Section (a)(1) of the Freedom of Information Act (FOIA) requires an agency to publish and update as necessary in the Federal Register “for the guidance of the public” certain basic information about the agency's structure and operations. See 5 U.S.C. 552(a)(1). More specifically, section (a)(1)(A) of the FOIA requires an agency to publish “descriptions of its central and field organization and the established places at which, the employees * * * from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions.” 5 U.S.C. 552(a)(1)(A). Section (a)(1)(B) of the FOIA requires an agency to publish “statements of the general course and method by which its functions are channeled and determined * * *” 5 U.S.C. 552(a)(1).

In accordance with these FOIA requirements, the Finance Board first published a regulation describing its basic units of organization and their functions in December 1991. See 56 FR 67155 (Dec. 30, 1991). The only comprehensive update of this rule to date occurred in December 1996. See 61 FR 68129 (Dec. 27, 1996). 1 Since that time, the agency has undergone several reorganizations. 2 This final rule will update the description of the Finance Board's functions and general organization in part 905 to reflect the agency's current structure. It also will add new definitions of the terms “Secretary to the Board” and “Executive Secretary” in part 900.

The notice and publication requirements of the Administrative Procedure Act do not apply to this rule because the amendments made by the rule relate only to the organization of the agency. In addition, it is in the public interest to conform the regulations to reflect agency reorganizations that already have taken effect. For these reasons, the Finance Board is publishing the amendments in the form of a final rule and for good cause finds that the interim final rule should become effective on June 27, 2003. See 5 U.S.C. 553(b)(1)(A) and (d)(3).

The Finance Board is adopting the amendments to parts 900 and 905 in the form of a final rule and not as a proposed rule. Therefore, the provisions of the Regulatory Flexibility Act do not apply. See 5 U.S.C. 601(2) and 603(a).

The final rule does not contain any collections of information under the Paperwork Reduction Act of 1995. See 44 U.S.C. 3501 et seq. Consequently, the Finance Board has not submitted any information to the Office of Management and Budget for review.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that is applicable to RR RB211-22B series turbofan engines with IP compressor stage 6 to 7 rotor shaft assembly P/N UL37094 installed was published in the Federal Register on December 2, 2002 (67 FR 71495). That action proposed to require removal from service of IP compressor stage 6 to 7 rotor shaft assemblies P/N UL37094 before reaching newly reduced life limits.

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 .

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, and 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 is effective upon publication of each separate SIAP as contained in the transmittal. Some SIAP amendments may have been previously issued by the FAA in a National Flight Data Center (NFDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP amendments may require making them effective in less than 30 days. For the remaining SIAPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description on each SIAP is contained in the appropriate FAA Form 8260 and the National Flight Data Center (FDC)/Permanent (P) Notice to Airmen (NOTAM) which are incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation's Regulations (FAR). Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen to do not use the regulatory text of the SIAPs, but refer to their graphic depiction of charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes SIAPs. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained in the content of the following FDC/P NOTAMs for each SIAP. The SIAP information in some previously designated FDC/Temporary (FDC/T) NOTAMs is of such duration as to be permanent. With conversion to FDC/P NOTAMs, the respective FDC/T NOTAMs have been canceled.

The FDC/P NOTAMs for the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Further, the SIAPs contained in this amendment are based on the criteria contained in the TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The Rule was issued by the Commission in 1979, 44 FR 66466 (Nov. 19, 1979), in response to a directive in the Energy Policy and Conservation Act of 1975. 1 The Rule covers several categories of major household appliances and other consumer products including water heaters (this category includes storage-type water heaters, gas-fired instantaneous water heaters, and heat pump water heaters), room air conditioners, furnaces (this category includes boilers), and central air conditioners (this category includes heat pumps).

The Rule requires manufacturers of all covered appliances and pool heaters to disclose specific energy consumption or efficiency information (derived from the DOE test procedures) at the point of sale in the form of an “EnergyGuide” label and in catalogs. It also requires manufacturers of furnaces, central air conditioners, and heat pumps either to provide fact sheets showing additional cost information, or to be listed in an industry directory showing the cost information for their products. The Rule requires manufacturers to include, on labels and fact sheets, an energy consumption or efficiency figure and a “range of comparability.” This range shows the highest and lowest energy consumption or efficiencies for all comparable appliance models so consumers can compare the energy consumption or efficiency of other models (perhaps competing brands) similar to the labeled model. The Rule also requires manufacturers to include, on labels for some products, a secondary energy usage disclosure in the form of an estimated annual operating cost based on a specified DOE national average cost for the fuel the appliance uses.

Section 305.8(b) of the Rule requires manufacturers, after filing an initial report, to report certain information annually to the Commission by specified dates for each product type. 2 These reports, which are to assist the Commission in preparing the ranges of comparability, contain the estimated annual energy consumption or energy efficiency ratings for the appliances derived from tests performed pursuant to the DOE test procedures. Because manufacturers regularly add new models to their lines, improve existing models, and drop others, the data base from which the ranges of comparability are calculated is constantly changing. To keep the required information consistent with these changes, under section 305.10 of the Rule, the Commission will publish new ranges if an analysis of the new information indicates that the upper or lower limits of the ranges have changed by more than 15%. Otherwise, the Commission will publish a statement that the prior ranges remain in effect for the next year.

Manufacturers have submitted data for room air conditioners, water heaters (including storage-type, gas-fired instantaneous, and heat pump water heaters), furnaces, boilers, and pool heaters. The ranges of comparability for these products have not changed significantly enough to warrant a change to the current ranges. Therefore, the current ranges for these products will remain in effect until further notice.

This means that manufacturers of storage-type water heaters, furnaces, and boilers must continue to use the ranges that were published on September 23, 1994 (59 FR 48796). These manufacturers must continue to base the disclosures of estimated annual operating cost required at the bottom of EnergyGuides for these products on the 1994 Representative Average Unit Costs of Energy for electricity (8.41 cents per kilo Watt-hour), natural gas (60.4 cents per therm), propane (98 cents per gallon), and/or heating oil ($1.05 per gallon) that were published by DOE on December 29, 1993 (58 FR 68901), and by the Commission on February 8, 1994 (59 FR 5699).

Manufacturers of gas-fired instantaneous water heaters must continue to use the ranges of comparability that were published on December 20, 1999 (64 FR 71019). They must continue to base the disclosures of estimated annual operating cost required at the bottom of EnergyGuides for these products on the 1999 Representative Average Unit Costs of Energy for natural gas (68.8 cents per therm) and propane (77 cents per gallon) that were published by DOE on January 5, 1999 (64 FR 487) and by the Commission on February 17, 1999 (64 FR 7783).

Manufacturers of heat pump water heaters must continue to use the ranges that were published on June 24, 2002 (67 FR 42478). Manufacturers of heat pump water heaters must continue to base the disclosures of estimated annual operating cost required at the bottom of EnergyGuides for these products on the 2002 Representative Average Unit Costs of Energy for electricity (8.28 cents per kilo Watt-hour) that were published by DOE on April 24, 2002 (67 FR 20104), and by the Commission on June 7, 2002 (67 FR 39269). Manufacturers of pool heaters must continue to use the ranges that were published on August 21, 1995 (60 FR 43367).

Manufacturers of room air conditioners must continue to use the corrected ranges for room air conditioners that were published on November 13, 1995 (60 FR 56945, at 56949). Manufacturers of room air conditioners must continue to base the disclosures of estimated annual operating cost required at the bottom of EnergyGuides for these products on the 1995 Representative Average Unit Costs of Energy for electricity (8.67 cents per kilo Watt-hour), natural gas (63 cents per therm), propane (98.5 cents per gallon), and/or heating oil ($1.008 per gallon) that were published by DOE on January 5, 1995 (60 FR 1773), and by the Commission on February 17, 1995 (60 FR 9295).

For up-to-date tables showing current range and cost information for all covered appliances, see the Commission's Appliance Labeling Rule Web page at http://www..ftc.gov/appliances.

Procedures established by section 701(e) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 371(e), govern the Commission action to issue the final regulations declaring that metal-cored candlewicks containing more than 0.06 percent lead by weight in the metal and candles with such wicks are hazardous substances and banning such wicks and candles with such wicks. 15 U.S.C. 1262(a)(2) and 1261(q)(2). These procedures provide that once the Commission issues a final rule, persons who would be adversely affected by the rule have a period of thirty (30) days in which to file objections and request a public hearing on those objections. 21 U.S.C. 371(e)(2). If no objections are filed and no hearing is requested, the regulations become effective on the date specified in the regulations as issued. 21 U.S.C. 371(e)(1); 16 CFR 1502.14(a). If this is the case, after the thirty day period has run, the Commission publishes a notice in the Federal Register confirming the effective date. 16 CFR 1502.14(b). Accordingly, since no objections were filed and no hearing was requested during the thirty day period, the Commission confirms that the effective date of the final regulations published on April 15, 2003 at 68 FR 19147-8 declaring that metal-cored candlewicks containing more than 0.06 percent lead by weight in the metal and candles with such wicks are hazardous substances and banning such wicks and candles with such wicks is October 15, 2003.

Section 382 limits the amount of taxable income that may be offset by certain loss carryovers and recognized built-in losses following an ownership change of a loss corporation. Section 382(g) defines an ownership change as a change in the percentage of ownership of the loss corporation's stock owned by the 5-percent shareholders of more than 50 percentage points (by value) over a 3-year period. Congress intended the section 382 limitation to apply when new shareholders that did not bear the economic burden of the losses acquire a controlling interest in the loss corporation. See H.R. Rep. No. 99-426, 1986-3 C.B. (Vol. 2) 256; S. Rep. No. 99-313 1986-3 C.B. (Vol. 3) 232.

Section 382(l)(3) provides that in determining the ownership of stock of a loss corporation, the constructive ownership rules of section 318 apply, with certain exceptions. Section 382 (by reference to the rules of section 318) and the regulations thereunder generally attribute stock owned by an entity such as a corporation or a partnership to its shareholders or partners, respectively. Therefore, if a corporation makes a pro rata distribution of an interest in a loss corporation to its shareholders, the distribution does not result in an acquisition of that interest by the shareholders that must be taken into account in determining whether the loss corporation has an ownership change. On the other hand, section 382 and the regulations thereunder do not attribute stock owned by a qualified trust described in section 401(a) (qualified trust) to participants in the qualified plan under which the trust is established. In particular, although section 318(a)(2) provides for attribution of stock owned by a trust to its beneficiaries, it excepts qualified trusts from the application of this rule. Moreover, § 1.382-2T(h)(2)(iii) provides that a qualified trust is treated as an individual unrelated to any other direct or indirect owner of the loss corporation. Accordingly, the participants under a qualified plan are not treated as owning any interest in a loss corporation owned by the trust. Therefore, if a qualified trust owns directly 5 percent or more of a loss corporation, a distribution of an interest in the loss corporation from the trust to plan participants (or their beneficiaries) results in an acquisition of that interest by the participants (or their beneficiaries) that must be taken into account in determining whether the loss corporation has an ownership change.

Treasury and the IRS are concerned that, under the current rules, a distribution of an ownership interest in an entity from a qualified trust may cause an ownership change, even though that event may not change the ultimate beneficial ownership of the loss corporation. To prevent this result, these temporary regulations set forth new rules.

The temporary regulations provide that if a qualified trust distributes an ownership interest in an entity, then for testing dates on or after the date of the distribution, the distributed ownership interest will be treated as having been acquired by the distributee on the date and in the manner acquired by the trust. Furthermore, the distribution itself does not give rise to a testing date. Because the rule applies only for testing dates on or after the date of the distribution, a distribution does not retroactively cause (or undo) an owner shift that would (or would not) have occurred if the distributee had actually acquired the ownership interest on the date and in the manner acquired by the qualified trust.

To determine which ownership interests have been distributed, the loss corporation must account for all dispositions of ownership interests by the qualified trust either by specifically identifying the ownership interest disposed of, or by using a first-in, first-out (FIFO) method. The loss corporation, however, must apply the same method to all dispositions by the qualified trust.

The temporary regulations apply to all distributions from qualified trusts after June 27, 2003. The loss corporation may choose to apply the rules retroactively in one of two ways: (1) To all distributions from qualified trusts on or before June 27, 2003 and within a testing period that includes June 27, 2003; or (2) to all distributions from qualified trusts after December 31, 1986. Retroactive application will affect a taxpayer's items of income, gain, deduction, or loss only in open years.

Treasury and the IRS request comments regarding whether there are other events that, under current rules, are taken into account in determining whether an ownership change occurs, but do not cause the ultimate beneficial ownership of the loss corporation to change. In this regard, Treasury and the IRS have been studying the constructive ownership rules as they apply to members of a family, and the effect of those rules on the determination of whether a loss corporation has an ownership change. Subject to certain exceptions, § 1.382-2T(h)(6)(ii) treats an individual, his spouse (other than a spouse who is legally separated from the individual under a decree of divorce or separate maintenance), his children, his grandchildren, and his parents as one individual, and aggregates shares owned by those persons for purposes of determining whether a loss corporation has an ownership change. Treasury and the IRS are concerned that, under the current rules, a change in the composition of a family may be interpreted to cause an ownership change. Treasury and the IRS believe that, as in the case of a distribution from a qualified trust, when a change in family composition does not change the ultimate beneficial ownership of the loss corporation, it should not be taken into account in determining whether a loss corporation has an ownership change. For example, a change in family composition that results from a marriage of two individuals does not change the ultimate beneficial ownership of the loss corporation and, therefore, should not cause an ownership change. Accordingly, Treasury and the IRS intend to promulgate regulations to address changes in family composition that result from marriage, birth, adoption, divorce, death, or other events in which an individual joins or leaves a family. It is anticipated that these regulations will be electively retroactive on terms similar to those applicable to the rules regarding distributions from a qualified trust.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. These temporary regulations provide relief to qualifying loss corporations that might be affected by an unintended consequence of the operation of the statute. The regulations relieve a restriction on the ability of qualified trusts that distribute interests in a loss corporation without causing an ownership change. In addition, it is necessary to provide immediate guidance to taxpayers. Accordingly, good cause is found for dispensing with prior notice and comment pursuant to 5 U.S.C. 553(b) and for dispensing with a delayed effective date pursuant to 5 U.S.C. 553(d). For applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), see the notice of proposed rulemaking on this subject in the Proposed Rules section in this issue of the Federal Register . The IRS and Treasury request comments from small entities that believe they might be adversely affected by these regulations. Pursuant to section 7805(f) of the Code, these temporary regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact.

The principal author of these regulations is Martin Huck, Office of Associate Chief Counsel (Corporate). However, other personnel from the IRS and Treasury Department participated in their development.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981. You can find background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the West Virginia program in the January 21, 1981, Federal Register (46 FR 5915). You can also find later actions concerning West Virginia's program and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

By letter dated April 9, 2002 (Administrative Record Number WV-1296), the West Virginia Department of Environmental Protection (WVDEP) sent us a proposed amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). The proposed amendment consists of several changes to the Code of State Regulations (CSR) at 38-2, and the addition of new CSR 38-4, the Coal Related Dam Safety Rules, as contained in House Bill 4163.

We announced the receipt and provided an opportunity to comment on the amendment in the June 6, 2002, Federal Register (67 FR 38919) (Administrative Record Number WV-1311). The comment period closed on July 8, 2002. We received comments from the U.S. Department of Labor's Mine Safety and Health Administration.

By letter and electronic mail dated June 19, 2002, WVDEP sent us additional amendments to its program concerning changes to CSR 38-2 that are contained in Senate Bill 2002 (Administrative Record Number WV-1316). Senate Bill 2002 was signed by the Governor of West Virginia on June 21, 2002; it authorized WVDEP to promulgate revisions to its Surface Mining and Reclamation Regulations.

We announced receipt of the proposed amendments in the August 16, 2002, Federal Register (67 FR 53542) (Administrative Record Number WV-1322). In that notice, we also identified proposed amendments that we inadvertently omitted identifying in the June 6, 2002, Federal Register notice, including the new Coal Related Dam Safety Rules at CSR 38-4. The comment period closed on September 16, 2002. We received comments from the U.S. Department of Labor's Mine Safety and Health Administration, the U.S. Department of the Interior's Fish and Wildlife Service, and the U.S. Environmental Protection Agency.

