is currently also used to treat mangoes, bell peppers, eggplants, pineapples (other than smooth Cayenne), Italian squash, and tomatoes. Most of the fruits and vegetables produced in Hawaii for which irradiation is an approved treatment are irradiated in Hawaii before they are moved interstate, but some fruits and vegetables are occasionally taken to one of three irradiation facilities in the continental United States. These include facilities in Libertyville and Morton Grove in Illinois, and a facility in Whippany, New Jersey. Various other tropical fruits, such as papaya, litchi, rambutan, carambola, and atemoya, are at present shipped to Illinois for cobalt irradiation treatment.

The quantity of sweetpotatoes to be shipped annually from Hawaii is projected to fill approximately 21 forty-foot long shipping containers. Allowing irradiation as an alternative to fumigation with methyl bromide as a treatment for sweetpotatoes moving interstate from Hawaii may lead to increased production of sweetpotatoes in Hawaii if the lower cost of treatment makes sweetpotato a more profitable crop to produce and ship. The magnitude of the impact of this alternative treatment on production is presently unknown. Due to production limitations, it is estimated that the total volume of sweetpotatoes moved interstate from Hawaii could not exceed 100 containers per annum.

The approval of irradiation as an alternative treatment for sweetpotatoes moved interstate from Hawaii will benefit various stakeholders. At 15 cents per pound, irradiation can be conducted at a lower cost than fumigation of one to two pallets (20.3 to 40.6 cents per pound) (table 4). Though larger quantities of sweetpotatoes, which fill more pallets, can be fumigated at lower per-unit costs (6.7 to 13.5 cents per pound), irradiation eliminates the transport costs associated with fumigation. These transport costs include moving the crop from the island of Hawaii to Oahu (2 to 3 cents per pound) and trucking and handling costs of moving the crop between the harbor or airport and the fumigation site on Oahu ($34 per pallet, about 2.3 cents per pound). Irradiation also eliminates the cost of $368 per treatment attributable to APHIS monitoring of fumigation, which is currently conducted outside standard business hours.

Growers and shippers on the main island of Hawaii will benefit from lower transportation costs, since shipment of the crop from Hawaii to Oahu for fumigation will no longer be necessary. The availability of treatment at a more convenient location will also remove various logistical complications. This will reduce the total expense and time delay in moving the product and will enable sweetpotatoes to be treated and shipped at a lower cost than is currently possible with fumigation. The importance of alternative treatments is especially highlighted in view of the mandated global reductions in the use of methyl bromide under the Montreal Protocol and the expected rise in the price of methyl bromide due to its scarcer supply. Irradiation also tends to affect quality less negatively than fumigation and may extend the shelf life of the tubers.

The irradiation facility in Hawaii will benefit from having more crops available to treat. The treatment available at this facility has enabled many producers in Hawaii to move their products to the mainland, thus providing them with access to markets that were not previously available. For several years, the State of Hawaii has encouraged farmers to diversify agricultural production, given the significant decline in the production of sugarcane as a major crop. The approval of irradiation as a treatment for sweetpotatoes moved interstate from Hawaii will help to provide steady throughput for this facility. The facility currently treats seasonal crops whose volume is more variable than that of sweetpotatoes and is thus sometimes underutilized. A steady source of revenues from treatment, such as revenues from treating sweetpotatoes to be moved interstate, would help assure this facility's continued operation and availability for all the producers in Hawaii who can use it.

U.S. mainland consumers will benefit by an increased supply of sweetpotatoes. Hawaiian sweetpotato production amounts to 1.8 million pounds, which comprises a small proportion of the total production of 1,355 million pounds in the United States (tables 1, 2 and 3). Thus, even if the irradiation treatment leads to increased production of Hawaiian sweetpotatoes, sweetpotato shipments from Hawaii are unlikely to affect mainland producers negatively. However, to the extent that this interim rule makes moving sweetpotatoes from Hawaii interstate more convenient and less costly, the rule provides the Hawaiian sweetpotato industry with opportunities to expand its mainland markets.

The Regulatory Flexibility Act requires that agencies specifically consider the economic impact of their regulations on small entities. The Small Business Administration (SBA) has established size criteria in the North American Industry Classification System (NAICS) to determine which economic entities meet the definition of a small firm.

The irradiation facility in Hawaii is expected to be the primary facility to treat Hawaiian sweetpotatoes before they are moved interstate. If the facility in Hawaii does not have enough capacity to treat all the sweetpotatoes that producers wish to move interstate from Hawaii, some of the crop may be sent to one of the other three facilities on the mainland United States. The facility in Hawaii can be classified under NAICS category 115114, “Postharvest Crop Activities (except Cotton Ginning).” According to the SBA's criteria, this facility is classified as a small entity, since its annual sales are less than $6 million. A single firm owns the two facilities in Illinois and the facility in New Jersey. Its primary service is to provide irradiation treatment for the sanitation of medical devices on contract. This firm is classified under NAICS category 325612, “Polish and Other Sanitation Good Manufacturing.” However, since it is part of a larger corporation with 500 or more employees, that firm is not considered a small entity under the SBA's criteria.

Sweet potato farming is classified under NAICS 111219, “Other Vegetables (except Potato) and Melon Farming.” According to the SBA's criteria, an entity involved in crop production is considered small if it has average annual receipts of less than $750,000. Since the 53 sweetpotato farms in Hawaii accounted for sales of $900,000 in 2001, we believe it is safe to assume that all of these farms would be classified as small entities. We expect that the economic effects of this rule will be positive for those producers, to the extent that this rule makes moving sweetpotatoes from Hawaii interstate more convenient and less costly. As noted above, due to the fact that Hawaiian sweetpotato production makes up a very small proportion of total U.S. sweetpotato production, this interim rule is not expected to significantly affect sweetpotato farmers in the mainland United States.

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are 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 rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Section 217(b) of the Agricultural Assistance Act of 2003 requires that the regulations to implement it shall be promulgated without regard to the notice and comment provisions of 5 U.S.C. 553, or the Statement of Policy of the Secretary of Agriculture relating to notices of proposed rulemaking and public participation in rulemaking (36 FR 13804, July 24, 1971). The crop disaster program and livestock assistance program are covered by section 765(c) of the 2003 Act. The 2003 Act did not provide a similar requirement for the addition of crambe and sesame seed to the oilseeds eligible for CCC direct and counter-cyclical payments and market assistance loans. However, the 2003 Act amended the Farm Security and Rural Investment Act of 2002 (the 2002 Act) to require those crops' inclusion and section 1601 of the 2002 Act provides the exemption. Thus, this rule is published as final.

This final rule has been determined to be economically significant under Executive Order 12866 and has been reviewed by the Office of Management and Budget (OMB). A cost-benefit assessment of this rule was completed and is summarized after the Background section.

This final rule applies to the following Federal assistance programs, as found in the Catalog of Federal Domestic Assistance:

10.051—Commodity Loans and Loan Deficiency Payments.

10.066—Livestock Assistance Program.

10.073—Crop Disaster Program.

The Regulatory Flexibility Act does not apply to this rule because the agencies are not required by 5 U.S.C. 553 or any other law to publish a notice of proposed rulemaking with respect to the subject of this rule.

The environmental impacts of this rule have been considered in accordance with the provisions of the national Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. , the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and FSA's regulations for compliance with NEPA, 7 CFR part 799. To the extent these authorities may apply, CCC and FSA have concluded that this rule is categorically excluded from further environmental review as evidenced by the completion of an environmental evaluation. No extraordinary circumstances or other unforeseeable factors exist which would require preparation of an environmental assessment or environmental impact statement. A copy of the environmental evaluation is available for inspection and review upon request.

The final rule has been reviewed in accordance with Executive Order 12778. This final rule preempts State laws to the extent such laws are inconsistent with it. This rule is not retroactive. Before judicial action may be brought concerning this rule, all administrative remedies must be exhausted.

This program is not subject to 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 (June 24, 1983).

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) does not apply to this rule because CCC is not required by 5 U.S.C. 553 or any other law to publish a notice of proposed rulemaking for the subject of this rule. Further, this rule contains no unfunded mandates as defined in sections 202 and 205 of UMRA.

Section 765(c) of the 2003 Act and section 1601 of the 2002 Act require CCC, in promulgating the regulations and administering the programs of the Act, to use the authority in section 808 of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121 (SBREFA), to forgo the usual 60-day delay in the effective date of major final rules required by SBREFA (5 U.S.C. 801(a)(3)(A)(ii)) for Congressional review. This rule affects a number of agricultural producers who are in urgent need of the payments to be provided under it. Thus, in accordance with 5 U.S.C. 808(2), CCC has determined that delay is contrary to public interest and this rule is effective upon the date of filing for public inspection by the Office of the Federal Register.

Section 765(c) of the Agricultural Assistance Act of 2003 and section 1601 of the 2002 Act require that these regulations be promulgated and the programs administered without regard to 44 U.S.C. 35, the Paperwork Reduction Act. This means that the information to be collected from the public to implement these programs and the burden, in time and money, the collection of the information would have on the public do not have to be approved by the Office of Management and Budget or be subject to the 60-day public comment period required by 5 CFR 1320.8(d)(1).

FSA is committed to compliance with the Government Paperwork Elimination Act (GPEA) and the Freedom to E-File Act, which require Government agencies in general and FSA in particular to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. The forms and other information collection activities required by participation in the programs covered under this rule are not yet fully implemented for the public to conduct business with FSA electronically. Although applications for all programs may be submitted at the FSA county offices by mail or FAX, electronic submission is not available. Still, implementation of electronic submission and receipt is underway.

Section 763, Division A of the 2003 Act amended sections 1001 and 1202 of the 2002 Act to add crambe and sesame seed to the list of oilseeds eligible for direct and counter-cyclical payments and marketing assistance loans. The 2002 Act did not specifically include crambe and sesame seed but it did provide the Secretary the authority to include additional oilseeds in these programs. Crambe and sesame seed were not included initially but will be included now as required by the 2003 Act.

This rule allows producers with a farm with acreage planted to, or prevented from being planted to, popcorn in any year from 1998 through 2001 to have popcorn acreage considered as regular corn acreage for the purposes of establishing corn base acres on the farm. Section 767 of the 2003 Act requires this change. It also provides that a farm program payment yield established before adding popcorn acreage shall be the same yield as established for corn. If the yields are not established for corn before adding popcorn acreage, the corn yield to be attributed to popcorn acreage shall be the Direct and Counter Cyclical Program (DCP) corn yield for similar farms. This change is effective fewer than 60 days before the deadline for producers to establish base acres for all covered commodities on a farm. Therefore, this rule extends this deadline for popcorn farms to July 28, 2003. Applicable direct and counter-cyclical payments for corn base acres added to a farm under this rule will be paid after October 1, 2003.

