This final rule is issued under Marketing Agreement No. 97 and Order No. 948, both as amended (7 CFR part 948), regulating the handling of Irish potatoes grown in Colorado, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This proposal will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This final rule increases from 12 to 14 the number of members on the Committee by adding a second producer representative for Chaffee County and Saguache County, and by creating a position for a producer representative for certified seed potato producers from Area No. 2. Consistent with § 948.52, each new member position has an alternate with the same qualifications as the member. This rule does not change the number of handler representatives on the Committee, which remains at five. This action was unanimously recommended by the Committee at a meeting on March 20, 2003.

Section 948.4 of the order establishes three subdivisions, or areas, within the State of Colorado, and § 948.50 provides authority for the establishment of a committee as an administrative agency for each area. Section 948.53 provides authority for the reestablishment of these areas or subdivisions of these areas, as well as the redistribution of representation within area subdivisions or among marketing organizations within the respective areas. Finally, § 948.6 provides a definition for seed potatoes.

Section 948.150 of the order's administrative rules and regulations prescribes the current membership on each area committee as reestablished pursuant to § 948.53. For Area No. 2, the Committee consists of seven producer members and five handler members with two producers from Rio Grande County, one producer from Chaffee County or Saguache County, one producer from Conejos County, two producers from Alamosa County, and one producer from all remaining counties in Area No. 2. In addition, two handlers represent bulk handlers and three handlers represent handlers other than bulk handlers.

As indicated above, the order provides that one producer member on the Committee represents producers in both Chaffee County and Saguache County. Based on a Committee recommendation, on March 31, 1995 (62 FR 16565), the USDA reestablished Area No. 2 to include Chaffee County, which previously had been part of the Area No. 3 production area. This reestablishment was initiated largely due to Chaffee County's proximity to Area No. 2 and a request from a Chaffee County producer/handler. That action also reestablished Committee membership by combining Chaffee County and Saguache County as one district for the purpose of nominating a producer member to the Committee.

Although Chaffee County potato production has remained relatively static, potato production in Saguache County has in recent years increased significantly due to an increase in potato acreage. According to Committee records, Saguache County farmers harvested about 5,310,000 hundredweight of potatoes from nearly 17,000 acres during the 2001-2002 season. This is nearly double the 1985-1986 production of the 2,930,000 hundredweight of potatoes that were harvested from 8,900 acres in Saguache County. It is also noteworthy that Saguache County had about 16 percent of the total production in Area No. 2 during the 1985-1986 season compared to about 25 percent of the total during the 2001-2002 season. With two seats on the Committee, producers from Chaffee and Saguache Counties comprise about 22 percent of the producer members on the Committee.

Arable land in Chaffee County is generally limited to a relatively small production area around the city of Salida, and the Committee continues to believe that Chaffee and Saguache Counties should remain combined as a subdivision, or nominating district, in Area No. 2. The two members from this district, as well as their respective alternates, will be nominated for membership on the Committee from all eligible producers from either or both of these two counties.

According to the Committee, there are currently 38 producers with certified seed potato production on 14,760 Area No. 2 acres. Of the 6,273,000 hundredweight of certified seed potatoes harvested in 2001-2002, Committee records indicate that 977,866 hundredweight were marketed out-of-area, and 343,223 hundredweight were planted in the San Luis Valley. Most of the balance of the total seed production was replanted into the certified seed program for multigenerational seed development. Certified seed potato shipments are currently exempt from the grade, size, maturity, and inspection requirements of § 948.386, but are subject to the order's assessment rate as established under § 948.216.

The Committee, in conjunction with the Colorado Area No. 2 potato industry, recently held a strategic planning session and identified several key issues. One of the important issues looked at by the Committee was its membership as it relates to Area No. 2 potato industry representation. Consensus among participants indicated that there would be a mutual benefit to the Committee and the industry with certified potato seed representation on the Committee. Seed potatoes are typically produced in areas separate from the major commercial fresh and processed potato production areas. This isolation is necessary to maintain the strict State of Colorado certified seed tolerances established for plant diseases. The Committee believes that the infusion of fresh ideas from this facet of the industry will provide for a new perspective on the Committee, as well as providing better service to the entire Colorado Area No. 2 potato industry.

In addition, based in part on the increase in production in Saguache County and on the significance of certified seed potato production in Area No. 2, the Committee received requests from the industry that producer representation on the Committee be increased. Finally, the Committee has recently formed several subcommittees for the purpose of providing better service to the Area No. 2 potato industry. Due to an inadequate candidate pool, the Committee has experienced problems in identifying enough committee members willing and able to serve on these subcommittees. Taking all of this into consideration, the Committee determined that the addition of two producer members and their respective alternates will not only provide better representation for Area No. 2 producers, but will also provide an increased pool of expertise on the Committee and its subcommittees.

Thus, the reestablished Committee consists of nine producer members and five handler members with two producers from Rio Grande County, two producers from Chaffee County or Saguache County, one producer from Conejos County, two producers from Alamosa County, one producer from all remaining counties in Area No. 2, and one producer representing certified seed producers in Area No. 2. In addition, two handlers represent bulk handlers and three handlers represent handlers other than bulk handlers.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 90 handlers of Colorado Area No. 2 potatoes subject to regulation under the order and approximately 230 producers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. Area No. 2 is also referred to as the San Luis Valley area by the industry.

During the 2001-2002 marketing year, 14,805,719 hundredweight of Colorado Area No. 2 potatoes were inspected under the order and sold in the fresh market. Based on an estimated average f.o.b. price of $11.75 per hundredweight, the Committee estimates that 79, or about 88 percent of the Area No. 2 handlers, had annual receipts of less than $5,000,000.