These two submissions include amendments to CSR 38-2 that are intended to address required program amendments codified in the Federal regulations at 30 CFR 948.16 (rrrr), (ssss), (tttt), (uuuu), (vvvv), (xxxx), (yyyy), (zzzz), (bbbbb), (ccccc), (ddddd), (eeeee), (ggggg), (hhhhh), (mmmmm), (nnnnn), and (qqqqq).

Revisions to the State's contemporaneous reclamation requirements are contained in the two amendment submittals discussed above. In order to expedite our review of the State's amendments to its contemporaneous reclamation provisions, we separated those amendments from the two amendment submittals discussed above. We published our findings and decision on the State's contemporaneous reclamation amendments in the December 3, 2002, Federal Register (67 FR 71832) (Administrative Record Number WV-1344).

The proposed new Coal Related Dam Safety Rules at CSR 38-4 are intended to address, in part, a letter we sent to the State on July 22, 1997 (Administrative Record Number WV-1071), in accordance with the Federal regulations at 30 CFR 732.17(d). The Federal regulation 30 CFR 732.17(d) provides that OSM must notify the State of all changes in SMCRA and the Federal regulations that will require an amendment to the State program. Such letters sent by us are often referred to as “732 letters.” We separated the State's new Coal Related Dam Safety Rules at CSR 38-4 from the amendment submittals discussed above. We will render a final decision on those new rules at a later date as part of a program amendment that addresses the State's responses to 732 letters. For more information on the State's responses to 732 letters, see the proposed rule notice in the January 12, 2001, Federal Register (66 FR 2866).

We also removed from these amendments the State's proposed rules at CSR 38-2-25 concerning the exemption for coal extraction incidental to extraction of other minerals. The proposed rules at CSR 38-2-25 were submitted in response to a 732 letter dated February 7, 1990 (Administrative Record Number WV-827), concerning exemption for coal extraction incidental to the extraction of other minerals removed for purposes of commercial sale (30 CFR part 702). We separated the proposed rules at CSR 38-2-25 from the amendment submittals discussed above, and we will publish our findings at a later date as part of the program amendment that addresses the State's responses to 732 letters. For more information on the State's responses to 732 letters, see the proposed rule notice in the January 12, 2001, Federal Register (66 FR 2866).

In addition, the proposed rules at CSR 38-2-3.12.a.1-2 regarding Subsidence Control Plans; 38-2-5.4.b.8 regarding Excavated Sediment Control Structures; 38-2-5.4.d.3 regarding Coal Processing Waste Dams; and 38-2-16.2.c.4 regarding Bonding for Subsidence Damage are identical to what we previously considered from the submitted West Virginia House Bill 2663. Each of those amendments was approved in our decision on WV-088, which was published in the Federal Register on May 1, 2002 (67 FR 21904) (Administrative Record Number WV-1300). Therefore, we will not reconsider those provisions here.

As discussed under “Submission of the Amendment,” the State's submittal includes proposed amendments that would address required program amendments codified at 30 CFR 948.16. For the reasons discussed below, we are approving the proposed amendments as submitted on April 9, 2002, and June 19, 2002. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes and are approved here without discussion.

The definition of “forestry” has been amended by adding the words “for the production of wood or wood products.” In its submittal of this amendment, WVDEP stated that it is intended to satisfy the required program amendment identified in the August 18, 2000, Federal Register (65 FR 50409, 50411-12). The required program amendment codified at 30 CFR 948.16(rrrr) provides that CSR 38-2-2.31.b must be amended to define forestry to mean a postmining land use used or managed for the long term production of wood or wood products in accordance with the Federal definition of forestry under the definition of land use at 30 CFR 701.5. We find this change to be consistent with and no less effective than the Federal definition of “forestry” at paragraph (d) under the definition of “land use” at 30 CFR 701.5 and it can be approved. Therefore, the required program amendment codified at 30 CFR 948.16(rrrr) is satisfied and can be removed.

This definition was deleted. The definition was rendered obsolete due to the State's changing the Division of Environmental Protection to the Department of Environmental Protection and changing the title to secretary as defined at subsection 2.108. We find that the deletion does not render the West Virginia program less effective than the Federal regulations and can be approved.

This definition is new, and defines “Secretary” to mean the Secretary of the Department of Environmental Protection or the Secretary's authorized agent. We find that the definition does not render the West Virginia program less effective than the Federal regulations and can be approved.

This provision is amended by deleting the word “performance” before the word “bond.” As amended, the provision requires an applicant to identify whether it has “[f]orfeited a bond or similar security in lieu of bond.” In its submittal of this amendment, WVDEP stated that the deletion of the word “performance” was intended to render the definition consistent with the Code of West Virginia (W. Va. Code). W. Va. Code 22-3-11(a), concerning bonding requirements, provides that a “penal bond” shall be furnished by the applicant and conditioned upon the operator faithfully performing all of the requirements of W. Va. Code 22-3 and of the permit. OSM had approved the statutory provision previously on October 4, 1995 (60 FR 51901). We find that the deletion of the term “performance” in its regulations does not render the West Virginia program less effective than the Federal bonding requirements at 30 CFR 800.11 concerning the requirement to file a bond and can be approved. In a similar fashion, the State has deleted the word “performance” at 38-2-3.25.a.4, 3.30.d.8, 3.32.e, 5.4.e.2, 8.2.b.3, 10.6.b.3, 11.2.b, 11.4.a.1, 11.4.a.4, and 22.7.a. For the reason stated above, we find that the deletion of the term “performance” does not render the West Virginia program less effective than the Federal bonding requirements at 30 CFR 800.11 concerning the requirement to file a bond and can be approved.

This provision is amended by adding the word “reinstatement” following the word “transfer” that appears in the second sentence. Also, the third sentence is amended by adding the following words to the beginning of the sentence: “[e]xcept for reinstatement.” The amendments are intended to clarify that CSR 38-2-3.25.a.4 also applies to the reinstatement of permits and in no event can a reinstated permit be approved in advance of the close of the public comment period. This amendment satisfies the required program amendment codified at 30 CFR 948.16(ssss). Therefore, we find that this amendment can be approved and the required program amendment codified at 30 CFR 948.16(ssss) can be removed.

This provision is amended by adding the words “[c]ommercial forestry shall be established on areas receiving a variance from AOC and” at the beginning of the third sentence. This amendment is intended to clarify that only commercial forestry postmining land use and not forestry postmining land use may be approved for areas receiving a variance from the AOC requirements. This amendment satisfies the required program amendment codified at 30 CFR 948.16(tttt). Therefore, we find that this amendment can be approved and the required program amendment codified at 30 CFR 948.16(tttt) can be removed.

This provision is amended by clarifying that ponds and impoundments below the fill must be removed after mining and all other ponds or impoundments that are left in place must meet the requirements of CSR 38-2-5.5. As amended, this provision satisfies the required program amendment at 30 CFR 948.16(uuuu). Therefore, we find that this amendment can be approved and the required program amendment codified at 30 CFR 948.16(uuuu) can be removed.

This provision is amended by adding the following definitions of O horizon and Cr horizon:

We find that the definitions for O and Cr horizons at 38-2-7.4.b1.D.1 are acceptable and further clarify the State's soil horizon requirements. Though different from the Federal definition of soil horizons at 30 CFR 701.5, the State's definitions are not inconsistent with the Federal definition and can be approved. As proposed, this provision partially satisfies the required program amendment at 30 CFR 948.16(vvvv).

The required program amendment at 30 CFR 948.16(vvvv) also requires that the State delete the phrase “except for those areas with a slope of at least 50%” from its regulations at CSR 38-2-7.4.1.D.2. We have reconsidered this required amendment, and for the reasons discussed below find that the phrase “except for those areas with a slope of at least 50%” does not render the West Virginia program less effective. Therefore, the required program amendment at 30 CFR 948.16(vvvv) is fully satisfied and can be removed.

The State regulations at CSR 38-2-7.4 set forth the standards applicable to mountaintop removal mining operations with a postmining land use of “commercial forestry and forestry.” The CSR 38-2-7.4.b.1.D concerns soil and soil substitutes. Subsection 7.4.b.1.D.1 defines soil. Subsection 7.4.b.1.D.2 concerns the recovery of soil, and provides that the operator must recover and use the soil volume equal to the total soil volume on the mined area, except for those areas with a slope of at least 50 percent. In other words, soil, which includes the O, A, E, B, C, and Cr horizons on slopes less than 50 percent within the mined area will be recovered and used, whereas soil on slopes 50 percent or steeper will not be separately recovered. We had interpreted subsection 7.4.b.1.D.2 to mean that for slopes of 50 percent or greater, the topsoil would not be recovered and, therefore, the provision rendered the West Virginia program less effective than the Federal regulations at 30 CFR 816.22.

Because subsection 7.4.b.1.D.2 only addresses soil, it must be read in concert with subsections 7.4.b.1.D.3, D.4, and D.5 to fully understand its effect. It is our understanding that under subsection 7.4.b.1.D.2, when slopes are 50 percent or steeper, the soil may not be separately recovered. In such cases, the requirements of subsection 7.4.b.1.D.3 concerning soil substitutes would apply. Subsection 7.4.b.1.D.3 provides that when the soil volume recovered under subsection 7.4.b.1.D.2 is not sufficient to meet the depth requirements for the postmining land use, selected overburden materials may be used as soil substitutes from within 10 feet of the soil surface on the mined area. Subsection 7.4.b.1.D.3 provides that material from this 10-foot layer may be removed with the soil and mixed with the soil in order to meet the depth requirement. We understand this to mean that, despite the fact that under subsection 7.4.b.1.D.2 soil may not be separately removed on slopes of at least 50 percent, the soil on those slopes will be removed together with the underlying 10-feet of weathered, slightly acid brown sandstone as necessary to meet the depth requirements, and the resulting soil medium will be the best available to support the proposed revegetation. (We note that subsection 7.4.b.1.D.3 contains a typographical error; in the first sentence, the word “sufficient” should be “insufficient” as noted previously in our final rule of August 18, 2000, 65 FR at 50417.)

Subsection 7.4.b.1.D.4 provides that if the soil and other materials saved under paragraph D.2 and the underlying 10 feet of weathered, slightly acid brown sandstone saved under paragraph D.3 are insufficient to meet the depth requirements, the operator will be required to use more of the weathered, slightly acid brown sandstone from below the 10 feet of soil surface on the mined area to meet the depth requirements.

Subsection 7.4.b.1.D.5 provides that upon a demonstration that the depth of materials saved under subsections 7.4.b.1.D.2, D.3, and D.4 are insufficient to meet the depth requirements, then up to 2/3 of the mine spoil may consist of the best available material or mix of materials.

Taken together, and based on our understanding discussed above, we find that these subsections are no less effective than the Federal regulations at 30 CFR 816.22. Therefore, the required program amendment at 30 CFR 948.16(vvvv) is satisfied and can be removed.

This provision is amended by deleting the word “excessive” from the last sentence. In addition, the following language is added to the end of this provision:

These amendments are intended to satisfy the required program amendment at 30 CFR 948.16(xxxx). The requirement at 30 CFR 948.16(xxxx) provides that the West Virginia program must be amended to:

The amendments proposed by the State are identical to the requirements at 30 CFR 948.16(xxxx) except as follows. The State's proposed language includes the word “unless” where the language of the required amendment uses the word “and.” The effect of the word “unless” is that the amendment provides that lesser or no vegetative cover may be authorized if: (1) Mulch or other soil stabilizing practices are used; or (2) the reduced vegetative cover is sufficient to control erosion and attendant air pollution, in which case mulch or other soil stabilizing practices need not be used as provided by 30 CFR 816/817.114. We find that with the removal of the word “excessive,” the required program amendment at 30 CFR 948.16(xxxx) is satisfied and the amendment can be approved. Therefore, the required program amendment at 30 CFR 948.16(xxxx) can be removed. Using the word “unless” is sufficient to assure the control of erosion while more effectively promoting tree establishment by not requiring mulch or other stabilizing practices that may inhibit tree establishment where they are not needed to control erosion.

This provision is being amended by adding the following language to the end of the existing provision:

As amended, this provision provides as follows:

The Federal regulations at 30 CFR 816.95(b) require that rills and gullies that either (1) disrupt the postmining land use or the reestablishment of the vegetative cover or (2) cause or contribute to the violation of water quality standards be filled, regraded, or otherwise stabilized. We understand the amended State provision to mean that a permittee is generally not authorized to repair rills and gullies, except those rills and gullies that are unstable and/or disrupt the approved postmining land use, the establishment of vegetative cover, or cause or contribute to a violation of water quality standards for the receiving stream. This provision is intended to eliminate the compaction of revegetation soils that would normally take place during routine repair of rills and gullies. Such compaction can have a detrimental effect on tree growth. Therefore, the limitation on the repair of rills and gullies is intended to help assure the success of the commercial forestry postmining land use.

An area of potential concern with this provision is that it does not explicitly require the repair of rills and gullies that disrupt the approved postmining land use, the establishment of vegetative cover, or cause or contribute to a violation of water quality standards for the receiving stream. On the other hand, the proposed provision in no way prohibits the repair of such rills and gullies. Moreover, the approved State program already requires restoration of the premining land use, or establishment of an approved alternative postmining land use after mining, (CSR 38-2-7.1.a., 7.3, respectively), the establishment of vegetative cover (38-2-7.4.b.1.G), and compliance with applicable water quality standards (CSR 38-2-14.5.b). It necessarily follows from these provisions that rills and gullies that could prevent compliance with the above requirements must be filled, regraded, or otherwise stabilized. For this reason, we find that the proposed amendment at CSR 38-2-7.4.b.1.G.3, taken in concert with the above-referenced State program requirements, does not render the program less effective than 30 CFR 816.95(b) and can be approved so long as it is implemented in a manner consistent with that Federal provision. If, in future reviews, we should determine that West Virginia is implementing this provision in a manner that is inconsistent with this finding, a further amendment may be required. In addition, we find that this amendment satisfies the required program amendment codified at 30 CFR 948.16(yyyy), which can, therefore, be removed.

This provision is amended by deleting “7.4.b.1.G.1.” in two places and replacing the deleted citation with “7.4.b.1.H.1.” We find that this amendment satisfies the required program amendment at 30 CFR 948.16(zzzz) and can be approved. The requirement at 30 CFR 948.16(zzzz) can be removed.

This provision is amended by deleting a reference to CSR 38-2-7.4.d.1.G.1 and adding in its place a reference to CSR 38-2-7.4.b.1.H.1 in the third sentence. The phrase “where there is potential for excessive erosion on slopes greater than 20%” is deleted from the fourth sentence. The words “and rock cover” are deleted from the fourth sentence and are replaced by the words “except where a lesser vegetation cover has been authorized.”

We find that the deletion of the phrase “where there is potential for excessive erosion on slopes greater than 20%” satisfies the required program amendment at 30 CFR 948.16(bbbbb) and can be approved. We find that the deletion of the words “rock cover” satisfies the required program amendment at 30 CFR 948.16(ccccc) and can be approved. Therefore, the required program amendments at 30 CFR 948.16(bbbbb) and 30 CFR 948.16(ccccc) have been satisfied and can be removed.

We find that the deletion of the reference to CSR 38-2-7.4.d.1.G.1 and the addition in its place of a reference to CSR 38-2-7.4.b.1.H.1 in the third sentence accurately corrects an erroneous citation and can be approved. This amendment also satisfies the required program amendment at 30 CFR 948.16(ddddd) which can, therefore, be removed.

We find that the addition of the words “except where a lesser vegetation cover has been authorized” does not, by itself, render the West Virginia program less effective than the Federal regulations and can be approved. It is our understanding that this exception acknowledges the provision at CSR 38-2-7.4.b.1.G.1, concerning ground cover vegetation. CSR 38-2-7.4.b.1.G.1 authorizes the Secretary of the WVDEP to allow lesser or no vegetative cover under specified circumstances when mulch or other stabilizing practices have been used to protect all disturbed areas, unless it is demonstrated that the reduced vegetative cover is sufficient to control erosion and air pollution attendant to erosion regardless of slope (see Finding 9 above). Our determination that the addition of the language quoted above does not render the West Virginia program less effective than the Federal regulations is based upon our understanding that, where lesser vegetative cover is allowed, the vegetative cover must be sufficient to control erosion and air pollution attendant to erosion.