Section 203(b) of the Agricultural Assistance Act of 2003 requires the Secretary of Agriculture to use $250 million to pay livestock producers for losses in a disaster county in either of calendar years 2001 or 2002, but not both. The program will use the same basic criteria established for the 1999 Livestock Assistance Program (1999 LAP) except that, in lieu of the maximum gross revenue eligibility limitation used for the 1999 LAP, the Secretary shall use the adjusted gross income limitation contained in section 1001D of the Food Security Act of 1985 (7 U.S.C. 1308-3a).

Livestock producers who suffered livestock feed losses as a result of natural disaster may apply for compensation for losses incurred in calendar year 2001 or 2002. If the livestock operation is in a county declared to be a disaster county for both calendar year 2001 and calendar year 2002, the producers must elect the year for which they wish to receive LAP payments. An operation may receive 2002 LAP for losses in either one of the affected calendar years, but not both. If the livestock operation is in a county that was declared to be a disaster county in just one of those calendar years, the producers may elect to receive payments for losses in either calendar year, but not both. Benefits will be provided to eligible livestock producers only in those counties declared under a Secretarial or Presidential disaster declaration and that meet LAP eligibility requirements and are subsequently approved for participation in LAP. A county must have suffered a 40-percent or greater grazing loss for 3 consecutive months during the selected calendar year as a result of damage due to a natural disaster in order to be eligible. Livestock producers in counties contiguous to an approved county are not eligible. A livestock producer in an approved county must have suffered at least a 40-percent loss of normal grazing for the producer's eligible livestock for a minimum of 3 consecutive months. Losses will be compensable only up to 80 percent of the total grazing available and the compensable loss may not exceed the county maximum set by the local FSA county committee.

Payments will be made according to a formula and will be subject to funding and other limitations, including a $40,000 per person payment limitation. In the event that the total amount of claims submitted under this subpart exceeds the $250 million available for 2002 LAP, each payment shall be reduced by a uniform national percentage. The amount of assistance that producers would otherwise receive under 2002 LAP shall be reduced by the assistance producers receive under the 2002 Cattle Feed Program announced on September 3, 2002, the 2002 Livestock Compensation Program announced on October 10, 2002, and the Livestock Compensation Program II announced on May 5, 2003.

The 2003 Act authorizes the Secretary to provide assistance to crop producers for losses due to damaging weather and related conditions in 2001 or 2002 crops. Generally, the statute requires the Crop Disaster Program (CDP) program to be administered using similar requirements as used for 2000-crop losses under the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriation Act, 2001 (2001 Act) (Public Law 106-387). Special approved yields based on actual production are prohibited unless production reports were submitted before enactment of the 2003 Act. The statute provides that total assistance under the CDP, crop insurance program and Noninsured Crop Disaster Assistance Program (NAP), plus the value of the crop that was not lost, may not exceed 95 percent of the value of the crop had there been no loss.

The loss thresholds used with respect to the 2000 program are applicable to insured, uninsured and non-insurable 2001 or 2002 crops. For uninsured crops for which 2001 or 2002 CDP assistance is requested, applicants must purchase crop insurance coverage at a level greater than the level available under catastrophic risk protection, if available, for 2003 and 2004 crop years. Also, for 2001 or 2002 CDP benefits for a non-insurable crop for which NAP coverage was not obtained, the producer must submit required documents and pay the administrative fee for 2003 and 2004 for such crops. However, if the sales closing date for purchasing NAP or crop insurance has passed, a producer must meet the linkage requirements for the two subsequent years. Producers who do not purchase crop insurance or NAP as required will be required to refund assistance received, plus interest. Applicants must apply for benefits during the sign-up period announced by the Deputy Administrator.

False certifications by producers carry strict penalties and FSA will validate applications with random spot-checks. Like earlier programs, gross revenue and per-person payment limits apply. A “person” may receive no more than $80,000 in Crop Disaster payments, nor receive benefits if their gross revenue exceeds $2.5 million in the tax year preceding the year for which benefits are requested. The 1997 Census of Agriculture indicates that less than 2.4 percent of the farms in the U.S. have sales greater than $500,000, and farms with gross incomes of $2.5 million or more only represent a small fraction of one percent. Thus, the gross revenue limitation only limits eligibility of the nation's largest farm and ranch operations.

This rule makes corrections to 7 CFR part 1412 where the need has become evident since this program was begun in October 2002. First, section 1412.401 is revised to provide that payments may be issued to a successor to a contract only after payments issued to the predecessor are refunded to CCC, or a debt for any amount not refunded to CCC has been established. Before, in such cases, payments could be issued to the successor only after payments were refunded. Second, in section 1412.407(e), the names of two county names that were misspelled are corrected. Third, section 1412.408 is added to provide for redistribution of base acreage under certain circumstances. And finally, section 1412.703 is revised to delete an incorrect cross reference.

Crop disaster: General payments for insured and non-insurable crops will be made at 50 percent of market price, and uninsured crops will be made at 45 percent of market price. Payments for insured crops will be made at the slightly higher rate to provide an incentive to purchase crop insurance. Payments for non-insurable crops will be made at the higher rate because insurance is not available for these crops. Claims for losses under the 1999- and 2000-crop disaster programs were about $1.7 billion and 1.9 billion, respectively, before pro-rationing. Based on similar weather conditions, crop losses under the 2001 or 2002 program are expected to be about $2 billion. The $80,000 payment limitation and the limitation of $2.5 million gross income will distribute payments more toward relatively smaller farms. Nonetheless, large farms would account for a disproportionate share of crop-loss payments if there was no income limitation.

2002 Livestock Assistance Program (LAP 2002): It is estimated that over 31 million head of cattle, 3 million horses, and 2 million sheep are located within the affected states. The potential cost of the LAP 2002 before application of a national factor is estimated to be about $750 million. Because projected claims exceed the $250 million expected to be available for the program, each producer's payment will be prorated based on the ratio of the maximum allowed benefits to total claims. Payments will assist producers affected by disasters in meeting their financial obligations for income lost due to poor grazing conditions. It is assumed, in part as a result of the LAP, that producers affected by the disaster will remain in business. The impact of the payments on livestock prices and feed prices is expected to be small. For those producers who actually suffered the losses, the impact on their equity and cash flow positions is significant. In the absence of this program, some producers would have been forced to liquidate their herds, increasing livestock supplies and lowering prices in the short term. Changes are likely to be small and temporary. The projected impact on consumers is negligible. Aggregate farm income in 2002 is expected to be about $250 million higher.

Loan Rate Changes: The 2003 Act mandates that the same loan rate be set for each kind of other oilseed. This single loan rate must be $0.0960 per pound for the 2003 crop of each type of oilseed and $0.0930 per pound for the 2004 through 2007 crops of each type of oilseeds. Under the 2003 Act, loan rates increase for oil-type sunseed, rapeseed, canola, and flaxseed, but decrease for other-type sunseed mustard seed, and safflower comparted with the differentiated loan rates. CCC outlays for 2002 Act other oilseeds is expected to increase $20 million on average for the 2003 through 2007 crops as a result of the mandated single loan rate. Outlays for oil-type sunseed, other-type sunseed, canola, flaxseed, and rapeseed are expected to increase $22 million on average. The outlay increases will be partially offset by lower outlays for safflower and mustard seed compared with loan rates under the 2002 Farm Act, reducing CCC outlays by $1.9 million.

Adding Crambe and Sesame Seed to the List of Other Oilseeds: Annual crambe direct payments for the 2003 through 2007 crops are projected at $216,000, for a total $1.1 million over the 5-year period. Annual sesame seed direct payments are projected at $35,000, for a total of $175,000 for the remaining 5 years of the 2002 Act. No counter-cyclical payments are projected for crambe or sesame. Crambe is expected to generate loan program outlays of $166,000 during the 2003 and 2004 crop years. Sesame is not projected to generate any loan program outlays.

Treatment of Popcorn: It is estimated that direct and counter cyclical payments will increase $69 million for crop years 2002-2007 because corn payment acres will increase an estimated 239,000 acres. Outlays for the changes made by this rule are projected to be as follows.

This 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 (OMB).

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. RUS has determined that this rule meets the applicable standards provided in section 3 of the Executive Order. In addition, all State and local laws and regulations that are in conflict with this rule will be preempted; no retroactive effect will be given to this rule; and, in accordance with section 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)) administrative appeals procedures, if any, must be exhausted before an action against the Department or its agencies may be initiated.

It has been determined that the Regulatory Flexibility Act is not applicable to this rule since the Rural Utilities Service is not required by 5 U.S.C. 551 et seq. or any other provision of law to publish a notice of proposed rulemaking with respect to the matter of this rule.

The reporting and recordkeeping requirements contained in this rule have been approved by the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) under OMB control number 0572-0123.

This rule contains no Federal mandates (under the regulatory provisions of title II of the Unfunded Mandates Reform Act) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act.

The Administrator of RUS has determined that this rule will not significantly affect the quality of the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ). Therefore, this action does not require an environmental impact statement or assessment.

The program described by this rule is listed in the Catalog of Federal Domestic Assistance programs under number 10.850, Rural Electrification Loans and Loan Guarantees. This catalog is available on a subscription basis from the Superintendent of Documents, the United States Government Printing Office, Washington, DC 20402-9325, telephone number (202) 512-1800.

This rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. See the final rule related notice entitled, “Department Programs and Activities Excluded from Executive Order 12372” (50 FR 47034) advising that RUS loans and loan guarantees are not covered by Executive Order 12372.

On October 8, 2002, at 67 FR 62652, the Rural Utilities Service (RUS) published a proposed rule, 7 CFR parts 1710 and 1721, “Extensions of Payments of Principal and Interest,” which proposed to amend its regulation on extensions of payment of principal and interest to include a maximum interest rate a RUS Borrower can charge on deferments for programs relating to consumer loans. The maximum interest rate will not be more than 300 basis points above the average interest rate on the note(s) being deferred. This limit would allow the Borrower to offset all or part of the administrative costs involved. In addition, the proposed rule set forth the procedure for RUS Borrowers to request a section 12(a) extension for distributed generation projects. These changes were intended to clarify the procedures Borrowers are to follow when requesting extensions of payments of principal and interest.

Written comments on the proposed rule were received and they are summarized as follows:

RUS received comments dated December 4, 2002, from the National Rural Electric Cooperative Association (NRECA) and Central Electric Power Cooperative (CEPC), December 6, 2002, from Sandia National Laboratories (Sandia), and December 9, 2002, from Denetsosie Law Office on behalf of the Navajo Tribal Utility Authority (NTUA).