This provision is amended by deleting the first word in the third sentence, and adding in its place the phrase “[a]bove and beyond all other standards in effect.” We find that this amendment clarifies that this provision is in addition to all other program requirements and does not render the West Virginia program less effective than the Federal regulations at 30 CFR 800.40 and can be approved.

This provision is amended by adding, in the third sentence, the phrase “meet the primary road requirements of section 2.4 of this rule” immediately following the words “Highway standards.” It appears that the term “section 2.4” contains a typographical error, and should read “section 4.” Section “2.4” is actually the definition of “acid producing coal seam,” whereas section CSR 38-2-4 concerns “haulage-ways, roads or access roads.”

This proposed amendment is intended to address the required program amendment codified at 30 CFR 948.16(ggggg). The Federal requirement at 30 CFR 948.16(ggggg) provides that CSR 38-2-7.5.i.1.B be amended, or that the West Virginia program otherwise be amended, to clarify that roads which meet the definition of road at CSR 38-2-2.59 and 4.1 and that are to be retained as part of the postmining land use must be designated and constructed to meet the primary road requirements of CSR 38-2-4. The State has complied with this requirement by requiring that “main roads” of homesteads shall meet the primary road requirements of section CSR 38-2-4. In addition, the county or State road authorities will accept responsibility for maintaining these homestead roads after mining. We are approving this amendment with the understanding that the apparent typographical error (“section 2.4”) is actually intended to be “section 4.” In addition, we are removing the required amendment at 30 CFR 948.16(ggggg) because it has been satisfied.

This provision is amended by adding a sentence to the end of this provision. The new sentence provides as follows: “The reservoir is subject to requirements under subsection 5.5 of this rule.” This amendment is intended to satisfy the required program amendment at 30 CFR 948.16(hhhhh).

The Federal requirement at 30 CFR 948.16(hhhhh) requires that CSR 38-2-7.5.i.3.Q be amended, or that the West Virginia program otherwise be amended, to require that all permanent impoundments approved for Homestead postmining land use must comply with CSR 38-2-3.6.b.1 and 5.5. We find that the proposed amendment satisfies the requirement to comply with CSR 38-2-5.5 and can be approved.

CSR 38-2-5.5 provides as follows:

We understand CSR 38-2-5.5 to mean that a permanent impoundment may be left in place if approved by the Secretary of WVDEP as part of the permit application or a revision to a permit. Compliance with the permit requirements would, of course, include compliance with the requirement at CSR 38-2-3.6.b.1 for a narrative explaining the construction, modification, use, and maintenance of permanent impoundments. Therefore, we find that the required program amendment at 30 CFR 948.16(hhhhh) is fully satisfied and can be removed.

This provision is amended by adding a sentence to the end of this provision. The new sentence provides as follows: “Any pond or impoundment left in place is subject to requirements under subsection 5.5 of this rule.” We are approving the amendment because it does not render the West Virginia program less effective than the Federal regulations at 30 CFR 816.49(b).

This provision is amended by adding the following definitions of O horizon and Cr horizon:

There are no Federal counterparts to the proposed definitions of “O” and “Cr” soil horizons. However, we find that the proposed definitions are not inconsistent with the Federal definition of “soil horizons” at 30 CFR 701.5 and can be approved.

This provision is amended by deleting the word “excessive” in the fourth sentence, immediately prior to the word “erosion.” This amendment is intended to satisfy the required program amendment codified at 30 CFR 948.16(mmmmm). The Federal requirement at 30 CFR 948.16(mmmmm) provides that CSR 38-2-7.5.j.6.A should be amended by deleting the word “excessive.” We find that the proposed amendment satisfies the required program amendment codified at 30 CFR 948.16(mmmmm) and can be approved. In addition, 30 CFR 948.16(mmmmm) can be removed.

This provision is being amended by adding the following language to the end of the existing provision:

As amended, this provision provides as follows:

The Federal regulations at 30 CFR 816.95(b) require that rills and gullies that either (1) disrupt the postmining land use or the reestablishment of the vegetative cover or (2) cause or contribute to the violation of water quality standards be filled, regraded, or otherwise stabilized. We understand the amended State provision to mean that a permittee is generally not authorized to repair rills and gullies, except those rills and gullies that are unstable and/ or disrupt the approved postmining land use, the establishment of vegetative cover, or cause or contribute to a violation of water quality standards for the receiving stream.

An area of potential concern with this provision is that it does not explicitly require the repair of rills and gullies that disrupt the approved postmining land use, the establishment of vegetative cover, or cause or contribute to a violation of water quality standards for the receiving stream. On the other hand, the proposed provision in no way prohibits the repair of such rills and gullies. Moreover, the approved State program already requires restoration of the premining land use, or establishment of an approved alternative postmining land use after mining, (CSR 38-2-7.1.a., 7.3., respectively), the establishment of vegetative cover (38-2-7.4.b.1.G), and compliance with applicable water quality standards (CSR 38-2-14.5.b). It necessarily follows from these provisions that rills and gullies that could prevent compliance with the above requirements must be filled, regraded, or otherwise stabilized. For this reason, we find that the proposed amendment at CSR 38-2-7.5.j.6.B, taken in concert with the above-referenced State program requirements, does not render the program less effective than 30 CFR 816.95(b) and can be approved so long as it is implemented in a manner consistent with that Federal provision. If, in future reviews, we should determine that West Virginia is implementing this provision in a manner that is inconsistent with this finding, a further amendment may be required. In addition, we find that this amendment satisfies the required program amendment codified at 30 CFR 948.16(nnnnn), which can, therefore, be removed.

This provision is amended by deleting the words “rock cover” from the list that defines “ground cover.” This amendment is intended to satisfy the required program amendment codified at 30 CFR 948.16(qqqqq), which requires the deletion of the words “rock cover” from CSR 38-2-7.5.o.2. We find that the proposed amendment satisfies the required program amendment at 30 CFR 948.16(qqqqq) and can be approved. In addition, we find that 30 CFR 948.16(qqqqq) can be removed.

This is a new provision and provides as follows:

We find that this provision, although codified as a performance standard, is substantively identical to the Federal counterpart regulations at 30 CFR 785.17(e)(5) and can be approved because the State's permit findings for prime farmland at subsection 3.20 would require compliance with it.

This subsection concerning open acre limit bonding has been deleted. In its submittal of this amendment, WVDEP stated that CSR 38-2-11.5 was deleted because these bonding provisions were obsolete and no longer utilized in the State. There is no Federal counterpart to this deleted provision. However, we find that its deletion does not render the West Virginia program less effective than the Federal regulations and can be approved.

Subdivision 38-2-11.5.a. was amended by deleting a requirement in the fifth paragraph that existing permits be reviewed at mid-term to determine adequacy of existing bond. As amended, bond adequacy would be evaluated only at the time of permit renewal. In addition, the bond adequacy determination criteria at CSR 38-2-11.5.a.1 through a.5 are deleted. Finally, the paragraph following 38-2-11.5.a.5., concerning operations with inactive status, was deleted.

In its submittal of these revisions, WVDEP stated that the purpose of these amendments was to update this section. The Federal regulations at 30 CFR 800.15(a), concerning adjustment of bond amount, provide that the amount of the permittee's bond or deposit shall be adjusted from time to time as the area requiring bond coverage is increased or decreased or where the cost of future reclamation changes. In addition, 30 CFR 774.10 requires regulatory authorities to review outstanding permits during the term of the permit. The deletion of the requirement for mid-term review at CSR 38-2-11.5.a appears to render the West Virginia program less effective than the Federal requirements at 30 CFR 774.10 and 800.15(a). However, W. Va. Code 22-3-19(c) continues to require the mid-term review, wherein the WVDEP may require reasonable revisions or modifications of a permit, based on written findings.

The deletion of the bond adequacy determination criteria at 38-2-11.5.a.1. through 11.5.a.5. does not render the State rules less effective than the Federal regulations. Despite the deletion of the criteria at 11.5.a.1. through 5., the State rules at 38-2-11.5.b. through 11.5.f. provide the criteria to determine the site-specific bond amount. Therefore, the deletion of CSR 38-2-11.5.a.1 through 11.5.a.5 can be approved.

The deletion of the paragraph following CSR 38-2-11.5.a.5, concerning operations with inactive status, does not render the West Virginia program less effective, because the site-specific criteria for determining the appropriate bond at CSR 38-2-11.5.b through 11.5.f apply to all operations, including those on inactive status. All existing permits with inactive status have been reviewed by the State since these requirements took effect and their bonds have been adjusted to comply with the site-specific bonding requirements. Therefore, the deleted paragraph concerning inactive status that appeared immediately following CSR 38-2-11.5.a.5 is no longer necessary and the deletion can be approved.

This provision is amended by updating, from 1993 to 2002, the date that the AMD bond forfeiture inventory must be submitted to the West Virginia Legislature. In addition, the submittal of the inventory will be required annually. In its submittal of this amendment, WVDEP stated that the change will make its rules consistent with the W.Va. Code. We find that these amendments do not render the West Virginia program less effective than the Federal regulations and can be approved.

This provision concerns the procedures for obtaining an AOC variance for steep slope mining operations, and is amended by deleting the words “commercial forestry.” This amendment is intended to satisfy the required program amendment codified at 30 CFR 948.16(eeeee). The Federal requirement at 30 CFR 948.16(eeeee) provides that the State must delete the words “commercial forestry” at CSR 38-2-14.12.a.1. This revision was necessary because agricultural uses, which may include commercial forestry, are not authorized postmining land uses for steep slope mining operations seeking a variance from the AOC restoration requirements at section 515(e)(2) of SMCRA. The deletion of the words “commercial forestry” at subsection 14.12.a.1 is no less effective than the Federal requirements at 30 CFR 785.16(a)(1). Therefore, we find that this amendment satisfies the required program amendment codified at 30 CFR 948.16(eeeee) and can be approved. In addition, the required program amendment at 30 CFR 948.16(eeeee) can be removed.

This provision is amended by deleting the term 5 percent, and adding in its place the term 10 percent. As amended, this provision provides that production from the following operations shall be attributed to the applicant:

We find that this revision renders the provision substantively identical to and no less effective than the counterpart Federal SOAP eligibility provision at 30 CFR 795.6(a)(2)(ii), and can be approved. In addition, we find that the proposed State revision satisfies that portion of our 732 letter dated July 22, 1997, regarding SOAP eligibility requirements.

This provision is amended by adding new subdivisions 17.4.a through 17.4.f.2 to provide as follows:

17.4. Request for Assistance. Each applicant requesting assistance shall provide information on forms provided by the Secretary in an application that shall be clear and concise and shall be provided in a format prescribed by the Secretary and/or a format required by the Federal Office of Surface Mining Reclamation and Enforcement. Each application for assistance shall include the following information:

17.4.a. A statement of the operator's intent to file a permit application;

17.4.b. The names and addresses of:

17.4.b.1. The permit applicant; and

17.4.b.2. The operator, if different from the applicant.

17.4.c. A schedule of the estimated total production of coal from the proposed permit area and all other locations from which production is attributed to the applicant. The schedule shall include for each location:

17.4.c.1. The operator or company name under which coal is or will be mined;

17.4.c.2. The permit number and Mine Safety and Health Administration (MSHA) number;

17.4.c.3. The actual coal production during the year preceding the year for which the applicant applies for assistance and production that may be attributed to the applicant; and

17.4.c.4. The estimated coal production and any production which may be attributed to the applicant for each year of the proposed permit.

17.4.d. A description of:

17.4.d.1. The proposed method of coal mining;

17.4.d.2. The anticipated starting and termination dates of mining operations;

17.3.d.3. The number of acres of land to be affected by the proposed mining operation; and

17.4.d.4. A general statement on the probable depth and thickness of the coal resource including a statement of reserves in the permit area and the method by which they were calculated.

17.4.e. A U.S. Geological Survey topographic map at a scale of 1:24,000 or larger or other topographic map of equivalent detail which clearly shows:

17.4.e.1. The area of land to be affected;

17.4.e.2. The location of any existing or proposed test borings; and

17.4.e.3. The location and extent of known workings of any underground mines.

17.4.f. Copies of documents which show that:

17.4.f.1. The applicant has a legal right to enter and commence mining within the permit area; and

17.4.f.2. A legal right of entry has been obtained for the program administrator and laboratory personnel to inspect the lands to be mined and adjacent areas to collect environmental data or to install necessary instruments.

We find these new provisions, which list information required to be submitted by applicants filing for SOAP assistance, are substantively identical to and no less effective than the counterpart Federal regulations at 30 CFR 795.7 and can be approved. In addition, we find that the proposed State revision satisfies that portion of our 732 letter dated July 22, 1997, regarding inadequate SOAP application requirements.

17.6.a. Qualified Laboratories.

The State proposes to amend its definition of qualified laboratory. These laboratories provide services under SOAP. This provision is amended by adding the word “institution” between the words “private consulting firm” and “or analytical laboratory.” In addition, the following words are being added immediately following the words “or analytical laboratory:”

As amended, subdivision 17.6.a. provides as follows:

The Federal requirements at 30 CFR 795.9 provide the requirements concerning SOAP program services and data requirements. We find that as amended, the definition of qualified laboratory at subdivision 17.6.a. is substantively identical to and no less effective than the counterpart Federal definition of “qualified laboratory” at 30 CFR 795.3.

The Federal definition of qualified laboratory at 30 CFR 795.3 provides that a qualified laboratory must be capable of providing the services identified at 30 CFR 795.3, “or other services as specified at 30 CFR 795.9 under the Small Operator Assistance Program and that meets the standards of section 795.10.” The amended definition of qualified laboratory at subdivision 17.6.a does not contain the specific citation as to the location in the West Virginia program of the “other services” that a qualified laboratory must be capable of providing. However, some of the other services offered under SOAP are specified in the West Virginia program at W. Va. Code 22-3-9(b). Therefore, we find that the lack of a specific citation at subdivision 17.6.a as to the location of the “other services as specified under the Small Operator Assistance Program,” does not render the definition of “qualified laboratory” less effective than the counterpart Federal definition. However, not all services offered under SOAP at 30 CFR 795.9 are yet identified at W.Va. Code 22-3-9(b). As requested through our 732 letter dated July 22, 1997, the State still needs to amend its SOAP rules at section 17 to include all services provided under 30 CFR 795.9.

In addition, the State definition of “qualified laboratory” lacks a counterpart to the Federal requirement that a “qualified laboratory” must meet the standards of 30 CFR 795.10 concerning qualified laboratories. However, subdivision 17.6.b, concerning basic qualifications for laboratories or contractors, provides that to qualify for designation as a qualified laboratory, the laboratory or contractor must demonstrate compliance with the requirements specified at CSR 38-2-17.6.b and 17.6.c. These provisions are the State counterparts to the Federal requirements at 30 CFR 795.10. Therefore, we find that the lack of a specific counterpart at subdivision 17.6.a to the Federal requirement that a “qualified laboratory” meet the standards of 30 CFR 795.10 does not render the State definition of “qualified laboratory” less effective than the counterpart Federal definition.

For all the reasons stated above, we find that the State's definition of qualified laboratory at subsection 17.6.a is no less effective than the Federal definition at 30 CFR 795.3 and can be approved. In addition, we find that the proposed State revision satisfies that portion of our 732 letter dated July 22, 1997, regarding qualified laboratory. As West Virginia complies with the requirement to amend section 17 to identify all the program services as provided under 30 CFR 795.9, those additional services will automatically fall within the requirement that they be performed by a qualified laboratory since the definition approved here includes all services provided under SOAP.

No public comments were received in response to our request for comments from the public on the proposed amendment.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on June 14, 2002, and August 7, 2002, we requested comments on these amendments from various Federal agencies with an actual or potential interest in the West Virginia program (Administrative Record Numbers WV-1314 and WV-1321, respectively). By letters dated July 11, 2002, and September 20, 2002, the U.S. Department of Labor's Mine Safety and Health Administration (MSHA) responded (Administrative Record Numbers WV-1320 and WV-1331). MSHA stated that it finds no changes or issues that impact upon coal miners' health and safety and that there is no conflict with MSHA regulations.

In addition, the U.S. Department of the Interior's Fish and Wildlife Service (USFWS) responded to our request for comments on September 10, 2002 (Administrative Record Number WV-1329). USFWS provided comments pursuant to the Fish and Wildlife Coordination Act and the Endangered Species Act. These comments, however, are targeted at sections of the amendment that are not being considered for approval in this rulemaking, but that have been addressed in our decision on WV-096 or will be considered at a later date for WV-089. State program amendment WV-096 and the discussion of any comments received on it were the subject of a notice published in the Federal Register on December 3, 2002 (67 FR 71832-71840). We have not rendered a final decision on State program amendment WV-089, which was submitted in response to several outstanding 732 letters. Any comments pertaining to those outstanding requirements will be addressed when the final rule is published in the Federal Register at a later date.

USFWS also identified typographical errors in two subsections that are not being revised in this amendment. At CSR 38-2-7.4.b.1.C.6, the citation “7.4.d.1.C.4” should be “7.4.b.1.C.4.” At CSR 38-2-7.4.b.1.D.12, the citation “7.4.d.1.D” should be “7.4.b.1.D.” We will inform WVDEP about these typographical errors.

Under 30 CFR 732.17(h)(11)(ii), we are required to obtain written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). On June 14, 2002, we requested concurrence and comments from EPA on House Bill 4163 (Administrative Record Numbers WV-1313). On August 7, 2002, we requested comments from EPA on Senate Bill 2002 (Administrative Record Number WV-1321).

EPA responded to both requests by letter dated October 28, 2002 (Administrative Record Number WV-1340). EPA concurred on the proposed amendments and provided comments on sections of the amendment that are not being considered for approval in this rulemaking. As discussed above, their comments have been addressed in our decision on WV-096 or will be considered at a later date in our decision on WV-089.

Based on the above findings, we are approving the amendments to the West Virginia program as submitted to us on April 9, 2002, and June 19, 2002. In addition, the following required program amendments are satisfied and can be removed: 30 CFR 948.16 (rrrr), (ssss), (tttt), (uuuu), (vvvv), (xxxx), (yyyy), (zzzz), (bbbbb), (ccccc), (ddddd), (eeeee), (ggggg), (hhhhh), (mmmmm), (nnnnn), and (qqqqq).

To implement this decision, we are amending the Federal regulations at 30 CFR Part 948, which codify decisions concerning the West Virginia program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

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

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

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

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

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This final rule applies only to the West Virginia program and therefore does not affect tribal programs.

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

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

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

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

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

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations.

On August 2, 1990, upon Iraq's invasion of Kuwait, the President issued Executive Order 12722, declaring a national emergency with respect to Iraq. This order, issued under the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq. ), the National Emergencies Act (50 U.S.C. 1601 et seq. ), and section 301 of title 3 of the U.S. Code, imposed economic sanctions, including a complete trade embargo, with respect to Iraq. In keeping with United Nations Security Council Resolution 661 of August 6, 1990, and under the United Nations Participation Act (22 U.S.C. 287c), the President also issued Executive Order 12724 of August 9, 1990, which imposed additional restrictions. The Iraqi Sanctions Regulations, 31 CFR part 575 (the “Regulations”), implement Executive Orders 12722 and 12724 and are administered by the Treasury Department's Office of Foreign Assets Control (“OFAC”).

On May 22, 2003, the United Nations Security Council adopted Resolution 1483, which substantially lifted the multilateral economic sanctions with respect to Iraq. On May 23, 2003, OFAC issued a general license that reflected Resolution 1483. This general license is published today as new section 575.533 of the Regulations.

Paragraph (a) of section 575.533 authorizes all transactions that are otherwise prohibited by subpart B of the Regulations, with four exceptions addressed in paragraph (b). Paragraph (b)(1) provides that all property and interests in property, including accounts, that were blocked pursuant to subpart B of the Regulations as of the effective date of this section remain blocked and subject to the prohibitions and requirements of the Regulations.

Paragraph (b)(2) provides that the exportation from the United States or, if subject to U.S. jurisdiction, the exportation or reexportation from a third country to Iraq of any goods or technology (including technical data or other information) controlled by the Department of Commerce under the Export Administration Regulations (15 CFR chapter VII, subchapter C) for exportation to Iraq must be separately authorized by OFAC. The note to paragraph (b)(2) explains the scope of the term “controlled by the Department of Commerce” and requests that exporters and reexporters contact the Department of Commerce, Bureau of Industry and Security, to inquire whether particular goods or technology are so controlled.

Paragraph (b)(3) provides that the general license does not authorize transactions with three classes of persons: (i) Specially-designated nationals or “SDNs” of the Government of Iraq, (ii) persons on the Defense Department's 55-person Watch List, or (iii) persons identified by the 661 Committee pursuant to paragraphs 19 and 23 of United Nations Security Council Resolution 1483, adopted May 22, 2003. To the extent that such transactions would otherwise be prohibited by the Regulations, they remain prohibited.

Paragraph (b)(4) provides that the general license does not authorize transactions with respect to Iraqi cultural property or other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq since August 6, 1990. Any trade in or transfer of such items, including items with respect to which reasonable suspicion exists that they have been illegally removed, remains prohibited by subpart B of the Regulations. The note to paragraph (b)(4) refers inquiries concerning particular Iraqi cultural property to the Cultural Property Office at the Department of State.

Paragraph (c) provides that the effective date of the section is May 23, 2003.

Examples of newly-authorized transactions include investment by U.S. persons in Iraq, the importation of goods or services of Iraqi origin (with the exception of the cultural properties described in paragraph (b)(4)), travel-related transactions involving Iraq, the transfer of funds to or from Iraq, and transactions related to transportation to or from Iraq. This authorization, however, does not eliminate the need to comply with other provisions of 31 CFR chapter V or with other applicable provisions of law, including any aviation, financial, or trade requirements of agencies other than OFAC. Such requirements include the International Traffic in Arms Regulations (22 CFR chapters 120-130) administered by the Department of State.

Because amendment of these regulations involves a foreign affairs function, the provisions of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 553) (the “APA”) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, are inapplicable. However, because of the importance of the issues addressed in these regulations, this rule is being issued in interim form and comments will be considered in the development of a final rule. Accordingly, OFAC encourages interested persons who wish to comment to do so at the earliest possible time to permit the fullest consideration of their views. Comments may address the impact of the regulations on the submitter's activities, whether of a commercial, non-commercial or humanitarian nature, as well as changes that would improve the clarity and organization of the regulations.

The period for submission of comments will close August 26, 2003. The address for submitting comments appears near the beginning of this document. OFAC will consider all comments received before the close of the comment period in developing final regulations. Comments received after the end of the comment period will be considered if possible, but their consideration cannot be assured. OFAC will not accept public comments accompanied by a request that a part or all of the submission be treated confidentially because of its business proprietary nature or for any other reason. OFAC will return such a submission to the originator without considering the comments in the development of final regulations. In the interest of accuracy and completeness, OFAC requires comments in written form.

All public comments on these regulations will be a matter of public record. Copies of the public record concerning these regulations will be made available not sooner than September 25, 2003, and will be obtainable from OFAC's Web site http://www.treas.gov/ofac. If that service is unavailable, written requests for copies may be sent to Office of Foreign Assets Control, U.S. Department of the Treasury, 1500 Pennsylvania Ave, NW., Washington, DC 20220, Attn: Chief, Records Division.

This document is available as an electronic file on the Federal Bulletin Board the day of publication in the Federal Register . By modem, dial 202/512-1387 and type “/GO FAC,” or call 202/512-1530 for disk or paper copies. This file is available for downloading without charge in ASCII and Adobe Acrobat readable (*.PDF) formats. For Internet access, the address for use with the World Wide Web, Telnet, or FTP protocol is fedbbs.access.gpo.gov. This document and additional information concerning OFAC are available from OFAC's Web site http://www.treas.gov/ofac.

The collections of information related to these regulations can be found in 31 CFR part 501. Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been previously approved by the Office of Management and Budget under control number 1505-0164.

The Coast Guard did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The permit application was not received in time to publish an NPRM followed by a final rule before the effective date. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments previously with regard to this event.

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

The safety zone will encompass all waters of the St. Clair River surrounding the fireworks launch platform bounded by the arc of a circle with a 300-yard radius with its center in approximate position 42°58′00″ N, 082°25′17″ W. The geographic coordinates are based upon North American Datum 1983 (NAD 83). The size of this zone was determined using the National Fire Prevention Association guidelines and local knowledge concerning wind, waves, and currents.

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene patrol representative. Entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on-scene representative. The designated on-scene representative will be the Patrol Commander. The Patrol Commander may be contacted via VHF Channel 16.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed this rule under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This determination is based on the minimal time that vessels will be restricted from the safety zone.

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

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

This rule will affect the following entities, some of which might be small entities: The owners or operators of commercial vessels intending to transit or anchor in the activated safety zone.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone is only in effect from 7 p.m. until 11:30 p.m. on the day of the event and allows vessel traffic to pass outside of the safety zone. Before the effective period, the Coast Guard will issue maritime advisories widely available to users of Lake Huron by the Ninth Coast Guard District Local Notice to Mariners and Marine Information Broadcasts. Facsimile broadcasts may also be made.

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

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

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

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

The Coast Guard has analyzed this rule under Executive Order 13132, Federalism, and has determined that this rule does not have implications for federalism under that Order.

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

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

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

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

The Coast Guard has considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

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

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

On April 13, 1998, the Commonwealth of Virginia submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of a regulation to implement a state operating permit program that provides a procedural and legal basis for the issuance of federally enforceable operating permits. On October 1, 1999, Virginia also requested approval of its 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 February 23, 1993, EPA approved a revision to Virginia's SIP at 40 CFR 52.2420(c)(94) (currently cited as 40 CFR 53.2465(c)(94) pertaining to the Commonwealth's state operating permit program, previously Virginia Regulations for the Control of Air Pollution Part VIII, Section 120-08-04 (currently cited as 9 VAC 5-80-40.) ( See, 58 FR 10982.) This state operating permit program allowed for the issuance of federally enforceable state operating permits or FESOPs. All sources of air pollution in Virginia with emissions above identified threshold levels were required to obtain a state operating permit. State operating permits under this program were considered federally enforceable if they were subject to the public participation provisions of the program.

In its April 13, 1998 SIP revision request, Virginia is seeking to replace the state operating permit program approved by EPA at 40 CFR 52.2465(c)(94) with a new permit program. In fact, Virginia has repealed 9 VAC 5-80-40. (However, state operating permits issued in accordance with this version of the permit program will remain federally enforceable, if applicable, until the permit expires or Virginia issues a superseding permit.) The new state operating permit program that is the subject of this action is fundamentally very similar to the previous permit program. The main distinction is that for most stationary sources of air pollution the new program is voluntary rather than compulsory.

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 Virginia'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 April 13, 1998, the Commonwealth of Virginia submitted an administratively and technically complete SIP revision request for approval of its state operating permit program. The permit program, 9 VAC 5-80-800 through 1040, provides 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 explicitly requires, at 9 VAC 5-80-850.G, that permits issued under the program ensure that the permittee shall adhere to all terms and conditions contained in its permit. The general provisions of the permit program at 9 VAC 5-80-820.F establish that permits are considered “federally enforceable” only if they meet the requirements of the permit program and of EPA's underlying regulations. The list of requirements includes those criteria discussed in this document. Furthermore, the permit program's definitions of “enforceable as a practical matter” and “federally enforceable” require that permit terms must meet EPA's minimum criteria for federal enforceability, including public participation and practical enforceability requirements.

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). The permit program, at 9 VAC 5-80-820.F, requires that all “federally enforceable” permits shall contain emission limitations and other requirements that are at least as stringent as any applicable limitation in the SIP. The program also establishes that no permit shall contravene the requirements of any other permit ( e.g. new source review permit) issued to a particular permittee.

Criterion 4. The limitations, controls, and requirements of the state operating permits must be permanent, quantifiable, and otherwise enforceable as a practical matter. The permit program defines “enforceable as a practical matter” to mean that a permit condition is permanent, quantifiable, and technically accurate and quantifiable. Also, emission limitations must provide averaging times that are at least monthly or shorter. Sufficient recordkeeping, reporting, and monitoring provisions must also be provided to ensure compliance. Furthermore, the regulation states that a permit condition must be “enforceable as a practical matter” in order to be considered “federally enforceable.”

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. The “federally enforceable” permits issued under the permit program are subject to public participation. The permit program's public participation provisions at 9 VAC 5-80-1020 require that for a permit to be federally enforceable the draft permit must be subject to a 30-day public comment period that is adequately publicized. The permit program also provides the opportunity for a public hearing. The general provisions of the permit program at 9 VAC 5-80-820.F require Virginia to provide EPA with a copy of the draft permit and final permit on a timely basis.

Permits that do not undergo the public participation provisions of 9 VAC 5-80-1020 are not considered federally enforceable state operating permits. Such permits are only enforceable by the Commonwealth of Virginia unless action is taken to otherwise confer federal enforceability on an individual permit ( e.g. approval of a state permit as part of a source-specific SIP revision.) As discussed earlier, Virginia's revised state operating permit program is voluntary. Likewise, the decision to issue an operating permit that is also federally enforceable is a discretionary authority of the Commonwealth of Virginia. Therefore, only a certain number of the permits issued pursuant to Virginia's operating permit program will be “federally enforceable'.

In conclusion, Virginia'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. Virginia is also seeking approval of its state 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, the Commonwealth of Virginia's October 1, 1999 request for authority to regulate hazardous air pollutant (HAPs) through the issuance of a federally enforceable state operating permit. Approval pursuant to section 112(l) of the Act would grant the Commonwealth 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 Commonwealth'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 Commonwealth'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 Commonwealth's state operating permit program pursuant to section 112(l) of the Act because the program meets the 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 Commonwealth's state operating 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, the Commonwealth has included in its state operating permit program provisions for the collection of fees from sources obtaining permits. Furthermore, EPA believes that the Commonwealth's 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 Commonwealth's 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 Commonwealth's 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.

Virginia's operating permit program regulations became effective on April 1, 1998. The Commonwealth has been implementing this program since that date. Upon the effective date of EPA's approval of this program, all permits issued by Virginia pursuant to, and in adherence with, the requirements of 9 VAC 5-80-800 through 1040, in general, and meeting the specific requirements of 9 VAC 5-80-1020, specifically, shall be considered federally enforceable state operating permits. Likewise, any permits issued after the effective date of this action may be considered federally enforceable provided they meet the same conditions.

Each permit that meet the requirements of 9 VAC 5-80-800 through 1040, including 9 VAC 5-80-1020 are to be considered federally enforceable in their entirety. The EPA does not interpret Virginia's regulations to allow for an individual operating permit to have both federal enforceable and state-only enforceable conditions or sections. The EPA does not believe it is the Commonwealth's intention to attempt to implement its program in such a manner.

Since Virginia's operating permit program provides for the issuance of federal enforceable permits and state-only enforceable permits, EPA believes it is important for the Commonwealth to clearly identify the enforceability status of each permit it issues within the body of the permit. Such identification is critical for the proper implementation of this program and other programs such as the Commonwealth's title V operating permit program. When it issues a federally enforceable operating permit, Virginia should also ensure that the proper and appropriate documentation associated with fulfilling the requirements of 9 VAC 5-80-1020 are maintained as an intrinsic part of the permit document.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1997, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1997 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its operating permits program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law.

The EPA is approving the Commonwealth of Virginia's state operating permit program pursuant to sections 110 and 112 of the 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 26, 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. The EPA will address all public comments in a subsequent final rule based on the proposed rule. The 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 VA087-5057 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 campbell.dave@epa.gov, attention VA087-5057. 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 26, 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 Virginia's state operating permit program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On March 3, 2003 (68 FR 9892), EPA conditionally approved revisions to Indiana's PSD SIP which were submitted to EPA as a requested SIP revision on February 1, 2002. At that time, EPA incorrectly stated the effective date of the State rules incorporated by reference in 40 CFR 52.770(c)(147).