NRECA recommended that RUS amend §§ 1721.101(b) and 1721.106(a) to clarify the language and ensure that it is consistent by removing the reference to principal in the first sentence of these two sections. RUS should also remove the reference to “level payment” in § 1721.101(b). These changes would make the language consistent and would help to eliminate questions regarding repayment of deferred payments. RUS agrees with these comments and has made the change to the final rule wording under §§ 1721.101(b) and 1721.106(a).

NRECA, Sandia, and NTUA recommend revising the definition of “Off-grid renewable energy system” and NRECA and CEPC recommend revising the definition of “Renewable energy systems,” both to be more detailed. RUS is in agreement with these recommendations and has made the changes to the final rule wording under § 1710.2.

In addition, CEPC recommended that RUS give examples of the types of fuel that could qualify as renewable and stated it would also be beneficial to define the term “Green Power.” RUS determined that the definition is clearly inclusive of all types of biomass including the examples recommended by CEPC, so no change was made. CEPC also recommended that RUS define Green Power so those organizations that offer Green Power as part of an energy portfolio could do so with certainty regarding acceptable green fuel types to that make a part of their energy mix. RUS did not define the term “Green Power” in its definitions. The definition of Green Power would require a new rulemaking. Renewable energy is considered a type of distributed generation. Additional eligibility purposes for renewable energy are included in 7 CFR 1721.104(c).

There was a typographical error in § 1710.2, On-grid renewable energy system, definition. The word “consumer's” in the second sentence has been corrected to “customer's”.

The Federal Meat Inspection Act (FMIA) (21 U.S.C. 601 et seq. ), the Poultry Products Inspection Act (PPIA) (21 U.S.C. 451 et seq. ), and the Egg Products Inspection Act (EPIA) (21 U.S.C. 1031 et seq. ) provide for mandatory Federal inspection of livestock and poultry slaughter at official establishments, and meat and poultry processing at official establishments and egg products processing at official plants. FSIS bears the cost of mandatory inspection that occurs during an establishment or plant's regular hours of operation. Establishments and plants pay for inspection services performed on holidays or on an overtime basis.

In addition, under the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621 et seq. ) (AMA), FSIS provides a range of voluntary inspection, certification, and identification services to assist in the orderly marketing of various animal products and byproducts. These services include the certification of technical animal fats and the inspection of exotic animal products, such as antelope and elk. FSIS is required to recover the costs of voluntary inspection, certification, and identification services.

Under the AMA, FSIS also provides certain voluntary laboratory services that establishments and others may request the Agency to perform. Laboratory services are provided for four types of analytic testing: microbiological testing, residue chemistry tests, food composition tests, and pathology testing. FSIS must recover these costs.

Additionally, FSIS conducts an accreditation program for non-Federal analytical laboratories who are qualified under the Accredited Laboratory Program to conduct analyses of official meat and poultry samples. The Food, Agriculture, Conservation, and Trade Act of 1990, as amended, mandates laboratory accreditation fees that cover the costs of the Accredited Laboratory Program. The same Act mandates annual payment of the fees on the anniversary date of each accreditation.

Every year, FSIS reviews the fees that it charges for providing overtime and holiday inspection services; voluntary inspection, identification, and certification services; and laboratory services. The Agency performs a cost analysis to determine whether the fees that it has established are adequate to recover the costs that it incurs in providing these services. In the Agency's analysis of projected costs for January 12, 2003 to January 10, 2004, the Agency has identified increases in the costs of providing voluntary base time inspection services and overtime and holiday inspection services. FSIS has also identified decreases in the costs of providing laboratory services because of greater efficiencies. The Agency is not changing the annual fee it charges for the Accredited Laboratory Program.

FSIS calculated the new fees for base time and overtime and holiday inspection services by adding the projected increase in salaries and inflation for 2003 to the actual cost of the services in 2002. The national and locality pay raise for Federal employees was a 4.1 percent increase effective January 2003. The Agency calculated inflation to be 2.1% for 2003. Section 10703 of the 2002 Farm bill authorizes the Secretary of Agriculture to set the hourly rate of compensation for FSIS employees exempt from the Fair Labor Standards Act ( i.e. , veterinarians) working in establishments subject to the FMIA and PPIA at one and one-half times the employee's hourly rate of base pay. FSIS has adjusted the overtime fees to include the costs of time-and-a-half for all in-plant employees doing overtime work. Previously, veterinarians were limited to the time-and-a-half rate paid to employees at grade level GS-10, step 1. Finally, because of improvements in accessing data from the accounting system, the Agency has been able to estimate the employee benefits ascribable to overtime work and include these in the fee calculation. These costs were formerly only included in the base rate.

The previous and new fees are listed by type of service in Table 1.

The differing proposed fee increase for each type of service is the result of the different amount that it costs FSIS to provide these three types of services. The differences in costs stem from various factors, including different salary levels of the program employees who perform the services. See Table 2.

The Agency must recover the actual cost of the services covered by this final rule. These fee increases are essential for the continued sound financial management of the Agency's costs. FSIS announced in its February 26, 2003, proposed rule [68 FR 8858] the fee changes provided for in this final rule. The Agency believes that adequate notice has been given to affected parties. The Administrator has determined that these amendments should be effective less than 30 days after publication in the Federal Register in order for FSIS to recover the costs of the services provided and reduce the possibility of monetary loses for the Agency. Therefore, the changes in fees will be effective on June 29, 2003.

FSIS published a proposed rule [68 FR 8858] on February 26, 2003, stating that it was proposing changing fees for inspection services for CY 2003. The Agency provided for a thirty day comment period, ending March 28, 2003. FSIS received two comments on the proposed rule; one from a government employee and one from an industry group.

Comment: The Government commenter said that changes made in the administration of the Accredited Laboratory Program have depleted the surplus of funds in the Accredited Laboratory Program account. Consequently, the Agency should not decrease the amount it charges for the Accredited Laboratory Program.

Response: The Agency agrees with the comment and, therefore, will not amend its regulations to decrease the fee charged Accredited Laboratories.

The industry commenter raised several objections to raising fees for voluntary inspection services.

Comment: Contrary to the Agency's assertion, the increase for overtime and holiday inspection service is well beyond what the industry would anticipate for inflation and wage increases.

Response: The increase in fees result from inflation and greater salary costs that are not dissimilar to industry's. FSIS will now be reimbursing veterinarians a full time and half over their base rate of pay for holiday and overtime. This accounts in part for the size of the increase for overtime and holiday pay. The change in holiday and overtime pay for veterinarians was authorized by the 2002 Farm Bill.

Comment: FSIS has not considered the incremental cost per pound for mandatory overtime and holiday inspection.

Response: FSIS has considered the incremental cost per pound and acknowledges that it will differ from establishment to establishment, depending upon how much overtime and holiday inspection they use, and whether they use voluntary inspection services. This has been discussed in the economic analysis.

Comment: More information is needed to fully assess the economic impact of the proposed increases.

Response: The Agency believes it has presented adequate information to explain the assessment of the economic impact of the fee increases.

Comment: Automatic fee increases for mandatory inspection eliminate any pressure to optimize the use of limited inspection services.

Response: FSIS appropriations do not cover voluntary inspection services or overtime and holiday inspection services. The Agency is required by statute to recover the full cost of voluntary and overtime and holiday inspection services.

Comment: FSIS should fulfill its goal of implementing risk-based inspection and eliminate fees for overtime and holiday inspection.

Response: FSIS is moving toward a more risk-based allocation of inspection resources. However, a risk-based inspection approach does not mean the elimination of holiday and overtime inspection fees. These fees are required by statute.

Because this final rule has been determined to be not significant, the Office of Management and Budget (OMB) did not review it under Executive Order 12866.

The Administrator, FSIS, has determined that this final rule will not have a significant economic impact, as defined by the Regulatory Flexibility Act (5 U.S.C.601), on a substantial number of small entities.

Establishments and plants that seek FSIS services are likely to have calculated that the incremental costs of overtime and holiday inspection services will be less than the incremental expected benefits of additional revenues that they would realize from additional production.

As a result of the new fees, the Agency expects to collect an estimated $119 million in revenues for 2003, compared to $101 million under the previous fee structure. The costs that industry will experience by the raise in fees are similar to other increases that the industry faces because of inflation and wage increases.

The total volume of meat and poultry slaughtered under Federal inspection in 2001 was about 83 billion pounds (Livestock, Dairy, Meat, and Poultry Outlook Report, Economic Research Service, USDA, August 15, 2002). The total volume of U.S. egg product production in 2001 was about 2.319 billion pounds (2002 Agriculture Statistics, USDA). The increase in cost per pound of product associated with the new fees increases is, in general, $.0002. Even in competitive industries like meat, poultry, and egg products, this amount of increase in costs would have an insignificant impact on profits and prices.

The industry is likely to pass through a significant portion of the new fee increases to consumers because of the inelastic nature of the demand curve facing these firms. Research has shown that consumers are unlikely to reduce demand significantly for meat and poultry products, including egg products, when prices increase. Huang estimates that demand would fall by .36 percent for a one percent increase in price (Huang, Kao S., A Complete System of U.S. Demand for Food. USDA/ERS Technical Bulletin No 1821, 1993, p.24). Because of the inelastic nature of demand and the competitive nature of the industry, individual firms are not likely to experience any change in market share in response to an increase in inspection fees.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This final rule: (1) preempts 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. However, the administrative procedures specified in 9 CFR 306.5, 381.35, and 590.300 through 590.370, respectively, must be exhausted before any judicial challenge of the application of the provisions of this proposed rule, if the challenge involves any decision of an FSIS employee relating to inspection services provided under the FMIA, PPIA, or EPIA.

Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to better ensure that minorities, women, and persons with disabilities are aware of this final rule, FSIS will announce it and make copies of this Federal Register publication available through the FSIS Constituent Update. FSIS provides a weekly Constituent Update, which is communicated via Listserv, a free e-mail subscription service. In addition, the update is available on-line through the FSIS Web page located at http://www.fsis.usda.gov. The update is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, public meetings, recalls, and any other types of information that could affect or would be of interest to our constituents/stakeholders. The constituent Listserv consists of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals that have requested to be included. Through the Listserv and Web page, FSIS is able to provide information to a much broader, more diverse audience than would otherwise be possible.

For more information contact the Congressional and Public Affairs Office, at (202) 720-9113. To be added to the free e-mail subscription service (Listserv) go to the “Constituent Update” page on the FSIS Web site at http://www.fsis.usda.gov/oa/update/update.htm. Click on the “Subscribe to the Constituent Update Listserv” link, then fill out and submit the form.

The base time rate for voluntary inspection services of egg products is $43.64 per hour per program employee.

The Board published a final rule in the Federal Register of May 28, 2003, that amended the Federal Reserve Bank and Federal Home Loan Bank routing information listed in appendix A of Regulation CC, effective July 28, 2003. The supplementary information for this final rule also included detailed information about an upcoming series of amendments to appendix A that will reflect the transfer of check processing activities within the Federal Reserve system. The Board specifically described which routing symbols in appendix A would be affected by the upcoming restructuring, indicating both the current office to which each affected routing symbol is assigned and the office to which it will be assigned after the restructuring. Inadvertently, the Board omitted from this supplementary information two routing symbols that will be transferred from the Richmond head office to the Baltimore branch. This document corrects the error by adding the two previously omitted routing symbols, 0514 and 2514, to the Baltimore branch routing symbol list in the supplementary information.

In the final rule, FR Doc. 03-13030 (68 FR 31592 (May 28, 2003)), make the following corrections in the SUPPLEMENTARY INFORMATION section. On page 31595, in the first column, replace routing symbol list 3. with the following:

The operations of the Richmond head office will be transferred such that banks with the following Federal Reserve routing symbols will be local to the Baltimore branch:

The Ente Nazionale per l'Aviazione Civile (ENAC), the airworthiness authority for Italy, notified the FAA that an unsafe condition may exist on Agusta A 109K2 helicopters. ENAC advises that checks/inspections are required to verify the presence of cracks on the blades, part number (P/N) 109-8132-01-107.

Agusta has issued Alert Bollettino Tecnico No. 109K-35, dated May 13, 2003 (ABT), which specifies checks/inspections to verify the possible presence of cracks on the upper and lower surfaces of blades having accumulated 1,500 or more operating hours. ENAC classified this ABT as mandatory and issued AD N.2003-169, dated May 16, 2003, to ensure the continued airworthiness of these helicopters in Italy.

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

This unsafe condition is likely to exist or develop on other Agusta Model A109K2 helicopters of the same type design registered in the United States. Therefore, this AD is being issued to detect fatigue cracks on the blades, which could result in loss of the blades and loss of control of the helicopter. This AD requires:

• Visually checking the upper and lower surfaces of the blades for cracks prior to each start of the helicopter engines.

• Visually inspecting the blades using a 5x or higher magnifying glass before the first flight of each day, and thereafter at intervals not to exceed 5 hours time-in-service (TIS), and anytime an increase in vibration levels occurs.

• Inspecting the blades using a dye-penetrant method after each of the visual inspections in which you used a 5x or higher magnifying glass if you are unable to determine by the visual inspection whether there is a crack.

• Replacing any cracked blade with an airworthy blade before further flight. The actions must be done in accordance with the ABT described previously. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability and structural integrity of the helicopter. Therefore, the visual checks, visual inspections, dye-penetrant inspections, if necessary, and replacing any cracked blade are required before further flight or within 5 hours TIS, as indicated, and this AD must be issued immediately.

The visual check required by paragraph (a) of this AD may be performed by an owner/operator (pilot) holding at least a private pilot certificate, but must be entered into the aircraft records showing compliance in accordance with 14 CFR 43.11 and 91.417(a)(2)(v). This AD allows a pilot to perform this check because it involves only a visual check for a crack in a surface of the blade, and can be performed equally well by a pilot or a mechanic.

The unsafe condition described previously is likely to exist or develop on other helicopters of the same type design registered in the United States. Therefore, this AD is being issued to detect a fatigue crack on the blades, which could result in loss of the blades and loss of control of the helicopter.

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

The FAA estimates that this AD will affect 5 helicopters, and the inspections and replacement will take approximately 2.5 work hours to accomplish at an average labor rate of $60 per work hour. Required parts will cost approximately $20,000 per helicopter. Based on these figures, the total estimated cost impact of the AD on U.S. operators is $100,750, assuming all blades are replaced one time.

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

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

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2003-SW-26-AD.” The postcard will be date stamped and returned to the commenter.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by revising AD 97-18-02, Amendment 39-10112 (62 FR 45309, August 27, 1997), which is applicable to Hartzell Propeller Inc. ( )HC-( )(2,3)(X,V)( )-( ) series and HA-A2V20-1B series propellers with aluminum blades was published in the Federal Register on January 2, 2003 (68 FR 71). That action proposed to revise AD 97-18-02 by introducing as an optional terminating action for the initial and repetitive inspections of that AD, replacement of affected propellers with Hartzell Propeller Inc. model “MV” series propellers.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

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.

The Rule

Airspace Docket 01-ANM-16, published on May 7, 2003 (68 FR 24341), established Class E Airspace at Richfield Municipal Airport, Richfield, UT effective date of May 7, 2003. This action changes the effective date to September 4, 2003, to allow sufficient time for airspace charting and publication to coincide with public access to the RNAV procedures at Richfield Municipal Airport, Richfield, UT.

The effective date on Airspace Docket No. 01-ANM-16 is hereby corrected to September 4, 2003.

In FR Doc. 03-9380, appearing on page 18869 in the Federal Register of Thursday, April 17, 2003, the following correction is made:

On page 18881, in the first column, in § 310.545 Drug products containing certain active ingredients offered over-the-counter (OTC) for certain uses , in paragraph (d)(1), in line 8, “(a)(18)(i)(A) of this section” is corrected to read “(a)(18) of this section (except as covered by paragraph (d)(22) of this section).”

What Is the Legislative Background of the T Visa?

Section 107 of Public Law 106-386 (October 28, 2000), the Trafficking Victims Protection Act of 2000 (TVPA), created a new nonimmigrant classification (T) for aliens (and in certain instances, their immediate family members) whom the Secretary for Homeland Security has determined are victims of a “severe form of trafficking in persons”. The TVPA in section 103(8) defines a “severe form of trafficking in persons” as either: (A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age, or (B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. Family members of victims may also be granted T status if the Secretary for Homeland Security has determined that granting such status would avoid extreme hardship. Because under the TVPA principal applicants for T status must be in the United States, American Samoa or the Commonwealth of Mariana Islands, or at a port of entry thereto, consular officers will not be issuing visas to principal (T1) aliens. Therefore, this rule only concerns visa issuance to derivative family members (T2, T3 or T4).

The Department of Justice regulation published January 31, 2002 [67 FR 4784] describes in detail how an alien can qualify for T1 status under 101(a)(15)(T) of the Immigration and Nationality Act (INA), as added by the TVPA. In addition to meeting the definition of “victim”, an alien whom the Secretary for Homeland Security has identified as a “victim” must also be: (1) Physically present in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or a port of entry thereto on account of trafficking in such persons; (2) if 15 years of age or older, must have complied with any reasonable request for assistance to law enforcement in the investigation or prosecution of acts of trafficking; and (3) must be likely to suffer extreme hardship involving unusual and severe harm upon removal.

An alien granted T1 status may also seek derivative status for certain family members who are accompanying or following to join the alien if he or she can demonstrate that the removal of those family members from the United States (or failure to admit the family members to the United States) would result in extreme hardship. In such cases, the Secretary for Homeland Security may, if it is necessary to avoid extreme hardship, permit the spouse, children and, if the principal alien is under age 21, parents to accompany or follow to join the principal alien.

A T2, T3, or T4 visa may be issued for a maximum period of three years to run concurrently with the validity period of the T1. The derivative's status cannot be issued for a period that extends beyond the validity period of the principal's T1 status.

T visa applicants are subject to all grounds of inadmissibility under INA 212(a). An alien found inadmissible under INA 212(a) may not be granted T nonimmigrant status unless the ground of inadmissibility is waived under either INA 212(d)(3) or INA 212(d)(13). Additionally, the TVPA creates a new ground of inadmissibility, INA 214(n), if there is substantial reason to believe that the alien has committed a severe form of trafficking in persons. Inadmissibility under INA 214(n) may not be waived.

The publication of this rule as an interim rule is based upon the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). Publication of this regulation as an interim rule will expedite implementation of TVPA, which took effect on October 28, 2000. The expeditious promulgation of these regulations provides for protection and assistance to victims of severe forms of trafficking in persons and their close family members, and delay in issuing these regulations would be contrary to the public interest.

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $1 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign based companies in domestic and import markets.

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.

This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Electronic Access

Internet users may access all comments received by the U.S. DOT Docket Facility, Room PL-401, by using the universal resource locator (UAL) http://dms.dot.gov. It is available 24 hours each day, 365 days each year. Please follow the instructions online for more information and help.

An electronic copy of this document may be downloaded by using a computer, modem and suitable communications software, from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may reach the Office of the Federal Register's Home page at: http://www.archives.gov and the Government Printing Office's Web page at: http://www.access.gpo.gov/nara .

On June 22, 2001, the FHWA received a petition from the U.S. Department of the Army (DA) to amend 23 CFR 658.13 to include as “specialized equipment” dromedary-equipped truck tractor-semitrailer combination vehicles, when transporting Class 1 explosives  1 for the DOD in compliance with the U.S. DOT's hazardous material regulations found at 49 CFR 177.835. A copy of the petition was included in FHWA Docket No. FHWA-2002-11819. The motivation for the petition and a summary of events leading up to its submission, was provided in a notice of proposed rulemaking (NPRM) published on October 23, 2002 (67 FR 65056).

In response to the Army's request, we proposed to amend our regulation on truck size and weight to address the issue of dromedary equipped truck tractors for munitions carriage by providing a specialized equipment designation for the combination vehicle in question. Specificially, we proposed that a truck tractor equipped with a dromedary unit operating in combination with a semitrailer was proposed to be designated “specialized equipment,” when transporting Class 1 explosives, and/or any munitions related security material, as specified by the DOD in compliance with 49 CFR 177.835. This designation would require States to allow operation of this combination on the National Network (NN), and provide reasonable access between the NN and service facilities and terminals. In order to accommodate the typical equipment in use today for this type of operation, the proposal included a requirement that all States allow these combinations up to an overall length of 75 feet.

This designation would apply only to dromedary-equipped truck tractor-semitrailer combination vehicles directly used in carrying munitions for the DOD. When operating empty, while returning from a delivery, the designation would continue to apply if the carrier can document that hauling munitions is the company's business, or that the most recent load consisted of a qualifying munitions or sensitive load. The designation would not apply if any other cargo were being carried in either the semitrailer or dromedary unit. For those instances, the combination would no longer be considered “specialized equipment,” and would become subject to State regulations for drom equipped truck truck-semitrailers.