As published, the final rule contains an incorrect citation of the effective date of some of the rules incorporated by reference. This error was published in the third column on page 9895. Unless this error is corrected, persons seeking a copy of the rules incorrectly cited in the codification of the final rule will be unable to locate the correct document. EPA regrets any inconvenience that this incorrect citation has caused.

On May 13, 2003, we published a direct final rule (68 FR 25507) and a parallel proposal (68 FR 25548) amending the fee provisions of the Federal Operating Permits Program. The amendment extended the date by which State-exempt major agricultural sources in California must pay fees and allowed their permit applications to be considered complete even though fees may not have been paid on or before the date that applications are due.

We stated in the preamble to the direct final rule and parallel proposal that if we received significant adverse comment on the direct final rule, we would publish a timely withdrawal of the rule in the Federal Register . The direct final rule stated that the deadline for submitting public comments was June 12, 2003, and that the effective date of the provisions would be June 27, 2003.

Accordingly, the direct final rule is withdrawn as of June 27, 2003.

The Federal Emergency Management Agency makes the final determinations listed below of modified base flood elevations for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.

The modified base flood elevations are not listed for each community in this notice. However, this rule includes the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection.

The modifications are made pursuant to Section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq ., and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified base flood elevations are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities.

These modified elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

The changes in base flood elevations are in accordance with 44 CFR 65.4. National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

The modified base flood elevations are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection is provided.

Any request for reconsideration must be based upon knowledge of changed conditions, or upon new scientific or technical data.

The modifications are made pursuant to Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified base flood elevations are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities.

The changes in base flood elevations are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the National Flood Insurance Program. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This interim rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

The Federal Emergency Management Agency makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate, has resolved any appeals resulting from this notification.

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR Part 60.

Interested lessees and owners of real property are encouraged to review the proof. Flood Insurance Study and Flood Insurance Rate Map available at the address cited below for each community.

The base flood elevations and modified base flood elevations are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

The Federal Emergency Management Agency makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate, has resolved any appeals resulting from this notification.

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR Part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR Part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and Flood Insurance Rate Map available at the address cited below for each community.

The base flood elevations and modified base flood elevations are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

The Mental Health Parity Act of 1996 (MHPA) was enacted on September 26, 1996 (Pub. L. 104-204). MHPA amended the Public Health Service Act (PHS Act) and the Employee Retirement Income Security Act of 1974 (ERISA) to provide for parity in the application of annual and lifetime dollar limits on mental health benefits with dollar limits on medical/surgical benefits. Provisions implementing MHPA were later added to the Internal Revenue Code of 1986 (Code) under the Taxpayer Relief Act of 1997 (Pub. L. 105-34).

The provisions of MHPA are set forth in Title XXVII of the PHS Act, Part 7 of Subtitle B of Title I of ERISA, and Chapter 100 of Subtitle K of the Code. The Secretaries of Health and Human Services, Labor, and the Treasury share jurisdiction over the MHPA provisions. These provisions are substantially similar, except as follows:

• The MHPA provisions in the PHS Act generally apply to health insurance issuers that offer health insurance coverage in connection with group health plans and to certain State and local governmental plans. States, in the first instance, enforce the PHS Act for issuers. Only if a State does not substantially enforce the MHPA provisions under its insurance laws will the Department of Health and Human Services enforce the provisions, through the imposition of civil money penalties. Moreover, no enforcement action may be taken by the Secretary of Health and Human Services against any group health plan except certain State and local governmental plans.

• The MHPA provisions in ERISA generally apply to all group health plans other than governmental plans, church plans, and certain other plans. These provisions also apply to health insurance issuers that offer health insurance coverage in connection with such group health plans. Generally, the Secretary of Labor enforces the MHPA provisions in ERISA, except that no enforcement action may be taken by the Secretary against issuers. However, individuals may generally pursue actions against issuers under ERISA and, in some circumstances, under State law.

• The MHPA provisions in the Code generally apply to all group health plans other than governmental plans, but they do not apply to health insurance issuers. A taxpayer that fails to comply with these provisions may be subject to an excise tax under section 4980D of the Code.

The MHPA provisions are set forth in section 2705 of the PHS Act, section 712 of ERISA, and section 9812 of the Code. MHPA applies to a group health plan (or health insurance coverage offered by issuers in connection with a group health plan) that provides both medical/surgical benefits and mental health benefits. MHPA's original text included a sunset provision specifying that MHPA's provisions would not apply to benefits for services furnished on or after September 30, 2001. On December 22, 1997, the Departments of Health and Human Services, Labor, and the Treasury issued interim final regulations under MHPA in the Federal Register (62 FR 66931). The interim final regulations included this statutory sunset date.

On January 10, 2002, President Bush signed H.R. 3061 (Pub. L. 107-116), the 2002 Appropriations Act for the Departments of Labor, Health and Human Services, and Education (“Appropriations Act”). 1 This legislation extended MHPA's original sunset date under the PHS Act, ERISA, and the Code, so that MHPA's provisions in all three statutes would not sunset until December 31, 2002. The Appropriations Act did not specifically address whether MHPA's provisions in any of the three statutes applied retroactively during the “gap” that began upon the expiration of the original legislation (September 30, 2001) and ended on the day before enactment of the Appropriations Act (January 9, 2002).

On March 9, 2002, President Bush signed H.R. 3090 (Pub. L. 107-147), the Job Creation and Worker Assistance Act of 2002 (“Job Creation Act”). That legislation amended section 9812 of the Code (the mental health parity provisions), but did not amend the corresponding MHPA provisions in the PHS Act or ERISA. The Job Creation Act extended the sunset date under the Code to December 31, 2003. However, for services furnished “on or after September 30, 2001, and before January 10, 2002” it specifically precluded retroactive application of the Code's MHPA provision. In other words, the Code's provisions would not apply to services furnished during the “gap” between the original sunset date and the enactment of the Code's sunset extension in the Appropriations Act.

Because the Job Creation Act did not amend the MHPA provisions of the PHS Act or ERISA, we conclude that the MHPA provisions of the PHS Act apply during the “gap,” based on language in the Joint Committee on Taxation's technical explanation of H.R. 3090, the underlying bill that became the Job Creation Act. The Joint Committee report essentially explained that H.R. 3090 was undoing that part of the Appropriations Act that had “restored” the Code's MHPA provisions retroactively to September 30, 2001. Since the Appropriations Act made identical changes to the MHPA provisions of the Code, the PHS Act, and ERISA, that observation made by the Joint Committee on Taxation report clearly supports the conclusion that the Appropriations Act had “restored” the MHPA provisions of the PHS Act and ERISA as well. In other words, because the MHPA provision contained in the PHS Act was made retroactive by the Appropriations Act, and was not amended by the Job Creation Act, the PHS provisions were “restored” retroactively to September 30, 2001.

On December 2, 2002, President Bush signed H.R. 5716 (Pub. L. 107-313), the Mental Health Parity Reauthorization Act of 2002. This legislation further extends MHPA's sunset date under the PHS Act and ERISA so that MHPA's provisions will apply to any services furnished before December 31, 2003. The new legislation does not contain any language that conflicts with the technical explanation of the Joint Committee on Taxation, described above, and therefore does not change our conclusion that the PHS Act's MHPA provisions are retroactive to September 30, 2001.

These various amendments have not altered MHPA's scope. It continues to apply to a group health plan (or health insurance coverage offered by issuers in connection with a group health plan) that provides both medical/surgical benefits and mental health benefits. 2 As a result of the statutory amendments, and to assist employers, plan sponsors, health insurance issuers, and workers, the Department is publishing this amendment to the interim final regulations, conforming the regulatory sunset date to the new statutory sunset date. The Department is making the effective date of this amendment to the interim final regulations effective as of July 28, 2003. The Department is also making conforming changes extending the duration of the increased cost exemption to be consistent with the new sunset date.

Since the extension of this sunset date is essentially self-implementing, this amendment to the MHPA regulations is published on an interim final basis under section 2792 of the PHS Act.

This amendment to the interim final regulations is adopted under the authority contained in sections 2701 through 2763, 2791, and 2792 of the PHS Act (42 U.S.C. 300gg through 300gg-63, 300gg-91, and 300gg-92), as added by HIPAA (Pub. L. 104-191), and amended by MHPA (Pub. L. 104-204, as amended by Pub. L. 107-116, and Pub. L. 107-313).

We have examined the impacts of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 16, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.

Executive Order 12866 (as amended by Executive Order 13258, which merely reassigns responsibility of duties) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). Pursuant to the terms of the Executive Order, it has been determined that this action is not a “significant regulatory action” within the meaning of the Executive Order. Rather, it is an amendment to the 1997 interim final regulations that makes no substantive changes to those regulations, and merely extends the regulatory sunset date to conform to the new statutory sunset date added by Pub. L. 107-313. Because it is not a major rule, we are not required to perform an assessment of the costs and savings.

The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and government agencies. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6 million to $29 million in any 1 year. Individuals and States are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined, and we certify, that this rule will not have a significant economic impact on a substantial number of small entities.

In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined, and we certify, that this rule will not have a significant impact on the operations of a substantial number of small rural hospitals.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditure in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million. This rule will have no consequential effect on the governments mentioned or on the private sector.

Executive Order 13132 establishes certain requirements that an agency must meet when it publishes a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. We have reviewed this final rule and have determined that it will not have a substantial effect on State or local governments.

We have reviewed this rule and determined that, under the provisions of Pub. L. 104-121, the Contract with America Act, it is not a major rule.

This final rule responds to petitions for reconsideration of a final rule (64 FR 10786; Docket No. 98-3390) that was published on March 5, 1999 and that established a Federal Motor Vehicle Safety Standard (FMVSS) for child restraint anchorage systems (FMVSS No. 225, 49 CFR § 571.225). This is the third and final document responding to the petitions. The first two responses to petitions for reconsideration were published August 31, 1999 (64 FR 47566; Docket No. 99-6160), and July 31, 2000 (65 FR 46628; Docket No. 7648). A detailed summary of the petitions and the agency's responses thereto can be found in the “overview” section of the July 2000 final rule (65 FR at 46629).

This final rule resolves the issue of the appropriateness of the 15,000 N strength requirement for tether anchorages (S6.3 and S8.1 of FMVSS No. 225) and the 11,000 N strength requirement for the lower anchorages (S9.4.1(a)). Those strength requirements are unchanged from the March 1999 final rule. However, this final rule provides vehicle manufacturers an additional year of lead-time for the few vehicle models that might have to be redesigned to meet the requirements.

In this document, we are replacing the displacement limit of 125 millimeters (mm) of the 1999 final rule with different performance criteria for the performance of the tether anchorage, and slightly increasing the displacement limit for tests of the lower anchorages. In response to petitions for reconsideration of the length of time specified in the rule for the application of the required loads to the lower anchorages, we are reducing the time from 10 seconds to 1 second. We also address other issues concerning the installation and testing of anchorage systems, such as the configuration, location and marking of the lower bars, and the location of tether anchorages in sport utility vehicles (SUVs).

Finally, we deny a petition for reconsideration from Cosco, Inc., to exclude backless child restraint systems from the requirement in Standard No. 213 that the restraint systems have components that attach to a vehicle's child restraint anchorage system.

On March 5, 1999, NHTSA published a final rule establishing Federal Motor Vehicle Safety Standard No. 225, Child Restraint Anchorage Systems (64 FR 10786, docket 98-3390, notice 2). The rule required vehicle manufacturers to equip vehicles with new child restraint anchorage systems that are standardized and independent of the vehicle seat belts.

Each new system has two lower anchorages and one tether anchorage. Each lower anchorage includes a rigid round rod or bar onto which the connector of a child restraint system can be attached. The bars are located at the intersection of the vehicle seat cushion and seat back. The upper anchorage is a fixture to which the top tether strap of a child restraint system is to be hooked. (For convenience, this document refers to the child restraint anchorage system as the “LATCH” system. LATCH, an acronym for “Lower Anchors and Tethers for Children,” was a term developed by manufacturers and retailers in educating the public on the availability and use of the new system.) Standard No. 225 required vehicle manufacturers to begin phasing-in the tether anchorage of the LATCH system in the production year beginning September 1, 1999, with full implementation beginning September 1, 2000. Manufacturers were required to begin phasing-in the lower anchorages in the production year beginning on September 1, 2000, with full implementation beginning September 1, 2002. 1

A number of manufacturers submitted petitions for reconsideration of various aspects of the new standard, including the strength requirements for the anchorage system and the test procedures to be used by NHTSA to test for compliance with the requirements. 2 Some of the vehicle manufacturers believed that there was no safety need for requirements as stringent as those specified in the rule ( i.e. , for a 15,000 N strength requirement for tether anchorages (S6.3 and S8.1) and a 11,000 N strength requirement for the lower LATCH anchorages (S9.4.1(a)). They indicated that they could provide tether and lower anchorages meeting less-stringent Canadian requirements for the tether anchorage and less-stringent requirements for lower anchorages set forth in a draft standard being developed by a working group of the International Organization for standardization (ISO), by the compliance dates set forth in the March 1999 final rule, but they could not provide tether and lower anchorages meeting the more-stringent strength requirements established in that rule by those dates. The Alliance suggested that the agency either delay the effective date of the rule or adopt the Canadian requirements for the tether anchorage and the draft ISO requirements for the lower anchorages.

In response to concerns of several of the petitioners about the lead-time for and the stringency of the anchorage strength and other requirements in the March 1999 final rule, NHTSA published a final rule on August 31, 1999 (64 FR 47566, docket 99-6160). Among other things, the August 1999 rule permitted vehicle manufacturers to meet alternative requirements during an initial several year period. Until September 1, 2001, manufacturers were permitted to meet either the requirements in the March 1999 final rule or the less-stringent Canadian requirements for tether anchorages. Until September 1, 2002, manufacturers were permitted to meet the requirements for the lower anchorages consistent with those set forth in the draft ISO standard.

NHTSA balanced the benefits associated with vehicle manufacturers providing the new tether and lower anchorages, albeit ones meeting the less-stringent Canadian and draft ISO requirements, in accordance with the original schedule against the possible consequences of not providing for that alternative means of compliance. We concluded that, on balance, safety would be best served if the Canadian and draft ISO requirements were allowed as a compliance option for an interim period. We determined that the early availability of tether anchorages, even ones meeting the Canadian requirements, would promote safety by increasing the likelihood that parents will attach a top tether on a child restraint system. Compared to an untethered child restraint, a tethered child restraint offers improved protection against head impact in a crash. A tether anchorage that complies with the Canadian strength requirement will offer a level of safety that is significantly better than the one that would exist with no tether anchorage at all. We similarly concluded that lower anchorages meeting the draft ISO requirements would provide safety benefits for parents who have difficulty attaching a child restraint correctly in a vehicle or whose vehicle seats are incompatible with child restraints. Thus, the agency's adoption of these interim compliance alternatives made it possible to begin reaping the benefits of LATCH systems sooner than would have been possible under the March 1999 final rule.

The August 1999 final rule also responded to other issues. With regard to some issues, such as some of the technical ones addressing specifics on how an anchorage is to be tested and limiting the information that manufacturers have to provide in vehicle owners manuals on LATCH systems, the agency granted requests to amend the March 1999 rule. For some of the other issues, the agency denied or partially granted the petitions for reconsideration, which prompted the Alliance, Ford, Volkswagen, and Keiper GmbH & Co. (Keiper) to petition the agency to reconsider the decisions based on new information.

On July 31, 2000 (65 FR 46628, docket 7648), NHTSA published a final rule that extended, until August 31, 2004, the period during which vehicle manufacturers may meet the Canadian and draft ISO requirements. The final rule also addressed other issues concerning the installation of child restraint anchorage systems in vehicles and how those systems are tested in the agency's compliance tests. Those issues involved the configuration requirements for the bars set forth in the ISO provisions of S15 of Standard No. 225; how the agency determines the H-point of a seating position when evaluating whether a tether anchorage is properly located in a seating position; what the dimensions of the child restraint fixture (“CRF”) should be; and the applicability of the standard to small manufacturers, to manufacturers of vehicles that cannot meet the pitch, roll and yaw requirements with the child restraint fixture installed, and to manufacturers of vehicles temporarily excepted from the requirement of FMVSS No. 208, “Occupant Crash Protection,” to provide an air bag at the front passenger seating position.

The remainder of this document addresses the remaining issues that were raised in petitions for reconsideration of the aforementioned final rules.

i. Number of Tether Anchorages. The March 1999 final rule required that vehicles with three or more rear designated seating positions must have tether anchorages at not less than three positions in these vehicles. This requirement applied to passenger cars, as well as to multipurpose passenger vehicles (“MPVs”). 3 NHTSA required the third tether anchorage to improve the means of attaching child restraints at a center rear seating position. 64 FR at 10803. Because Standard No. 225 requires that the lower anchorages of a LATCH system be 280 mm apart, most vehicles do not have a rear seat that is wide enough to accommodate anchorages in the center seating position and in an adjacent outboard position. Accordingly, manufacturers will probably install LATCH systems in the two outboard seating positions, and not in a center and an outboard position. However, many parents prefer placing child restraints in a center rear seating position, believing, correctly, that such a position is generally safer for a child, particularly with respect to the risk of injury if the child were in an outboard position on the side that was struck in a side impact. 4 A child restraint installed properly in a center seating position and using the vehicle's belt system and a top tether will perform comparably to a child restraint installed using the three-point LATCH system. The tether anchorage in both systems provides safety benefits to the child. Thus, the requirement for the third tether anchorage improves the position that many parents will want to use for their child (the center seating position).

Some manufacturers objected to the requirement for a third tether anchorage in MPVs with five or fewer designated seating positions. (For convenience, since most MPVs with five or fewer seating positions are sport utility vehicles (SUVs), we will refer to these MPVs as “SUVs”.) In its petition for reconsideration of NHTSA's requirement for three anchorages, the Alliance stated that Transport Canada has required only two tether anchorages for SUVs, because of manufacturers' submissions to Transport Canada “which stated that the seating configurations and vehicle design constraints made the mandate of three tether anchors in the rear seat impracticable for such vehicles.” The Alliance also stated that some manufacturers state in their owner's manual not to install child restraints in the center position because those seating positions tend to be smaller in area. Thus, the Alliance asked that we amend our standard to require only two tether anchorages for SUVs with 5 or fewer seating positions.

NHTSA denied this request in the agency's August 1999 response to petitions for reconsideration (64 FR at 47570). The agency noted that manufacturers had not submitted any information to NHTSA that justified why SUVs, as a vehicle class, should have fewer tether anchorages than passenger cars or why a third tether anchor in the rear seat of these vehicles was impracticable. Further, the agency noted that SUVs were used as passenger-carrying vehicles, were increasing in popularity, and were used to carry children. Based on this information, NHTSA denied the request of the petitioners and retained the requirement for three tether anchorages. However, to provide manufacturers with lead-time to design and manufacture SUVs with three anchorages, the agency permitted manufacturers the option of installing only two tether anchorages during the interim period during which they could meet Transport Canada's requirements for tether anchorages. The interim period ends August 31, 2004.

The Alliance petitioned for reconsideration of this denial (NHTSA 99-6160-6). It stated that some SUV vehicle owner's manuals state that the center seat is not recommended for child restraint installation because the seat does not meet the provisions of the Society of Automotive Engineers (SAE) Recommended Practice J1819, “Securing Child Restraint Systems in Motor Vehicle Rear Seats,” due to a small center seating area. The petitioner stated that installing the third tether anchorage, and providing step-by-step instructions in the owner's manual for using the tether anchorage as required by a related provision of Standard No. 225, would be in direct conflict with the recommendation not to install a child restraint in that seating position. It said that “(c)ustomer confusion and dissatisfaction will result.”

NHTSA has decided not to change its requirement that three tether anchorages must be installed in all passenger vehicles with three or more rear designated seating positions (including SUVs). Currently, SUVs comprise about half of the new vehicles purchased each year and have increased in popularity as family vehicles. While some child restraints might not be able to fit in the small center seating position on some of the smaller SUVs, some other child restraints might be able to fit the position, especially if a parent is intent on making it fit. Many parents are likely to try very hard to install child restraints in the center rear seating position, as the center seat is generally safer than the outboard positions in nearside side impacts. Tethering a child restraint in those narrow center seating positions will better secure it in a crash. Also, the center rear seating position on larger SUV's with 5 designated seating positions could readily fit a child restraint. Thus, this document retains the requirement for three tether anchorages.

ii. Location of Tether Anchorages. The March 1999 final rule also specified that, in each vehicle with a rear designated seating position other than an outboard designed seating position, at least one tether anchorage must be at such a designated seating position. The Alliance petitioned for reconsideration of that requirement as it applied to MPVs with six or more designated seating positions. The petitioner stated that the requirement was not practical for some of these MPVs because “a child restraint installed in the center position will block ingress/egress for the third row outboard seating position in certain vehicles.” In its August 1999 response NHTSA denied the request, explaining its reasons, set forth in the preceding section, for requiring a tether in a center seating position. The agency also noted that, “As for practical problems with blocking ingress/egress for the third row, we believe the tether can be located to avoid such blockage. For example, the tether anchor could be attached to the ceiling or to the back of the lower part of the seat structure.” 64 FR at 47570, footnote 9.

The Alliance petitioned for reconsideration of this denial (Docket 99-6160-6). The petitioner explained that it was referring to two types of vehicles. For both vehicles, the petitioner believed that the center seating position was not likely to be the position where a child restraint would be fastened and that the center position on these vehicles should therefore be excluded from having a tether anchorage.

First were large SUVs that had three or more rows of seats, such as the seven- and eight-passenger versions of DaimerChrysler's Dodge Durango. These vehicles feature a 3-passenger second row (split 40/20/40 percent) and a 2-passenger third row. The second row seats occupy the full width of the vehicle. No aisle is provided for access to the rear seats, which is obtained by folding the seatback of the outboard 40% seat and “tumbling” the folded seat forward and out of the way. The petitioner explains that the only center seating position is the 20% portion of the second row. It believes that this seating position is not suited to a child restraint, because a restraint in the position overlaps the two inboard edges of the outboard seats, preventing them from folding to allow access to the rear seating positions. A child restraint in that position would also block the belt buckles in the outboard seating positions, so passengers seated outboard would not be able to buckle their seat belts. The second type of vehicle was a vehicle in which there is a middle seating position whose seatback is divided into two or more sections that may be folded independently of each other. The division between two sections lies substantially along the seating reference plane of the middle seating position.

NHTSA has decided to deny this request. The March 1999 final rule required a tether anchorage at a center seating position on vehicles that have a center rear seating position to address the concerns of commenters to the NPRM that such a seating position should have an improved means of attaching a child restraint. (As noted above, the rule does not require that a LATCH system be installed in a center position, because some vehicle rear seats might not be wide enough to accommodate two LATCH systems side-by-side.) NHTSA continues to believe that many parents will want to place their child in a center seating position, and will do so on a vehicle such as the Durango, particularly if the family is transporting just one child. A child is generally safer in the center seat than in an outboard position closest to a side impact. Equipping the center position with a tether anchorage provides these parents the option of using the center position and ensures that if the position were used, the benefits of a tether would be available to the restrained child. Without a tether anchorage at that position, optimal protection to the child could not be realized.

The petitioner's request is also denied with respect to vehicles of the second type described above, with a center seating position that has a seat back that folds along the vertical longitudinal centerline of the seating position. The zone in which the tether anchorage may be located within the vehicle is sufficiently large to give vehicle manufacturers flexibility in designing and locating anchorages that are practical. Current MPVs incorporate designs that locate tether anchorages in a variety of places, such as on the floor or the ceiling, which would avoid the petitioner's concerns about a tether strap sliding between a split seat back in the third row of seats.

In its petition for reconsideration, the Alliance asked for clarification that providing a user-ready tether anchorage at a seat that can be used at either an outboard or a non-outboard ( i.e. , center) seating position meets the subject requirement. The petitioner stated that some vehicles are now equipped with laterally adjustable vehicle seats that can be moved from an outboard position to a non-outboard position. The petitioner wanted to know how the agency would position such a movable seat in determining compliance with the requirement that a tether anchorage must be provided in a center seating position.

In response, NHTSA is adding regulatory text (S4.6) to specify that if a vehicle has a laterally adjustable seat capable of being used in a rear center position, but does not otherwise have a seat that could be regarded as a rear center seat, that adjustable seat will be considered by the agency to be a rear center seat and must be equipped with a tether anchorage usable when the seat is in the center position. The agency will put the adjustable seat in the center position because we believe many consumers will use it there when using a child restraint. On a related point, NHTSA is not prohibiting manufacturers from having removable seats, even where the removable seat is equipped with a required LATCH or tether anchor system. For example, manufacturers will be able to design minivans and SUVs such that the last row can be readily removable (and readily replaceable) by the consumer, even if the seat contained one of the required LATCH systems and the vehicle, without the seat, no longer had two full LATCH systems. The agency does not see a safety need to restrict the ability of the consumer to remove the seats. If the vehicle seat is readily replaceable, the consumer will have available the LATCH system when the anchorage system is needed. The agency has added language to S4.6 of the standard to make this clarification.

The March 1999 final rule contained requirements that implemented the agency's policies about where children should be restrained in vehicles. If the vehicle has a rear designated seating position, a LATCH system should be placed there. This is because children are safer seated in a rear seat than in the front seat, regardless of whether there is an air bag for the front passenger seating position. If there is no rear seat, the question of whether a LATCH system should be installed at the front passenger designated seating position is answered by whether that position is equipped with an air bag that cannot be turned off with a manual on-off switch. If an air bag is present that cannot be turned off, that seating position is unsuitable for a LATCH system. Some consumers may believe that the presence of a LATCH system signals that the designated seating position is an appropriate one in which a child restraint may be installed, which is incorrect. For that reason, the standard prohibits manufacturers from equipping the front passenger seating position with a LATCH system when an air bag on-off switch is not present. (A tether anchorage is required for the seating position, however. A tether anchorage can be less conspicuous than a LATCH system and does not encourage users to install child restraints at the seating position in the way that a LATCH system would. A tether anchorage is required at the position so that, if a forward-facing child restraint were installed there, the restraint could be tethered tightly against the seat and as far as possible from the air bag.)

Ford petitioned the agency to rescind the prohibition against installing a LATCH system in a front seating position equipped with an air bag that lacks a manual on-off switch. The petitioner believed that vehicle manufacturers should have the flexibility to install lower anchors in front seats voluntarily. GM petitioned NHTSA to allow voluntary installation of a LATCH system “in any passenger seating position even when an air bag on/off switch or automatic suppression is not present. We believe that adequate warnings are given to consumers to ensure a rear facing child seat will not be placed in front of an air bag.”

These petitions are denied. They are denied to the extent that they seek to allow manufacturers to install LATCH systems anywhere in the vehicle. NHTSA continues to believe that consumers would erroneously infer from the presence of a LATCH system in a front passenger seating position that the position can and should be used with a child restraint. An air bag that is not turned off could inflict serious or fatal injuries to a child in a rear-facing child restraint in the front passenger seating position. In addition, children are safer in rear seating positions. (Our analysis shows that rear seats are 26 percent safer against fatality for all children age 4 and under.) Thus, they should be restrained in rear seats. For these reasons, the standard will continue to require LATCH systems to be installed at rear seating positions, if such positions exist on the vehicle, and to disallow LATCH systems in front seating positions unless the vehicle is equipped with an air bag on-off switch.

The petitions are also denied concerning the installation of LATCH systems in a vehicle whose front passenger seating position has an air bag system certified to new requirements in Standard No. 208 ( i.e. , one that suppresses the air bag when it senses the presence of the infant, 3-year-old or 6-year-old child dummy) and that lacks a rear seat. Such a vehicle is different from a vehicle with no rear seat whose front passenger seating position is equipped with an air bag and an air bag on-off switch. With the front passenger air bag disabled by an air bag on-off switch, there is not any risk of injury to children from the air bag. It is too early to know if this is the case for vehicles with no rear designated seating positions and an advanced air bag certified to the new Standard No. 208 requirements. The agency does not believe that there is sufficient experience with air bag deactivation technology at this time. In fact, the allowance of on-off switches until 2012 was to allow manufacturers time to perfect the suppression and low risk deployment systems in all their vehicles, and provide additional time to assure that the advanced systems work properly (65 FR 30722). Thus, we have concluded that vehicles with no rear designated seating positions and an advanced air bag certified to new Standard No. 208 will not be allowed to have a LATCH system installed at a front passenger seating position unless the vehicle is equipped with an air bag on-off switch. We will revisit this matter in several years after an assessment of the technology and its performance.

For the same reasons, the petitions are denied to the extent concerning the installation of LATCH systems in a vehicle whose front passenger seating position has an advanced air bag system and that has a small rear seat ( i.e. , a rear seat meeting the conditions in S4.5.4.1(b) of Standard No. 208).

The July 31, 2000 response to petitions for reconsideration deleted certain requirements that were specified in S15 of Standard No. 225. (S15 sets forth the temporary compliance option available to manufacturers to meet draft ISO requirements for the lower anchorages.) S9.1 of the standard contains provisions that are identical to the ones that had been deleted from S15. Today's final rule amends S9.1 to reflect the changes that had been made to S15 and makes minor changes to improve the clarity of the requirements. These amendments respond to petitions for reconsideration submitted by the Alliance, Porsche, Honda, and VW.

S9.1.1(b) specifies that the lower anchorages of the LATCH system must consist of two bars that “whose centroidal longitudinal axes are collinear.” S9.1.1(d) and (e) require that lower anchorage bars be made so that they can be connected to, over their entire 25 mm length, by the connectors of a child restraint system, and so that they are 280 mm apart, measured from the center of the length of one bar to the center of the length of the other bar. These requirements are deleted as unnecessary. The requirements were adopted to ensure that the bars are sufficiently long and adequately spaced to couple effectively with the connectors of a child restraint system. These purposes can be achieved using the “child restraint fixture” (CRF) referenced in Standard No. 225, because the CRF rearward extensions are 280 mm apart and are 25 mm wide (see Figure 2 of Standard No. 225). Further, under S9.3, the vehicle must allow attachment of the CRF to the lower bars. Thus, the CRF's successful attachment to the anchorages would independently confirm that the anchorages are long enough to attach a child restraint system and spaced an appropriate distance apart.

S9.1.1(c) specifies that the lower anchorages must be not less than 25 mm, but not more than 40 mm in length. The limits were adopted in part to standardize the design of the lower bars. The 40 mm maximum length specification was also adopted to reduce the likelihood that the bars may bend in a crash. The Alliance and Porsche petitioned the agency to delete the 40 mm maximum length limit as unnecessary. Petitioners believed that as long as the anchorages meet the strength test requirements of the standard and can accommodate the CRF, the limit is not needed. Alternatively, the Alliance suggested that only one of the two LATCH bars in an outboard seating position need be limited, and that limit should be 50 mm.

NHTSA has decided not to delete the maximum length specification. We believe that limiting the length of the anchorage bars will contribute towards better performance of a child restraint in a side impact. NHTSA conducted side impact sled tests in response to the Transportation Recall Enhancement, Accountability and Documentation Act (the TREAD Act) (November 1, 2000, Pub. L. 106-414, 114 Stat. 1800). See Docket No. 02-12151. These simulations showed that limiting lateral movement and/or rotation of a child restraint in a side impact is important to reducing occupant head excursion in the crash and the likelihood of head impact against the vehicle side structure. We believe that limiting the length of the bars will limit the chances that the bar will bend in a crash, and will limit the ability of a child restraint to move laterally and/or rotate in a side impact. The effect cannot be quantified at this time. Moreover, limiting the length of the bars also increases the uniformity of appearance to consumers. However, to provide more design and manufacturing flexibility to manufacturers, this rule increases the maximum bar length from 40 mm to 50 mm.

Bornemann Products Incorporated asked whether the “not less than 25 mm but not more than 40 mm” language in S9.1.1(c) refers to the inside opening of the anchorages (bars), or to the overall length of the bar including the 6 mm steel material. The answer is the inside opening of the bar, and not the overall length of it. We are adding a figure to the standard to clarify the meaning of S9.1.1(c).