We received eight sets of comments to the docket. Of the eight commenters, we received four from motor carriers, (Tri State Motor Transit Company (TSMT), Landstar System, Carrier Group), Extreme Transportation Inc., and Baggett Transportation Company; two from States, (Connecticut and Missouri); Military Traffic Management Command (MTMC), and the American Trucking Association (ATA). For the most part, all comments were in favor of the proposed change.

The State of Connecticut stated in its response to the proposal that “dromedary equipped truck tractor-semitrailers having an overall length not to exceed 75 feet may legally operate in the State of Connecticut and adding them as “specialized equipment” under 23 CFR 658 would not be in conflict with existing State laws.”

The TSMT suggested that the most efficient way to transport non-compatible explosives to the end user (troops in the field) is through the use of dromedary equipment. It stated that the use of the dromedary equipment requires only one vehicle to transport the non-compatible explosives. Therefore, using a vehicle equipped with a dromedary box reduces the number of vehicles (tractor/trailers) on the nation's highways. The TSMT also indicated that it is a proponent of security, safety, and compliance and views this revision as a way to enhance its operation in these areas.

Landstar System Carrier Group, one of the Nation's largest truckload carriers and one of the principal motor carriers involved with the Department of Defense movements agreed with the proposed changes. Landstar cited delays in the accqusition of permits and inspections of its vehicles at the roadside, while moving critical arms, ammunition and explosives in support of our Nation's fighting forces. It indicated that including, as “specialized equipment,” dromedary-equipped truck-tractor-semitrailer combination vehicles when transporting Class 1 explosives for the DOD is, in its opinion, the proper decision.

Extreme Transportation Inc. and Baggett Transportation Company both fully support designating dromedary equipped truck tractors for munitions carriage by DOD carriers as “specialized equipment.” Furthermore, both carriers support the notion that the 75 feet length restriction should apply to all dromedary equipped vehicles. The U.S. Department of the Army's (DA) June 22, 2001, petition to the FHWA was very specific. The DA asked to include as “specialized equipment” dromedary-equipped truck tractor-semitrailer combination vehicles, when transporting Class 1 explosives for the DOD. The designation of all dromedary-equipped truck tractor-semitrailers as “specialized equipment” was not included in the DA petition and is outside the scope of this rulemaking.

The ATA commended the FHWA for its comprehensive discourse and framing of the dromedary subject. Furthermore, the ATA indicated that it strongly supports the proposed change, as set forth in the NPRM. However, the ATA did suggest one modification which reads as follows: “The designation would not apply if any other cargo were being carried in either the semitrailer or dromedary unit.” The ATA explained that the DOD ships many items which DOD (or other Federal agencies) deems to be sensitive, but which are not strictly an Arms, Ammunition and Explosives (AA&E) item or, as stated in the language of the NPRM, “* * * and/or any munitions related security material, as specified by DOD in compliance with 49 CFR 177.835.” Therefore, the ATA requested that the final rule also specify as excludable “freight deemed sensitive by the United States Government.” This would be in keeping with long-standing practices used by both carriers and their DOD customers, and would clarify the definition of permissible cargo shipped via subject vehicles.

The ATA argued that, without this expanded designation, if a dromedary-equipped truck were to include an item containing sensitive technology (such as a computer) on that same vehicle, and the item were not specifically associated with AA&E cargo, the new vehicle designation of “specialized equipment” would not apply, and the benefits noted above would be forfeited. The ATA expressed concern that this situation did not make sense because the computer with sensitive technology and the AA&E item both require DOD-specified protective services, and it would be necessary to order an additional motor carrier service to ship the security sensitive computer. Specifying, “freight deemed sensitive by the United States Government” would protect these shipments from localized arbitrary enforcement activities.

The ATA may be correct in assuming that the expanded designation of the allowable cargo, “freight deemed sensitive by the United States Government” may help accomplish DOD's overarching transportation capacity goals. However, the DOD's petition was quite specific and narrow in scope in requesting that dromedary equipped truck tractor-semitrailer combination vehicles, when transporting Class 1 explosives and/or any munitions related security material as specified by the U.S. Department of Defense be defined as “specialized equipment.” Unfortunately, the issue of “freight deemed sensitive by the United States Government” was not addressed in the NPRM and we believe it to be outside the scope of this rulemaking. In addition, the term, “freight deemed sensitive by the United States Government” is too broad in scope, would be too difficult to define, and would impose complicated requirements. For these reasons, we have decided not to expand the definition of allowable cargo to include “freight deemed sensitive by the U.S. government.” We believe that the language proposed in the NPRM is sufficient to aid the DOD in the shipment of munitions cargo.

The MTMC submitted to the docket all the historical information relating to this subject matter, as explained briefly in the Background section. The FHWA believes that by including dromedary-equipped truck tractor-semitrailer combination vehicles carrying military munitions, as “specialized equipment” it will help the DOD, specifically the Department of the Army (DA), expedite the movement of munitions for the military, especially in times of national emergency.

All eight commenters are in favor of amending the FHWA regulation on truck size and weight to include within the definition of “specialized equipment” dromedary equipped truck tractor-semitrailer combination vehicles, when transporting Class 1 explosives and/or any munitions related security material as specified by the U.S. Department of Defense (DOD) in compliance with 49 CFR 177.835. There were several requests to allow all dromedary equipped truck tractor-semitrailer combinations up to an overall length of 75 feet to transport general freight. Several commenters requested that the FHWA limit the length of the semitrailer to 53 feet and remove the overall length requirement of 75 feet. We believe these recommendations to be outside the scope of this rulemaking. Therefore, with the exception of one additional phrase, this final rule will contain the same regulatory language provided in a notice of proposed rulemaking (NPRM) published on October 23, 2002 (67 FR 65056). The phrase “in compliance with 49 CFR 177.835” will appear following “as specified by the U.S. Department of Defense” in part 658.5 Definitions and part 658.13 Length in this final rule. This additional statement makes clear that anything related to the munitions that are required to be segregated from those munitions in compliance with 49 CFR 177.835 will receive the benefit of the “specialized equipment” designation.

We have determined that this final rule is a significant regulatory action within the meaning of Executive Order 12866 and the U.S. DOT regulatory policies and procedures. This action comes in response to a request from, and will directly affect activities under the direct control, of the U.S. Department of Defense: supplying munitions to the military. This final rule will improve the shipment of munitions by standardizing the regulatory control that States apply to the vehicles typically used for this activity. The anticipated result will be an improvement in the efficiency with which munitions are shipped. This potential improvement will aid the national security effort with respect to the armed forces, as well as activities associated with homeland security.

This final rule provides, at the Federal level, a regulatory standard that already exists in many States. Although it potentially preempts restrictions imposed by 23 States, it would not affect any State's ability to discharge a traditional State government function, i.e., issuing citations to illegally overlength vehicles.

The vehicles covered by this final rule are already operating in most States, and will not have to be modified in any way to achieve compliance. Accordingly, the anticipated annual economic effect of this rulemaking will be negligible. This action will not have an adverse effect on any other governmental agency, any level of government, the industry, or the public, nor will it change any compliance or reporting requirements that already exist.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the FHWA has evaluated the effects of this final rule on small entities and has determined that the action will not have a significant economic impact on a substantial number of small entities.

This action has been analyzed in accordance with the principles and criteria contained in Executive order 13132, dated August 4, 1999, and the FHWA has determined that this action has sufficient federalism implications to warrant the preparation of a Federalism summary impact statement.

This final rule will provide a consistent national regulation applying only to vehicles hauling munitions for the Department of Defense in support of military activities. This final rule is based on the authority provided by 49 U.S.C. 31111(g) that allows the Secretary to make the decisions necessary to accommodate specialized equipment. The FHWA has also determined that, while this action will preempt any inconsistent State law or State regulation, it will not affect the State's ability to discharge traditional State government functions. The States would continue to be able to enforce length restrictions against these vehicles. What might change, however, depending on existing State law, would be the threshold at which an enforcement action is taken.

By allowing the vehicle described in this final rule to transport munitions, the total number of trucks needed to perform this task would be reduced. This reduction, in turn, improves the safety climate on the highway system and in a small way slows infrastructure wear. Less than half of the States (23) will be affected by this rule, and of those 23 States only 3 States fluctuate enforcing for overlength for the combination vehicle covered by this rulemaking. The additional 28 States allow this combination to operate in its State.

However, due to the needs of the military and the nature of the cargo, it is imperative that all States allow the combination vehicle under discussion to operate. Even if only one or two States can prohibit, or deter this vehicle and its cargo, timely support of the military can be severely impacted.

Consultation with States over this issue has occurred in past years. In February 1991, as a result of the activities surrounding the Desert Shield/Desert Storm campaign, the FHWA issued an emergency rule allowing the use of dromedary units to transport munitions (56 FR 4164, February 1, 1991) for many of the same reasons used in support of the current petition. That rule was in effect for 6 months, and was not renewed for various reasons deemed important in responding to the conditions at that time. After the emergency rule expired, in place of a regulatory solution the FHWA urged all States and in particular those where enforcement actions were taking place to recognize the importance of the situation, and to try and accommodate munitions haulers in some manner. According to the DOD's petitions, this “persuasion” method appeared to work, at least for a few years into the mid-1990's. As this verbal agreement method of handling the issue began to breakdown, a few States again began to enforce length rules on these combinations, causing interruptions in munitions delivery. While inconvenient, these actions did not become critically disruptive until the current activities aimed at terrorist actions around the world became a national priority.

Additionally, the FHWA solicited input on the Federalism implications of the rule from the National Governors' Association (NGA) as a representative for the State officials. On May 9, 2002, we sent a letter to the NGA seeking comment on any Federalism implications of our proposed changes to 23 CFR 658. Having received no responses, we published the NPRM on October 23, 2002, specifically soliciting comment on any Federalism issues associated with our proposed rule. We did not receive any comments to the docket addressing the issue of Federalism. On December 9, 2002, we sent a follow up letter to the NGA, again seeking comment on any Federalism implications to this final rule. To date, we have received no responses or indication of concerns about the Federalism implications of this rulemaking action from the NGA.

Catalog of Federal Domestic Assistance Programs Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq. ), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this final rule does not contain collection of information requirements for the purposes of the PRA.

This final rule will not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This final rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (2 U.S.C. 1532). This final rule does not add any regulatory requirement that will require any expenditure by any private sector party, or governmental agency.

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

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

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

The Agency has analyzed this action for the purposes of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq. ) and has determined that this action will not have any effect on the quality of the environment.

The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that this action will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs in Indian tribal governments; and will not preempt tribal law. Therefore, a tribal summary impact statement is not required.

We have analyzed this final rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a significant energy action under that order because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this section with the Unified Agenda.

A proposed rule was published on April 3, 2003, at 68 FR 16249. No comments were received; therefore, the rule is being adopted as final.