S9.1.1(f) requires that the lower bars must be “an integral and permanent part of the vehicle or vehicle seat.” The Alliance stated that the strength requirements of the standard obviate the need for this requirement. The petitioner also inquired whether threaded fasteners are permissible. Honda asked whether fastening anchorages to the vehicle with bolts would be acceptable.

Our answers are that we agree with the Alliance that the strength requirements of the standard obviate the need to specify that the anchorages are “integral and permanent.” Thus, the words are deleted from the regulatory text. In response to Honda, anchorages that are bolted into the vehicle are acceptable, provided that they cannot be removed without the use of a tool, e.g. , a screwdriver or wrench. Specifying that the bars are attached to the vehicle or vehicle seat such that they can only be removed by use of a tool, and specifying the type of tool, makes the requirement more objective while limiting how easily the bars can be removed.

The agency emphasizes that it does not believe that the anchorage system should be designed with the intent of having consumers remove and/or replace the anchorages. The anchorages should be permanent features of the vehicle, similar to seat belts. Anchorages that can be removed have many potential problems associated with them. They might not be present when needed; when reinstalled they might not be correctly located and aligned in the vehicle or be strong enough to properly secure the child restraint to the vehicle. There should be no instruction in owners' manuals instructing owners how to remove the anchorage system from a vehicle.

Stated generally, S9.2 requires that each LATCH lower anchorage bar be located so that it is (a) not more than 70 mm behind a point Z of the CRF while the CRF is pressed against the seat back by the rearward application of a horizontal force of 5 Newtons (N); and (b) not less than 120 mm behind the vehicle seating reference point. General Motors petitioned to increase the maximum allowable distance (70 mm) behind the CRF to allow a more rearward location of the rigid lower anchorages. Alternatively, GM suggested that NHTSA should delete the 5 N rearward force specification, or increase it to allow the CRF to be pressed harder against the seat back. The Alliance stated in a June 2, 2000 letter that the value should be deleted, or increased to 150 N.

We have decided not to delete the rearward force specification. The purpose of the specification was to make the procedure for locating the LATCH lower anchorages as objective as possible. A force specification needs to be established so that testers know how hard they should press rearward on the CRF to position the device on the vehicle seat. Positioning the CRF consistently is important because the LATCH lower anchorages must be within 70 mm of point Z on the CRF. The harder the CRF is pressed against the seat back, the further rearward point Z will be. Specifying how hard to press the CRF against the seat back will ensure that the CRF is positioned correctly time after time.

However, we have decided to increase the rearward force specification to 100 N. The 5 N force level was specified in the March 1999 final rule to provide an objective means of positioning the CRF. On reconsideration, while a force specification is needed for objectivity, increasing the force level will result in a larger area provided to vehicle manufacturers for installing the LATCH lower anchorages, which facilitates the installation of the anchorages. We estimate that a 5th percentile adult female would be able to exert a 100 N force pushing back on a child restraint without problem. Accordingly, the change has been made to S9.2 of the standard.

The draft ISO specifications for LATCH lower anchorages specify that, with the CRF attached to the anchorages and resting on the seat cushion, the bottom surface of the CRF must have attitude angles within certain limits (with angles measured relative to the vehicle horizontal, longitudinal and transverse reference planes). Pitch must be 15° ± 10°, roll 0° ± 5°, and yaw 0° ± 10°. Porsche petitioned NHTSA to incorporate these pitch, roll and yaw requirements into the requirements of Standard No. 225. NHTSA agrees that the requirements are necessary to more objectively specify how the CRF is installed in the vehicle. Today's final rule incorporates the pitch, roll and yaw requirements into S9 of the standard. 5

The March 1999 final rule specified marking requirements for lower LATCH anchorage bars that applied to bars that could not be viewed from an angle of 30 degrees above a horizontal plane tangent to the seat cushion (S9.5). (The location of bars that were visible from that angle did not have to be marked.) Vehicles in which the bars are not visible from that angle must have a permanent mark on the vehicle seat back at each bar's location. The rule specified (S9.5(a)) that the permanent mark must be a circle that is not less than 13 mm ( 1/2 inch) in diameter, is in a color that contrasts with the seat material, and is located above each individual bar such that the center of the circle is not less than 50 mm and not more than 75 mm above the bar and is in the vertical longitudinal plane that passes through the center of the bar. The purposes of marking the location of the bars were to provide a visual reminder to consumers that the LATCH system is present and to help users locate and use the bars. 64 FR at 10802.

Section S9.5(b) specifies that the vehicle seat back need not be marked to identify the presence and location of the lower LATCH anchorage bars if each anchorage bar is visible when viewed in a vertical longitudinal plane passing through the center of the bar, along a line making an upward 30 degree angle with a horizontal plane. Porsche suggested that the anchorages should be visible at angles of 30 degrees or less. The agency is declining to make this change, as the anchorages would be less visible at smaller angles.

Honda suggested that NHTSA specify that the seat back be positioned in the manufacturer's nominal design riding position when determining whether the anchorage bars are visible. The petitioner explained that the seat backs on some of its vehicles tilt far forward to allow for increased luggage capacity when the seat is unoccupied. The petitioners stated that when the seat back is adjusted in that manner, a child restraint system cannot be installed in the seating position, so visibility of the LATCH bars is not critical. NHTSA agrees and has made this change.

The Alliance and Porsche believed that only one lower anchorage bar need be required to be visible or marked, not both bars. The agency has decided against adopting this suggestion. Both bars must be identified to the consumer because, for the foreseeable future, child restraints sold in this country will typically have components that attach to the bars independently of each other. Consumers will need to know where to attach each of the two components. Knowing where one bar is located will not necessarily enable consumers to determine precisely the location of the other bar.

Solid Or Open Circle. Mitsubishi and Porsche believed that the standard should allow manufacturers flexibility in selecting the shape of the mark, rather than specify a circle. The Alliance believed that manufacturers should be permitted to have a solid or open circle with the option of including a pictogram or wording in the circle. NHTSA has decided that a circle must be used, to standardize on the symbol used to identify the anchorages. Standardization will likely increase user recognition of the symbol. NHTSA has also decided to permit the option of using an open circle (uncolored area in the circle). The circle may include text or an easily recognizable symbol or pictogram. The symbol or pictogram must be clearly explained to the consumer in writing, such as in the vehicle owner's manual.

Contrasting Color. Porsche believed that requiring the circle to be in a contrasting color would be optically disturbing and displeasing to consumers. The Alliance stated that “a contrasting color requires a sewn on label or a painted application and these may be less durable than an embossed or woven marking which would show the marking in the color of the seat fabric but which would still be conspicuous.” The agency has decided that the color of the circle need not contrast with the color of its background in order to be noticed. Thus, we have removed the requirement. However, if we find that the circles need to be more conspicuous in future vehicles, we will consider re-establishing a contrasting color requirement in the standard.

The rule did not specify the manner in which the permanency of the mark must be achieved. However, the agency makes the following observations and conclusions on this matter. The “destroy or deface” test is suitable for situations in which a consumer is not inclined intentionally to remove a mark or label. However, the agency does not agree that a destroy-or-deface test is a good one for determining permanency with regard to the circles in question. Some consumers may not see value in having the marks on the vehicle seats. If only one side of a tag were sewn into a seam, the owner could snip it off and it would meet the “destroy or deface” test. Such a tag is not permitted, since it is foreseeable that an owner would remove it. A tag that is sewn on at least half of its border, so as to not invite snipping, would be acceptable to NHTSA. Some painted markings and adhesive applications might not be sufficient, even if they could meet a destroy-or-deface test. For instance, paint that easily flaked off would defeat the purpose of the requirement. In contrast, the agency anticipates that weaved, embossed, stamped, and engraved marks would be permanent.

Vertical Position Of The Circle. Mitsubishi believed that consumers would be better assisted in locating the anchorage bar if the 50 mm lower limit for location of the anchorage bar mark were eliminated. The Alliance believed that the vertical position of the marking should be less restrictive than what the rule required. “It should be visible at a 30 degree viewing angle and be located no more than 100 mm from the horizontal centerline of the anchorage bar in the vertical longitudinal plane.” Mitsubishi and the Alliance asked where the “seat back” begins for the purpose of marking the lower anchorages on highly contoured seats. Mitsubishi stated that the bottom cushion of some of its seats curves toward the vertical and supports a portion of an occupant's lower back before a separate seat back begins. Petitioner stated that if the agency considers a portion of a vehicle seat to be the seat back solely by reference to a physical separation between the bottom seat cushion and the seat back, the circle markings would be more than 75 mm above the anchorage bars, which is not permitted by S9.5(a)(3).

The agency is not eliminating the 50 mm lower limit for the location of the bars because without it, the mark might be too low to be seen. The agency is not increasing the 75 mm upper limit to 100 mm because it might be difficult for some consumers to align the child restraint attachments with the circles when the circles are 100 mm from the bars. The 75 mm limit also harmonizes with Transport Canada's requirements for the location of the markings, as further discussed below.

To make it easier to find where the circles should be placed, the agency is amending S9.5(a) to use reference planes developed by Transport Canada in Regulation 210.2, “Lower Universal Anchorage Systems for Restraint Systems and Booster Cushions “ (Standard 210.2). That standard requires the markings to be on the seat back between 50 and 75 mm above or on the seat cushion 100 ± 25 mm forward of the intersection of the vertical transverse and horizontal longitudinal planes intersecting at the horizontal centerline of each lower anchorage. This approach is not only clearer in where the circles should be, but also permits the markings to be located either on the seat back or the seat cushion, which allows flexibility to manufacturers such as Mitsubishi with atypical seat designs. The area 100 ± 25 mm forward of the intersection of the planes is specified to account for the lower anchorage bars being recessed in the padding of the seat back or recessed in the seat bight. This final rule incorporates a figure (Figure 22) into the standard that illustrates the intersection of the vertical transverse and horizontal longitudinal planes.

Lateral Position Of The Circle. The Alliance stated that a tolerance needs to be provided for centering the circle over the anchorage bar to account for production variation and seat cover configuration. Petitioner suggested that the centerline of the marking should be located ± 25 mm from the vertical centerline of the anchorage bar. We agree to provide a tolerance for centering the circle over the bar. However, the 25 mm tolerance that petitioner suggested is too large. If an anchorage is the minimum length (25 mm) and the centerline of the circle is 25 mm from the centerline of the bar, the centerline of the circle would not be over the bar. The tolerance is ± 12 mm from the vertical centerline of the bar. A tolerance of ± 12 mm ensures that, even with the shortest bars (those only 25 mm long), the centerline of the circle is over a part of the anchorage bar to which a child restraint would connect.

Several petitioners asked about anchorage bar covers. Porsche asked whether easily removable caps or covers for otherwise visible LATCH lower anchorages may be provided. Honda stated that it is considering using a guide to make it easier to attach a child restraint. “With this guide, we would like to use a cover to prevent contaminating the anchorage by foreign substances falling or being inserted into the guide.” Honda suggested adding a provision to S9.5 that would specify that, if the vehicle has a guide and cover for a bar: (1) the vehicle shall comply with S9.5(b) when the cover is removed; and (2) the cover shall be marked permanently with a circle according to S9.5(a) of the standard. Our answer to these petitioners is that caps and covers may be provided on these vehicles that meet S9.5(b), if the cap or cover is permanently marked. Marking the cap or cover alerts the consumer to the presence and location of the LATCH bars. The meaning of the words, symbols or pictograms must be explained to the consumer in the owner's manual. The standard has been amended to make these requirements clear.

Volkswagen (VW) asked about use of an anchorage locator such as a guide device installed onto the anchorage at the seat bight. VW suggested that a guide device “would be clearly visible even if the bar itself is not visible,” and that visible guidance devices should therefore meet S9.5's marking and conspicuity requirements. We have decided that the seat back need not be marked if the visible guide device is permanently attached to each anchorage bar and is not removable. The standard has been amended to allow this. If the device were removable, it could be lost or misplaced. Without the device, the bar will be hidden from the consumer, and as such, less likely to be used.

Section S6.2.1.2(b)(1) of Standard No. 225 specifies that any flexible or deployable tether strap routing device must be not less than 65 mm behind the torso line for that seating position, measured horizontally and in a vertical longitudinal plane. This provision is intended to keep the routing device far enough back to remove slack from the tether strap, particularly a tether strap that is mounted high on the back of a child restraint.

In its petition for reconsideration, Ford noted that S6.2.1.2 does not specify the conditions under which this dimension is to be measured. Ford believed that the provision is intended to measure the position of the routing device in actual use, while a tether strap is routed through it and tensioned.

Ford suggested that a procedure be developed using the SFAD 2. 6 Such a procedure would install the SFAD 2 on the anchor bars (with the length of the anchor attaching bars properly adjusted) and the front part of the SFAD 2 base touching the seat cushion. A 40 mm wide nylon tether strap would be routed through the tether routing device and hooked to the appropriate tether anchor, following the vehicle owner's manual instructions. The forwardmost contact point between the strap and the routing device should be 65 mm or more behind the torso line when the tether strap is clamped flat against the top surface of the SFAD with a tension of 55 to 65 N in the strap. For seating positions without lower anchorages, the SFAD 2 must be held with its central lateral plane in the central vertical longitudinal plane of the designated seating position. For this measurement, the adjustable anchor attaching bars of SFAD 2 would be replaced by spacers that end flush with the back surface of the SFAD base.

The final rule that is the subject of this correction revises, consistent with the actions taken by the Gulf of Mexico Fishery Management Council (Council), one of the eligibility criteria for obtaining a charter vessel/headboat permit under the moratorium; reopens the application process for obtaining Gulf charter vessel/headboat moratorium permits and extends the applicable deadlines; extends the expiration dates of valid or renewable open access permits for these fisheries; clarifies, as requested by the Council, a constraint on issuance of historical captain permits under the moratorium; and extends the expiration date of the moratorium to account for the delay in implementation.

This correction adds regulatory text that was inadvertently removed in the May 15, 2003 (68 FR 26230) final rule. The proposed rule published on March 12, 2003 (68 FR 11794) made clear that paragraphs (1) through (8) of 50 CFR 622.4(r) were proposed to be revised, and that paragraphs (9) through (12) of that section would be retained without change. The final rule mistakenly directed the Office of the Federal Register to remove paragraphs (9) through (12) of § 622.4(r). No proposal was ever made to remove paragraphs (9) through (12). Thus, the public was never provided an opportunity to comment on their removal. Further, NMFS did not provide any explanation for the removal of those paragraphs in the “Changes from the Proposed Rule” section of the preamble to the May 15 final rule. Finally, § 622.4(r)(1) of the May 15 final rule clearly references paragraphs (r)(9) and (r)(10) of that section--two of the paragraphs that the final rule inadvertently removed.

This rule is a correction of an error in the final rule that made a change to the regulations for which the agency had not provided prior notice and an opportunity for comment. Moreover, this rule merely reinserts, without change, regulatory text that previously existed and was never intended to be removed. Finally, this rule will have little, if any, effect on the regulated community in that this correction is being made within days of the error becoming effective. As such, the Assistant Administrator (AA), NOAA, finds good cause, pursuant to authority at 5 U.S.C. 553(b)(B), to waive the requirement to provide prior notice and an opportunity for public comment as such procedures are unnecessary. Further, if the effective date of this rule to correct this error were to be delayed for 30 days the possibility that this error might have an effect on the regulated community increases. Thus, the AA finds good cause, pursuant to authority at 5 U.S.C. 553(d)(3) to waive the requirement for a 30-day delay in effective date for this rule.

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

A final rule published on December 18, 2002 (67 FR 77434), established a new HMS Angling category vessel permit. This new permit category authorizes recreational anglers to fish for, possess, and retain HMS. Further, the final rule specified that the Atlantic Tunas General category permit, a commercial handgear category, would not authorize persons aboard a vessel to fish for, possess, or retain billfish, swordfish, or sharks in the recreational fisheries. The final rule also re-specified that permit category changes could not be made after a permit is issued for a fishing year. A temporary rule that was published on June 12, 2003 (68 FR 35185), provided a limited time during which Atlantic Tunas General category permit holders could make a one-time change to the new Atlantic HMS Angling category permit. That temporary rule is effective through July 9, 2003.