It has been determined that Privacy Act rules for the Department of Defense are not significant rules. The rules do not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.

It has been determined that Privacy Act rules the Department of Defense do not have significant economic impact on a substantial number of small entities because they are concerned only with the administration of Privacy Act systems of records within the Office of the Inspector General of the Department of Defense.

It has been determined that Privacy Act rules for the Department of Defense impose no information requirements beyond the Office of the Inspector General and that the information collected within the Office of the Inspector is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974.

It has been determined that Privacy Act rulemaking for the Department of Defense 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 the Privacy Act rules for the Department of Defense do not have federalism implications. The rules do 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.

It has been determined that Privacy Act rules for the Department of Defense are not significant rules. The rules do not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in this Executive order.

It has been determined that Privacy Act rules for the Department of Defense do not have significant economic impact on a substantial number of small entities because they are concerned only with the administration of Privacy Act systems of records within the Department of Defense.

It has been determined that Privacy Act rules for the Department of Defense impose no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974.

It has been determined that the Privacy Act rulemaking for the Department of Defense 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 the Privacy Act rules for the Department of Defense do not have federalism implications. The rules do 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.

Pursuant to its authorities in section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and chapter XIX, of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3) the Corps is amending the restricted area regulations in 33 CFR part 334 by adding section 334.102 to establish a restricted area in waters adjacent to Naval Weapons Station Earle at Sandy Hook Bay, Township of Middletown, New Jersey.

This amendment will close off an open area in Sandy Hook Bay within the following coordinates: latitude 40°25′55.6″ N, longitude 074°04′31.4″ W; thence to latitude 40°26′54.0″ N, longitude 074°03′53.0″ W; thence to latitude 40°26′58.0″ N, longitude 074°04′03.0″ W; thence to latitude 40°27′56.0″ N, longitude 074°03′24.0″ W; thence to latitude 40°27′41.7″ N, longitude 074°02′45.0″ W; thence to latitude 40°28′23.5″ N, longitude 074°02′16.6″ W; thence to latitude 40°28′21.2″ N, longitude 074°01′56.0″ W; thence to latitude 40°28′07.9″ N, longitude 074°02′18.6″ W; thence to latitude 40°27′39.3″ N, longitude 074°02′38.3″ W; thence to latitude 40°27′28.5″ N, longitude 074°02′10.4″ W; thence to latitude 40°26′29.5″ N, longitude 074°02′51.2″ W; thence to latitude 40°26′31.4″ N, longitude 074°02′55.4″ W; thence to latitude 40°25′27.1″ N, longitude 074°03′39.7″ W longitude; and thence along the shoreline to the point of origin (NAD 83).

These coordinates correct a small error in the coordinates in the proposed notice, but the change to the size and shape of the restricted area is considered to be negligible. The Department of the Navy plans to install buoys along these coordinates to outline the Restricted Area. These regulations are necessary to safeguard Navy vessels and United States Government facilities from sabotage and other subversive acts, accidents, or incidents of similar nature. These regulations are also necessary to protect the public from potentially hazardous conditions which may exist as a result of Navy use of the area.

This rule is issued with respect to a military function of the Defense Department and the provisions of Executive Order 12866 do not apply.

This rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354) which requires the preparation of a regulatory flexibility analysis for any regulation that will have a significant economic impact on a substantial number of small entities ( i.e. , small businesses and small governments). The U.S. Army Corps of Engineers expects that the economic impact of this restricted area would have practically no impact on the public, no anticipated navigational hazard or interference with existing waterway traffic and accordingly, certifies that this amendment will have no significant economic impact on small entities.

The New York District has prepared an Environmental Assessment (EA) for this action. We have concluded, based on the minor nature of this change to the restricted area regulations, that this action will not have a significant impact to the quality of the human environment, and preparation of an Environmental Impact Statement (EIS) is not required. The EA may be reviewed at the New York District office listed at the end of FOR FURTHER INFORMATION CONTACT , above.

This rule does not impose an enforceable duty among the private sector and, therefore, is not a Federal private sector mandate and is not subject to the requirements of section 202 or 205 of the Unfunded Mandates Act. We have also found under section 203 of the Act, that small governments will not be significantly and uniquely affected by this rulemaking.

Pursuant to section 801(a)(1)(A) of the Administrative Procedure Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, the Army has submitted a report containing this rule to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the General Accounting Office. This rule is not a major rule within the meaning of section 804(2) of the Administrative Procedure Act, as amended.

Pursuant to its authorities in section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and chapter XIX, of the Army Appropriations Act of 1919 (40 Stat .892; 33 U.S.C. 3) the Corps is amending the restricted area regulations in 33 CFR part 334 by adding a restricted area at 334.865. The restricted area is being established for safety and security purposes in support of accommodating the homeport of a third aircraft carrier at NASNI. The restricted area is adjacent to a current U.S. Coast Guard security zone, which is enclosed by latitude/longitude coordinates: 32°42′52.5″ N, 117°11′45.0″ W; 32°42′55.3″ N, 117°11′45.0″ W; 32°42′55.0″ N, 117°11′30.5″ W; 32°42′40.0″ N, 117°11′06.5″ W; 32°42′37.2″ N, 117°11′06.8″ W; 32°42′28.5″ N, 117°11′11.0″ W; 32°42′21.5″ N, 117°10′47.7″ W; and 32°42′13.1″ N, 117°10′51.2″ W. The connection of the restricted area with the security zone will occur at the following coordinates: 32°42′55.0″ N, 117°11′30.5″ W and 32°42′40.0″ N, 117 °11′06.5″ W.

This rule is issued with respect to a military function of the Defense Department and the provisions of Executive Order 12866 do not apply.

This rule has been reviewed under the Regulatory Flexibility Act (Public Law 96-354) which requires the preparation of a regulatory flexibility analysis for any regulation that will have a significant economic impact on a substantial number of small entities ( i.e. , small businesses and small governments). The Corps expects that the economic impact of this new restricted area would have practically no impact on the public, no anticipated navigational hazard or interference with existing waterway traffic and accordingly, certifies that this rule will have no significant economic impact on small entities.

The Los Angeles District has prepared an Environmental Assessment (EA) for this action. The district has concluded, based on the minor nature of the addition of this restricted area, that this action will not have a significant impact to the quality of the human environment, and preparation of an Environmental Impact Statement (EIS) is not required. The EA may be reviewed at the Los Angeles District office listed at the end of FOR FURTHER INFORMATION CONTACT , above.

This rule does not impose an enforceable duty among the private sector and, therefore, is not a Federal private sector mandate and is not subject to the requirements of section 202 or 205 of the Unfunded Mandates Act. We have also found under section 203 of the Act, that small Governments will not be significantly and uniquely affected by this rulemaking.

Pursuant to section 801(a)(1)(A) of the Administrative Procedure Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, the Army has submitted a report containing this rule to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the General Accounting Office. This rule is not a major rule within the meaning of section 804(2) of the Administrative Procedure Act, as amended.

I. Background

On November 9, 1998 as amended on March 1, 2001, the Pennsylvania Department of Environmental Protection (PADEP), on behalf of the Allegheny County Health Department (ACHD), submitted a revision to the State Implementation Plan (SIP). The SIP revision consists of a state operating permitting program for sources of air pollution in Allegheny County. The SIP revision contains a regulation to implement a state operating permit program that provides a procedural and legal basis for the issuance of federally enforceable operating permits. Pennsylvania also requested approval of Allegheny County's state operating permit program pursuant to section 112(l) of the Clean Air Act.

Federally enforceable state operating permits (FESOPs) may be used to establish emission standards and other source-specific regulatory requirements for stationary sources of air pollution. FESOPs are frequently employed by permitting authorities to accomplish one or more of the following objectives: To designate a source as a synthetic minor source with regard to applicability of Federal requirements and standards, such as new source review; to combine a source's requirements under multiple permits into one permit; to implement emissions trading requirements; to cap the emissions of a source contributing to a violation of any air quality standard; or, to establish a source-specific emission standard or other requirements necessary to implement the federal Clean Air Act or state air statutes and regulations.

On December 6, 1999, EPA proposed approval of the permit program (64 FR 68066). The ACHD subsequently revised its regulations on August 15, 2000, effective January 12, 2001. These revisions improve the ACHD permitting programs. EPA has withdrawn the previous proposal (64 FR 68066) and is approving the FESOP program submitted on November 9, 1998, as amended on March 1, 2001.

On June 28, 1989, EPA amended the definition of “federally enforceable” to clarify that terms and conditions contained in state-issued operating permits are federally enforceable for purposes of limiting a source's maximum potential emission rates or potential-to-emit (PTE). This is true provided that the state's operating permit program is approved into the SIP under section 110 of the Clean Air Act as meeting certain conditions, and provided that the permit conforms to the requirements of the approved program. The conditions for EPA approval discussed in the June 28, 1989 notice establish five criteria for approving a state operating permit program. (See, 54 FR 27274-27286.) The following describes each of the criteria for approval of a state operating permit program for the issuance of federally enforceable operating permits for purposes of limiting a source's PTE and how the ACHD's SIP submittal satisfies those criteria.

Criterion 1. The state operating permit program i.e., the regulations or other administrative framework describing how such permits are issued) must be submitted to and approved by EPA as a SIP revision. On November 9, 1998 as amended on March 1, 2001, the Commonwealth of Pennsylvania submitted an administratively and technically complete SIP revision request for approval of Allegheny County Health Department's operating permit program. The permit program, Article XXI, Parts B and C, provide the framework for permit issuance.

Criterion 2. The SIP revision must impose a legal obligation that operating permit holders adhere to the terms and limitations of such permits (or subsequent revisions of the permit made in accordance with the approved operating permit program) and provide that permits which do not conform to the operating permit program requirements and the requirements of EPA's underlying regulations may be deemed not “federally enforceable” by EPA. The permit program requires in Article XXI, section 2103.12.f.1 and 2103.10.c.3, the legal obligation to comply with terms and conditions of any permit.

Criterion 3. The state operating permit program must require that all emission limitations, controls, and other requirements imposed by such permits will be at least as stringent as any applicable limitations and requirements contained in the SIP, or enforceable under the SIP, and that the program may not issue permits that waive, or make less stringent, any limitations or requirements contained in or issued pursuant to the SIP, or that are otherwise “federally enforceable” e.g. standards established under sections 111 and 112 of the Clean Air Act). Article XXI, section 2103.12.a.C. states that the conditions of the permit must provide for and require compliance with all applicable requirements. Section 2103.12.g states that all permits shall include standard emissions limit requirements. Additionally, if an alternative emission limit is provided, section 2103.g.2 requires that it must be demonstrated to be equivalent to or more stringent than the applicable limit.

Criterion 4. The limitations, controls, and requirements of the state operating permits must be permanent, quantifiable, and otherwise enforceable as a practical matter. Article XXI, section 2103.12.g states that the permit must include those operational requirements and limitations that assure compliance with all applicable requirements. This includes appropriate testing, monitoring, recordkeeping and reporting.

Criterion 5. The permits are issued subject to public participation. This means that the state agrees, as part of its program, to provide EPA and the public with timely notice of the proposal and issuance of such permits, and to provide EPA, on a timely basis, with a copy of each proposed (or draft) and final permit intended to be federally enforceable. This process must also provide for an opportunity for public comment on the permit applications prior to the issuance of the final permit. Article XXI, subchapters B and C provide thorough procedures for public participation which meet the public participation criteria. Sections 2102.05.c, 2103.11.e, 2102.04.h, 2103.11.h detail the public participation requirements.

Allegheny County Health Department's operating permit program clearly satisfies the criteria for approval of a state program for the issuance of federally enforceable operating permits for purposes of limiting a source's PTE and is, therefore, approved as a SIP revision. The criteria discussed above relates to operating permit programs that are to approved as part of the SIP under section 110 of the Clean Air Act. In general, FESOP permit programs approved under a SIP relate only to those pollutants regulated under section 110, that is criteria pollutants. Pennsylvania is also seeking approval of ACHD's operating permit program under section 112 of the Clean Air Act for the purpose of limiting the PTE of hazardous air pollutants. The following is a discussion of EPA's criteria for approval of the permit program under section 112.

As part of this action, EPA is approving, pursuant to section 112(l) of the Clean Air Act. Pennsylvania's request on behalf of the ACHD for authority to regulate hazardous air pollutants (HAPs) through the issuance of a federally enforceable state operating permit. Approval pursuant to section 112(l) of the Act would grant the ACHD authority to issue federally enforceable permits which limit PTE of HAPs. The EPA has determined that the five approval criteria for approving FESOP programs into the SIP, as specified in the June 28, 1989 Federal Register notice referenced above, are also appropriate for evaluating and approving operating permit programs under section 112(l). The June 28, 1989 notice does not address HAPs because it was written prior to the 1990 amendments to section 112 of the Act. Since the ACHD's operating permits program meets the five program approval criteria for both criteria and hazardous air pollutants, it may be used to limit the potential to emit of both criteria and hazardous air pollutants.

In addition to meeting the criteria discussed above, the ACHD's permit program for limiting potential to emit of HAPs must meet the statutory criteria for approval under section 112(l)(5) of the Act. This section allows EPA to approve a program only if it: (1) Contains adequate authority to assure compliance with any section 112 standard or requirement; (2) provides for adequate resources; (3) provides for an expeditious schedule for assuring compliance with Section 112 requirements; and (4) is otherwise likely to satisfy the objectives of the Act.

The EPA is approving the ACHD's state operating permit program pursuant to section 112(l) of the Act because the programs meet applicable approval criteria in section 112(l)(5) of the Act. Regarding the statutory criteria of section 112(l)(5) of the Act, EPA believes the ACHD's permit program contains adequate authority to assure compliance with section 112 requirements since the program does not waive any section 112 requirement(s). Sources would still be required to meet section 112 requirements applicable to non-major sources. Regarding adequate resources, ACHD has included in its state operating permit program provisions for the collection of fees from sources obtaining permits. Furthermore, EPA believes that the state operating permit program provides for an expeditious schedule for assuring compliance because they allow a source to establish a voluntary limit on potential to emit and avoid being subject to a federal Clean Air Act requirement applicable on a particular date. Nothing in the operating permit program would allow a source to avoid or delay compliance with a federal requirement if it fails to obtain the appropriate federally enforceable limit by the relevant deadline. The state operating permit program is consistent with the objectives of the section 112 program because its purpose is to enable sources to obtain federally enforceable limits on potential to emit to avoid major source classification under section 112. The EPA believes that this purpose is consistent with the overall intent of section 112.

EPA is approving a revision to the Allegheny County portion of the Commonwealth of Pennsylvania State Implementation Plan (SIP). The revision consists of Allegheny County's state operating permit program. EPA is approving this revision in accordance with the requirements of sections 110 and 112 of Clean Air Act.

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision and section 112(l) approval if adverse comments are filed. This rule will be effective on August 25, 2003 without further notice unless EPA receives adverse comment by July 28, 2003. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number PA138-4098 in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

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

i. E-mail. Comments may be sent by electronic mail (e-mail) to [Branch Chief's e-mail address], attention PA138-4098. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov , EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

ii. Regulations.gov. Your use of Regulation.gov is an alternative method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, then select “Environmental Protection Agency” at the top of the page and use the “go” button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

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

2. By Mail. Written comments should be addressed to the EPA Regional office listed in the ADDRESSES section of this document.

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 25, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, approving the Allegheny County Health Department FESOP, may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

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

On March 20, 2003 (68 FR 13653-13657), we proposed to redesignate the San Diego County area to attainment for the 1-hour ozone National Ambient Air Quality Standard (NAAQS). We also proposed to approve a 1-hour ozone maintenance plan and motor vehicle emissions budgets as revisions to the San Diego portion of the California State Implementation Plan. The maintenance plan and budgets are contained in the Ozone Redesignation Request and Maintenance Plan for San Diego County, which was adopted December 11, 2002 by the board of the San Diego County Air Pollution Control District (“SDCAPCD”) and submitted by the California Air Resources Board on December 20, 2002.

In our March proposal, we stated that final approval would be contingent upon our affirmative finding that the latest update to California's motor vehicle emissions model, known as EMFAC2002, is acceptable for purposes of SIP development and transportation conformity. On April 1, 2003, we published a Federal Register notice, stating our conclusion that the EMFAC2002 emission factor model is acceptable for use in SIP development and transportation conformity. (68 FRN 15720-15723)

The proposal contains detailed information on the SIP submittal and our evaluation of the submittal against applicable CAA provisions and EPA policies relating to 1-hour ozone maintenance SIPs, redesignations and budgets.

We received no public comment on our proposed action.

In this document we are finalizing our proposed approval of the Ozone Redesignation Request and Maintenance Plan for San Diego County (December 2002), as meeting applicable provisions for 1-hour ozone maintenance plans, under CAA sections 175A and 110(k)(3). As part of this action, we are finalizing approval for the following specific plan elements. We indicate on which page of our proposal the element is discussed.

(1) Approval of the emissions inventories for 2001, 2005, 2010, and 2014, under CAA section 172(c)(3) and 175A (68 FR 13654).

(2) Approval of the maintenance demonstration through 2014, under CAA section 175A (68 FR 13654).

(3) Approval of the SDCAPCD commitment to continue ambient monitoring of the 1-hour ozone NAAQS, under CAA section 175A (68 FR 13655).

(4) Approval of the SDCAPCD commitment to track progress through annual review of monitoring data for the most recent three consecutive years, to verify continued attainment of the 1-hour ozone NAAQS, under CAA section 175A (68 FR 13655).

(5) Approval of the contingency measures, under CAA section 175A(d) (68 FR 13655).

(6) Approval of the 2010 and 2014 motor vehicle emissions budgets for volatile organic compounds (VOC) and nitrogen oxides (NO X ), under CAA sections 176(c)(2), as adequate for maintenance of the 1-hour ozone NAAQS and for transportation conformity purposes (68 FR 13655).

Finally, we are redesignating San Diego County to attainment for the 1-hour ozone standard under CAA section 107(d)(3)(E).

As discussed, we finalize these actions, in view of the fact that in a separate action, we have found that the EMFAC2002 emission factor model is acceptable.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 25, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

This regulation is issued under the authority granted to the Secretary of Health and Human Services (the Secretary) by section 1102 of the Social Security Act (the Act), 42 U.S.C. 1302. Section 1102 of the Act authorizes the Secretary to publish regulations that may be necessary for the efficient administration of the functions for which he is responsible under the Act.

The Administrative Procedure Act requirements for notice of proposed rulemaking do not apply to rules when the agency finds that notice is impracticable, unnecessary or contrary to the public interest. We find proposed rulemaking unnecessary because the rule is not imposing new requirements or burdens on States, but is removing administrative requirements and burdens, principally the requirement that the support be 3 months delinquent before the debt is referred for Federal tax refund offset. The rule also removes the requirement to submit written notices, which requires the States to transmit a separate paper response or to submit referrals by magnetic tape. Under the new procedures, notices and referrals will be sent electronically which is much simpler for the States. Finally, the rule incorporates several policies which are already in effect and, therefore, advance notice and comment is unnecessary. The policies are being included in the regulations in order to have all the information pertaining to the submission of Federal tax refund offset cases in one place.

The Federal Tax Refund Offset program collects past-due child support payments from the Federal tax refunds of parents who have been ordered to pay child support. The program is a collaborative effort between OCSE, the Internal Revenue Service, the Financial Management Service of the Department of the Treasury and State Child Support Enforcement agencies.

The Federal Tax Refund Offset program was enacted by Congress in 1981 and was originally restricted to child support debts owed in public assistance cases. It was expanded in 1984 to include child support debts in non-assistance cases. Federal Tax Refund Offset is a mandatory child support enforcement tool and must be used if a case meets the criteria found at 45 CFR 303.72. Essentially, in order for the Federal Tax Refund Offset remedy to be applied, the amount of unpaid child support (arrears) must meet a minimum threshold: $150 if the custodial parent is receiving services under title IV-A of the Act (assigned arrears) or $500 if services are provided in a non-assistance case under title IV-D (unassigned arrears). After ensuring that the case information is current, the State IV-D agency notifies OCSE which reviews the request. If it qualifies, OCSE forwards the request to the Treasury to offset any Federal tax refund due to the noncustodial parent. The noncustodial parent is notified at the time the case is initially submitted by the State to OCSE that the past-due support will be reported to the Treasury for tax refund offset. When the offset is made, the Treasury notifies the noncustodial parent that it has occurred. Included in the process are opportunities for the noncustodial parent to contest and provisions for administrative review and notification of the noncustodial parent's spouse in cases of joint tax refunds.

Several years ago, OCSE formed a regulation workgroup to exchange views, information, and advice on existing regulations in order to eliminate or revise outdated, unduly burdensome, or unproductive regulations. This group was made up of representatives of Federal, State and local government staff and officials. The workgroup conducted its review which resulted in a final rule issued December 20, 1996 (61 FR 67235) which made both substantive and technical changes. However, not all of the workgroup's recommendations were included at that time, owing to the unknown nature of changes that might result from welfare reform proposals then circulating. Some of the changes in this rule result from those initial workgroup discussions and consultations, as well as from suggestions from a tax refund offset workgroup of Federal and State staff under the auspices of OCSE's Office of Automation and Program Operations.