Since issuance of the June 12, 2003, temporary rule, NMFS has received numerous comments on a daily basis that other permits have been issued in incorrect categories due to confusion about the new HMS Angling category, human error in selecting the permit due to unfamiliarity with the automated permitting system, and possible administrative error. Persons issued permits in the Atlantic Tunas General and Harpoon and Atlantic HMS Angling and Charter/Headboat categories have also contacted NMFS to seek relief for permits issued in incorrect categories. Due to the unique circumstances of the new HMS Angling permit requirements, and the numerous errors in permit category issuance, this temporary rule provides a 10-day period for all Atlantic Tunas General, Harpoon, and Trap categories and Atlantic HMS Angling and Charter/Headboat category permit holders to correct permit category errors. Atlantic Tunas Longline and Purse Seine category permits are limited access permits and are not eligible for changes under this temporary rule.

For persons issued 2003 Atlantic Tunas and Atlantic HMS category permits after the effective date of this temporary rule, corrections to a permit category must be made within 10 days of the date of issuance of the permit (e.g., if a permit is issued on July 1, then corrections to the permit category must be made by July 10). For persons issued 2003 Atlantic Tunas and Atlantic HMS category permits prior to or on the effective date of this temporary rule (excluding Atlantic Tunas Longline and Purse Seine category permits), corrections to permit category errors must be made by July 3, 2003. It is incumbent upon permit holders to carefully review their existing permit category information, as, no further corrections to a permit category may be made after the above-mentioned 10-day periods.

Pending receipt of a new permit, permit holders are subject to the regulations applicable to their currently held permits.

NMFS maintains an automated permitting system for the issuance of Atlantic Tunas vessel permits and HMS Angling vessel permits. To make a permit category correction under this temporary rule, dial (888) 872-8862 and press “0” from the main menu to reach a Customer Service representative.

This temporary rule is published under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act.

The Assistant Administrator for Fisheries, NOAA (AA), has determined that this rule is consistent with the Magnuson-Stevens Act and other applicable laws.

The Assistant Administrator for Fisheries, NOAA (AA), finds for good cause that providing prior notice and public comment for this temporary rule, as required under 5 U.S.C. 553(b)(B), is impracticable and contrary to the public interest. The Atlantic HMS Fishery opened on June 1, 2003. Over the past 2 weeks, fishermen have been notifying NMFS that, as a result of confusion regarding the new HMS recreational Angling permit requirement and errors in selecting and/or issuing their permits, they had obtained Atlantic Tunas and Atlantic HMS permits in incorrect categories. Current regulations do not provide a mechanism for correcting permit category errors. Delay in issuing this temporary rule would prevent fishermen who intended to fish under the new Angling category or under different categories from being allowed to engage in their intended fishing activities for the next several months.

Because this temporary rule relieves a restriction by allowing an otherwise prohibited permit correction, it is not subject to a 30-day delay in effective date pursuant to 5 U.S.C. 553(d)(1).

NMFS will rapidly communicate this action to fishery participants through its FAX network and HMS Information Line.

Because prior notice and opportunity for public comment are not required for this temporary rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , are inapplicable.

This action is not significant within the meaning of Executive Order 12866.

A proposed emergency rule for this action, requesting public comment, was published on April 24, 2003 (68 FR 20096), and subsequently corrected on May 9, 2003 (68 FR 24914), that would continue measures implemented on August 1, 2002, consistent with the Settlement Agreement, which was ordered to be implemented by the Court in a Remedial Order (Order) issued on May 23, 2002, as a result of Conservation Law Foundation, et al. v. Evans, et al . In addition to containing the interim measures implemented on August 1, 2002, consistent with the Settlement Agreement, which are being implemented through this final emergency rule, the proposed emergency rule contained a program that would allow limited access NE multispecies vessels to lease DAS. Due to the newness and potential controversiality of the DAS Leasing Program and its implications, NMFS extended the comment period through June 10, 2003, on the DAS leasing aspect of the proposed emergency rule only (68 FR 28188; May 23, 2003). This final emergency rule implements many of the same measures implemented through the August 1, 2002, interim final rule with some modifications in response to public comment, and does not implement the DAS Leasing Program. If the DAS Leasing Program is approved, a separate final rule will be published to implement that program.

Pursuant to the Court's Order, NMFS published an interim final rule (67 FR 50292) on August 1, 2002, which implemented management measures consistent with the Settlement Agreement that intended to reduce overfishing on species managed under the FMP. Measures implemented on August 1, 2002, included: A freeze on DAS based on the highest annual level used from fishing years 1996-2000, reduced by 20 percent; a freeze on the issuance of new open access Hand-gear permits; increased gear restrictions for certain gear types, including gillnets, hook-gear and trawl nets; modifications and additions to the closure areas; limits on yellowtail flounder catch; a reduction in the haddock trip limit for open access Handgear vessels; a haddock trip limit for charter/party vessels fishing in the Gulf of Maine (GOM); and an increase in minimum haddock size for private recreational and party/charter vessels.

The Order specified that the management measures implemented by the August 1, 2002, interim rule must remain in effect until implementation of Amendment 13 to the FMP. Amendment 13 was initially scheduled to be in effect no later than August 22, 2003. However, due to the need for additional time to address unanticipated concerns related to NMFS' Northeast Fisheries Science Center's trawl survey and the new biological reference points developed for the NE multispecies stocks, NMFS and two of the plaintiffs filed a motion with the Court requesting an extension of the August 22, 2003, implementation schedule until May 1, 2004. On December 4, 2002, the Court granted an extension of the Court-ordered timeline for Amendment 13 implementation until May 1, 2004.

On January 22, 2003, NMFS published a notice in the Federal Register informing the public that NMFS was continuing the interim regulations for a second 180-day period (ending July 27, 2003). Under section 305(c)(3)(B) of the Magnuson-Stevens Act, interim regulations implemented under section 305(c) are limited to two, consecutive 180-day periods. The Court subsequently granted an extension of the original schedule for implementation of Amendment 13 to May 1, 2004. Thus, in order to comply with the Court Order to maintain the short-term measures until implementation of Amendment 13, the Secretary is implementing this final emergency rule under 305(c) of the Magnuson-Stevens Act.

This final emergency rule implements many of the same measures contained in the interim final rule published on August 1, 2002, as described below, with slight modifications to measures pertaining to haddock size and possession limits for recreational, party/charter, and open access Handgear vessels. As acknowledged in the Settlement Agreement, the Secretary maintains the discretion to modify measures contained therein. NMFS determined that slight modifications to certain haddock specific measures are justified due to the unique circumstances of the haddock fishery, including, the fact that overfishing is not occurring in the haddock fishery, the disproportionate haddock restrictions among different sectors of the fishery, and the potential for lowering discarded bycatch of haddock. Fishing mortality on haddock in the 2002 fishing year continued at a level well below the level necessary to ensure rebuilding of the stock within the timeframes specified in the Magnuson-Stevens Act. In response to this low level of fishing mortality, NMFS has relieved certain haddock trip limits during the 2002 fishing year (67 FR 45401; July 9, 2002), on commercial limited access multispecies vessels as allowed for in the multispecies regulations. Public comments for this proposed action pointed out that other fishing sectors fishing for haddock did not receive the same consideration with respect to haddock restrictions. This emergency rule significantly reduces these disproportionate haddock restrictions without jeopardizing the objective of preventing overfishing on haddock. Even though NMFS received public comments requesting modifications to other measures, NMFS determined that the changes to the haddock measures were the only appropriate ones because they apply to haddock only and the analysis in the EA demonstrates that these measures will not have a detrimental effect on haddock or any other multispecies stock. Moreover, these changes were designed to limit the changes to a return to haddock restrictions in effect before implementation of the August 1, 2002, interim regulations. These unique circumstances do not exist for implementing any other suggested modifications affecting other stocks of multispecies. The measures being implemented by this final emergency rule are described below.

This action continues the RMAs established by the August 1, 2002, interim rule for the Gulf of Maine (GOM), Georges Bank (GB), Southern New England (SNE) and Mid-Atlantic (MA) RMAs. The GOM RMA is the area north of the GOM cod exemption line, which is currently used to define the areas where the GOM cod and GB cod trip limits apply, and the GB RMA lies south of the GOM cod exemption line, and continues south to the U.S. Exclusive Economic Zone (EEZ) for the areas east of 69 00' W. long. The SNE RMA is defined as the area west of the GB RMA and east of a line beginning at the intersection of 74 00' W. long. and the south-facing shoreline of Long Island, NY, and running southward along the 74 00' W. long. line. The MA RMA is defined as the area west of the SNE RMA. Specific management measures apply, depending on the area fished. For the purposes of the exempted fishery programs already implemented under the FMP, the GOM/GB and SNE RMAs, as defined under Amendment 7 to the FMP, remain in effect and are referred to as “Exemption Areas.”

This action continues the DAS baseline that was established for each vessel by the August 1, 2002, interim rule, based on the permit history of that vessel. This baseline is as follows: The used DAS baseline for a limited access permit is calculated based on the highest number of DAS that a vessel(s) fished during any single fishing year among the 1996 through 2000 fishing years, which includes the period May 1, 1996, through April 30, 2001, not to exceed the vessel's current DAS allocation in any given year. For any vessel where the calculation of the baseline DAS results in a net amount of DAS less than 10, that vessel is allocated a used DAS baseline of 10 DAS. Because vessel owners were already provided an opportunity to correct any errors regarding their current DAS baselines (under the August 1, 2002, interim rule), and the DAS baseline will incorporate any corrections made, no additional opportunity to correct used DAS baseline allocations is provided under this action.

These emergency measures will result in DAS allocations for the 2003 fishing year consistent with the 20-percent DAS reductions that were implemented by the August 1, 2002, interim rule (i.e., the current DAS allocations). That is, for the 2003 fishing year, each vessel's DAS allocation is equal to that vessel's used DAS baseline, minus 20 percent of that vessel's used DAS baseline. Effective July 28, 2003, each vessel's DAS remaining for the 2003 fishing year is equal to that vessel's used DAS baseline, minus 20 percent of that vessel's used DAS baseline, minus any DAS that the vessel fished during the period May 1 through July 27, 2003.

Under this action, vessels that have never been issued an open access NE multispecies Hand-gear permit are prohibited from obtaining a Hand-gear permit for the duration of this action.

The term “frontloading the DAS clock” refers to the practice of vessel owners starting their DAS clock in advance of the actual departure of the vessel. This final emergency rule continues the prohibition on frontloading. Under this prohibition, a vessel owner or authorized representative is required to notify NMFS no earlier than 1 hour prior to the vessel leaving port to fish under the NE multispecies DAS program. A DAS will begin once the call has been received and a confirmation number is given. This measure applies to all management areas.

This final emergency rule continues the closure areas established under the August 1, 2002, interim rule for the Western Gulf of Maine (WGOM) Area Closure, the Rolling Closure Areas, the Cashes Ledge Closure Area, and the GB Seasonal Closure Area. Exemptions to the GOM rolling closure areas, WGOM, Cashes Ledge Closure Area, and GB Seasonal Closure Area remain the same as established under the August 1, 2002, interim rule (and corrected in 68 FR 14347, March 25, 2003). Charts of the closure areas are available from the Regional Administrator upon request (see ADDRESSES ).

Under this final emergency rule, vessels fishing with otter trawl gear, and fishing any part of a NE multispecies DAS trip in the GOM, GB, or MA RMAs, are required to fish with a minimum 6.5-inch (16.5-cm) diamond or square mesh codend. This requirement applies only to the codend of the net; the minimum mesh-size for the remaining portion of the net is 6.0-inch (15.24-cm) diamond mesh or 6.5-inch (16.5-cm) square mesh, or any combination thereof. The codend is defined as follows: 25 meshes for diamond mesh, or 50 bars in the case of square mesh, from the terminus of the net for vessels 45 ft (13.7 m) in length and less; and 50 meshes for diamond mesh, or 100 bars in the case of square mesh, from the terminus of the net for vessels greater than 45 ft (13.7 m) in length.

Under this action, limited access NE multispecies vessels that obtain an annual designation as a Trip gillnet vessel, when fishing in the GOM RMA during any part of a trip under a multispecies DAS, are required to fish with nets with a minimum of 6.5-inch (16.5-cm) mesh and are restricted to 150 nets, with one tag fixed to each net. Multispecies vessels that obtain an annual designation as a Day gillnet vessel are allowed to fish up to 100 nets, provided that, when fishing any part of a trip under a NE multispecies DAS in the GOM RMA, the vessel complies with the following specifications: When fishing with flatfish nets, vessels can fish no more than 100 nets, with a minimum mesh size of 7 inches (17.8 cm), with one tag affixed to each net; vessels may only fish roundfish nets from July through February, and are allowed to fish no more than 50 nets, with a minimum mesh size of 6.5 inches (16.5 cm), with two tags affixed to each net. Any tag not affixed to a net must be retained on the vessel and be immediately available for inspection.

Under this final emergency rule, limited access NE multispecies vessels that fish under a NE multispecies DAS with gillnet gear in the GB RMA at any time throughout the fishing year are required to declare into the Day or Trip gillnet category. Vessels fishing under either the Day or Trip gillnet category in the GB RMA during any part of a trip under a NE multispecies DAS are required to fish with nets with a minimum of 6.5-inch (16.5-cm) mesh and are restricted from fishing more than 50 nets, with two tags fixed to each net.

Under this final emergency rule, when fishing any part of a NE multispecies DAS in the SNE RMA, otter trawl vessels are required to fish with a minimum 7.0-inch (17.8-cm) diamond or 6.5-inch (16.5-cm) square mesh codend. This requirement applies only to the codend of the net, which is defined as described above under the GOM and GB trawl mesh restrictions.

Under this final emergency rule, limited access NE multispecies vessels that fish under a NE multispecies DAS with gillnet gear in the SNE RMA at any time throughout the fishing year are required to declare into the Day or Trip gillnet category. Vessels fishing under either the Day or Trip gillnet category in the SNE RMA during any part of a trip under a NE multispecies DAS are required to fish with nets with a minimum of 6.5-inch (16.5-cm) mesh, and are restricted from fishing more than 75 nets, with two tags fixed to each net.

Under this final emergency rule, limited access NE multispecies vessels that fish under a NE multispecies DAS with gillnet gear in the MA RMA are allowed to fish the same type and number of nets as allowed prior to the implementation of the August 1, 2002, interim rule. That is, vessels are allowed to fish up to 160 nets. Vessels fishing under the monkfish DAS program are limited to 150 nets.

Under this final emergency rule, any monkfish vessel that has a monkfish limited access Category C or D permit (i.e., a vessel that possesses both a monkfish and NE multispecies limited access permit) and that is fishing under a monkfish DAS, in all areas, is restricted from fishing more than 150 nets, provided the vessel fishes with nets with a minimum mesh size of 10 inches (25.4 cm). Vessels are required to affix one tag to each net. Category A and B monkfish vessels remain unaffected by these measures.

Under this final emergency rule, vessels that have a valid limited access NE multispecies Large Mesh Individual DAS category or a Large Mesh Fleet DAS category permit, when fishing in the GOM, GB, and SNE RMAs, with trawl nets or sink gillnets, are required to fish with nets with a minimum mesh size of 8.5-inch (21.6-cm) diamond or square mesh throughout the entire net. Vessels fishing with trawl nets or sink gillnets when fishing in the MA RMA are required to fish with nets with a minimum mesh size of 7.5-inch (19.0-cm) diamond or 8.0-inch (20.3-cm) square mesh throughout the entire net.

Under this final emergency rule, vessels that have a valid NE multispecies limited access permit are prohibited from using de-hookers (crucifiers) with less than 6-inch (15.2-cm) spacing between the fairlead rollers. In addition, limited access Small-vessel permitted vessels and limited access permitted vessels that fish any part of a NE multispecies DAS trip in the GOM, GB or SNE RMAs are required to use 12/0 or larger circle hooks on longline gear, and are subject to a maximum number of rigged hooks on board the vessel. Specifically, vessels fishing in the GOM or SNE RMAs are prohibited from possessing more than 2,000 rigged hooks, and vessels fishing in the GB RMA are prohibited from possessing more than 3,600 rigged hooks.

Table 1 summarizes the gear restriction measures for each gear sector when fishing in the various RMAs.