We are amending § 303.72(a)(2) to remove the requirement that support be at least 3 months delinquent in a case involving a recipient of title IV-A services before a State refers the case for Federal Tax Refund offset. There is no such requirement for non-title-IV-A cases. In our consultations, States requested the elimination of the 3-month delinquency rule, maintaining that it is difficult to track delinquencies in this way. For instance, how should the State count a month in which a token payment is received? Should a small payment toward the ordered amount of support allow a non-custodial parent to avoid offset for another 3-month period? There also has been confusion among the States about how the 3-month period should be computed. Under current procedures, pre-offset notices are sent to the obligor either by the State or, if the State requests it, by OCSE. The State tells OCSE how long to hold its cases (30, 45, 60, or 90 days) before forwarding them to the Treasury, so that the combination of State hold and OCSE hold will meet the 90-day delinquency requirement. OCSE agrees with the States that Treasury's regulatory requirement for a 30-day hold period beginning with the date of the pre-offset notice to the obligor is sufficient to ensure opportunity for appeal and that the additional 90-day delinquency period required by OCSE regulations before sending the case to Treasury is unnecessary and causes delay in the collection of support.

We have retained the requirement that the total amount of arrears assigned to the State in a Tax Refund Offset case must be a minimum of $150. We have added a clarification at the redesignated provision at § 303.72(a)(2) that States may combine assigned support arrears together to reach the $150 threshold in those instances where an obligor has more than one title IV-A case. We have added a parallel clarification on unassigned arrears at § 303.72(a)(3)(ii). However, different types of arrears ( i.e. , assigned arrears and unassigned arrears) may not be combined to reach the thresholds of $150 for assigned arrears or $500 for unassigned arrears for Federal Tax Refund Offset. Paragraph (a)(3)(ii) now reads: “ The amount of support is not less than $500. The State may combine support amounts from the same obligor in multiple cases where the IV-D agency is providing IV-D services under § 302.33 of this chapter to reach $500. Amounts under this paragraph may not be combined with amounts under paragraph (a)(2) to reach the minimum amounts required under this paragraph or under paragraph (a)(2).” These clarifications incorporate in regulation the policy already articulated in OCSE's policy interpretation question, PIQ-01-06, published July 9, 2001.

The regulation at § 303.72(b)(1) requires States to notify OCSE of a liability for past-due support by means of magnetic tape. We are amending this provision to reflect the fact that notification to OCSE is no longer done by magnetic tape. Hence the phrase “on a magnetic tape” is changed to the more general “in the manner specified by the Office in instructions” to allow for changing technology. Section 303.72(b)(2) lists specific information that must be included in the notification of liability for past-due support that the IV-D agency sends to OCSE regarding each delinquency submitted for offset. We are amending paragraph (b)(2) by adding “to the extent specified by the Office in instructions” before the list to allow OCSE to easily remove current requirements if they become unnecessary. Section 303.72(b)(3) permits the IV-D agency to add in its submittal the taxpayer's IV-D case number and FIPS code for the local IV-D agency where the case originated. We are amending the language to eliminate the specific types of identifiers permitted, so that States who wish to submit this optional item can submit the IV-D identifier of their choice. The information submitted is passed back to the States for their own use after Federal processing is complete.

Provisions at § 303.72(c)(2) and (4) and (g)(4) are amended to delete the requirement that notifications to States by OCSE are “in writing” or that “written” explanations from the IV-D agency are returned to OCSE, as the transmission of administrative review results is now done electronically.

Similarly, in § 303.72(d)(2) and (f)(3), the requirement for State IV-D agencies to inform OCSE “in writing” of changes in case status or the amount referred for collection is deleted. In addition, we are amending these sections to recognize that the amount to be offset may increase as well as decrease after the submittal, due to the transition from annual updates to a continuous data processing schedule. In both these sections, and at § 303.72(g)(4), where an administrative review may lead to an increase rather than a reduction in the amount due, the regulation is amended by replacing the word “decrease” with the word “change''.

Paragraph (g) sets forth procedures for contesting an offset in interstate cases. The existing regulation at paragraph (g)(4) calls for the State having the order to report any change in the amount of past-due support to OCSE. This is in conflict with the overall goal that only one State be the submitting State for purposes of Tax Refund Offset. The submitting State controls every aspect of the submission. State officials have informed us that they prefer that any updates based on administrative review be conveyed to OCSE by the submitting State. Thus, we are amending § 303.72(g)(4) to require that changes based on administrative review in interstate cases be reported to the submitting State and that the submitting State in turn notifies OCSE.

We made a technical conforming change to update the reference at § 303.72(g)(8) to reflect the current regulatory citation for the State performance measure on collections of arrears.

The requirements at § 303.72(h)(6) are amended to clarify that collections from offset may only be applied to cases that were being enforced by the IV-D agency at the time the advance notice described in paragraph (e)(1) of this section was sent. Paragraph (h)(6) had provided that collections from offset could be applied only against the past-due support amount that was specified in the advance notice to the obligor. Because cases are now certified on an ongoing basis—rather than once a year—that requirement is no longer appropriate. Collections should be applied against the balance certified as of the date of offset. That amount may vary up and down throughout the year as arrears change and States send in updated information. The current model pre-offset letter makes it clear to the obligor that the arrears balance may fluctuate up and down and that the debt will be offset at the amount which is certified as of the date of offset, not necessarily the amount shown in the notice. As noted earlier, a notice of offset is sent by the Treasury at the time of the offset, giving the exact amount offset and a contact at the State child support office for questions. This notice is required by Treasury regulations. However, if a new case is established, the IV-D agency must send an advance notice to the obligor before referring the associated debt for offset.

No new information collection requirements are imposed by these regulations, nor are any existing requirements changed as a result of their promulgation. Therefore, the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), regarding reporting and record keeping, do not apply.

The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not result in a significant impact on a substantial number of small entities. The primary impact is on State governments. State governments are not considered small entities under the Act.

Executive Order 12866 requires that regulations be reviewed to ensure that they are consistent with the priorities and principles set forth in the Executive Order. The Department has determined that this rule is consistent with these priorities and principles.

Section 202 of the Unfunded Mandates Reform Act of 1995 requires that a covered agency prepare a budgetary impact statement before promulgating a rule that includes any 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 in any one year.

The Department has determined that this rule would not impose a mandate that will result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year.

This regulation is not a major rule as defined in 5 U.S.C. chapter 8.

Section 654 of the Treasury and General Government Appropriations Act of 1999 requires Federal agencies to determine whether a proposed policy or regulations may affect family well being. If the agency's determination is affirmative, then the agency must prepare an impact assessment addressing seven criteria specified in the law. These regulations will not have an impact on family well being as defined in the legislation.

Executive Order 13132 on Federalism applies to policies that have Federalism implications, defined as “regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on the States, or on the distributions of power and responsibilities among the various levels of government”.

This rule does not have Federalism implications for State or local governments as defined in the Executive Order.

The standards that are the subject of these corrections are FMVSS No. 109, New pneumatic tires, FMVSS No. 110, Tire selection and rims for motor vehicles with a gross vehicle weight rating (GVWR) of 4,536 kilograms (10,000 pounds) or less, and FMVSS No. 120, Tire selection and rims for motor vehicles with a GVWR or more than 4,536 kilograms (10,000 pounds). A final rule amending these standards was published in response to the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act of 2000 on November 18, 2002 (67 FR 69600). The final rule also established a new Federal Motor Vehicle Safety Standard, FMVSS No. 139, New pneumatic tires for light vehicles. The final rule applies to all new and retreaded tires for use on vehicles with a gross vehicle weight rating (GVWR) of 10,000 pounds or less and to all vehicles with a GVWR of 10,000 pounds or less, except for motorcycles and low speed vehicles. The final rule requires improved labeling of tires to assist consumers in identifying tires that may be the subject of a safety recall. It also requires tire and vehicle manufacturers to provide other consumer information to increase public awareness of the importance and methods of observing motor vehicle tire load limits and maintaining proper tire inflation levels for the safe operation of a motor vehicle.

On June 5, 2003, NHTSA published in the Federal Register (68 FR 33655) a final rule; response in part to petitions for reconsideration which delayed the effective date of the final rule published on November 18, 2002 to September 1, 2004.

As published, the November 2002 final rule contained errors that need correction. The November 2002 final rule amended the title and application paragraph of FMVSS No. 110 to make it, in its entirety, applicable to all light vehicles. This document corrects the requirement paragraphs so passenger cars must meet the standard in its entirety, while light vehicles other than passenger cars need only meet the labeling requirements.

The November 2002 final rule also amended the title and application paragraphs of FMVSS No. 120 to make it, in its entirety, applicable to all heavy vehicles. This document amends the title and application paragraph so they read the same as they did before that final rule, referring to all vehicles other than passenger cars, regardless of GVWR. Thus, as before that final rule, all vehicles other than passenger cars must meet the standard's performance requirements. The document also amends the FMVSS No. 120 requirement paragraphs so all heavy vehicles other than passenger cars must meet the labeling requirements contained therein.

The tire performance requirements, and their applicability, are addressed in the final rule on tire performance upgrade that is published elsewhere in this issue of the Federal Register . A notice of proposed rulemaking on tire performance upgrade was published on March 5, 2002, at 67 FR 10050.

A March 13, 2003, meeting with General Motors (GM) and a subsequent GM submission to the docket dated March 21, 2003, brought to the agency's attention that regulatory text of the November 2002 final rule, contained in paragraph S2, “Application” of FMVSS No. 110 and paragraph S3, “Application” of FMVSS No. 120, indicated that the entirety of these standards, not only the labeling provisions, would be applicable to all vehicles 10,000 pounds or less GVWR as of the effective date of that final rule. In other words, it indicated that the performance aspects of FMVSS No. 110, formerly applicable only to passenger cars, are applicable to all vehicles of 10,000 pounds or less GVWR.

As stated in the November 2002 final rule, the intent of the agency was to only revise and make applicable to all light vehicles the vehicle labeling provisions of FMVSS No. 110 and 120. The agency is making this clear by amending the regulatory text of FMVSS Nos. 110 and 120 accordingly. Amendments to the performance aspects of FMVSS Nos. 110 and 120 are addressed in the final rule on tire performance upgrade that is published elsewhere in this issue of the Federal Register .

The agency is also taking this opportunity to correct FMVSS No. 109 by moving certain aspects of the application paragraph into the subsequent requirement paragraphs.