In addition, based on information provided by the National Agricultural Statistics Service, the average producer price for Colorado fall potatoes for the 2001-2002 marketing year was $9.65 per hundredweight. The average annual producer revenue for the 230 Colorado Area No. 2 potato producers is therefore calculated to be approximately $621,196. In view of the foregoing, the majority of the Colorado Area No. 2 potato producers and handlers may be classified as small entities.

This rule increases the number of members on the Committee from 12 members to 14 members. Specifically, this rule increases from seven to nine the number of producers on the Committee by adding a second producer representative from Chaffee County and Saguache County, and by creating a position for a representative for certified seed potato producers from all the counties in Area No. 2. This rule does not change the number of handler representatives on the Committee, which remains at five. Each position on the Committee continues to have an alternate with the same qualifications as the member.

Potato production in Saguache County has increased significantly in recent years. Increased potato acreage has been the primary reason for the production increase. Colorado's Saguache County and Chaffee County comprise a nominating district within Area No. 2 and have one member and alternate member serving on the Committee. The Committee believes that an additional member from this area will benefit both the Committee and the industry. With certified potato seed production representing a significantly important segment of the Area No. 2 potato crop, the Committee also believes that the addition of a certified seed producer position will add a fresh perspective to its membership and will provide better representation for the San Luis Valley potato industry. Authority for this action is provided in § 948.53 of the order.

This rule will cause a small increase in the Committee's cost of administering the order. For example, overall costs associated with Committee members' travel to attend meetings will increase due to the additional members requiring compensation. The increased cost, however, should be offset by the non-economic benefits derived by providing a greater number of producers the chance to participate as members of the Committee, as well as the service the increased Committee expertise and diversity will provide to the San Luis Valley potato industry. Regardless, the costs associated with this rule are not expected to be disproportionately greater or less for small producers and handlers than for larger entities.

The Committee discussed alternatives to this change. In considering its goals of providing additional representation in response to the greater production in Saguache County and the significant certified seed potato production throughout the San Luis Valley, the Committee looked at various alternatives to the current method of representation. For example, the Committee considered combining the counties in Area No. 2 into fewer subdivisions, or districts, in order to keep the Committee the same size while providing for greater representation to certain districts. After considerable discussion, however, the Committee determined that the only equitable method of handling the representation problem was to add additional members and leave the current subdivisions unchanged.

This final rule increases the number of member and alternate member positions on the Committee. Since the two-year Committee terms are arranged so that approximately one-half terminate each year, this action will increase by four the number of background statements requiring completion in a two-year period. It is estimated that the time needed to complete the forms by producers who are nominated to serve in the two additional member and two additional alternate member positions will be less than two minutes per response, or a total of 8 minutes, which will not substantially impact the total burden hours. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), these additional information collection requirements have been previously approved by the Office of Management and Budget (OMB) under OMB Control No. 0581-0178.

As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule.

The Committee's meeting was widely publicized throughout the San Luis Valley and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the March 20, 2003, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

A proposed rule concerning this action was published in the Federal Register on May 30, 2003 (68 FR 32432). Copies of the rule were mailed or sent via facsimile to all Committee members. Finally, the rule was made available through the Internet by the Office of the Federal Register and USDA. A 15-day comment period ending June 16, 2003, was provided to allow interested persons to respond to the proposal. No comments were received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant matter presented, including information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553) because this rule should be in place promptly so that the Committee can nominate members and alternate members for the two new producer positions as soon as possible. Further, handlers and producers are aware of this rule, which was recommended at a public meeting. Also, a 15-day comment period was provided for in the proposed rule and no comments were received.

These regulations reflect amendments to the Act which affect the payment of Social Security benefits under title II of the Act and Supplemental Security Income (SSI) benefits based on disability or blindness under title XVI of the Act, as well as payments to State VR agencies and alternate participants under the VR reimbursement programs under titles II and XVI of the Act.

In general, sections 222(a) and 1615(a) of the Act require us to refer Social Security disability beneficiaries, as well as disabled or blind SSI beneficiaries ages 16-64, to the State VR agency ( i.e. , a State agency operating under a State plan for VR services approved under title I of the Rehabilitation Act of 1973, as amended) for necessary VR services. Sections 222(d) and 1615(d) and (e) of the Act authorize us to reimburse a State VR agency for the reasonable and necessary costs of VR services furnished beneficiaries in certain categories of cases. Based on authority provided under sections 222(d)(2), 1615 and 1633 of the Act, our regulations on the VR reimbursement programs provide that if a State VR agency is unwilling to participate with respect to a beneficiary whom we referred to that agency (or if the State does not have an approved State plan for VR services), we may refer the beneficiary to an alternate participant for appropriate VR services, and may pay the alternate participant for the costs of services under the same conditions that would apply to a State VR agency.

Prior to January 1, 2001, sections 222(b) and 1615(c) of the Act required that certain sanctions be imposed against benefits ( i.e. , deductions against Social Security benefits or a suspension of SSI benefits) if a beneficiary refused VR services without good cause. Section 222(b) of the Act required us to make deductions from the Social Security benefits of a disability beneficiary (as well as deductions from the benefits of family members in certain circumstances) for any month in which such beneficiary refuses without good cause to accept rehabilitation services available to him or her from a State VR agency. In general, section 1615(c) of the Act provided that an individual shall not be eligible for SSI benefits if the individual refuses without good cause to accept VR services for which he or she is referred under section 1615(a) of the Act. Sections 222(b) and 1615(c) of the Act were repealed, effective January 1, 2001, by amendments to the Act made by the Ticket to Work and Work Incentives Improvement Act of 1999.

On December 17, 1999, Public Law 106-170, the Ticket to Work and Work Incentives Improvement Act of 1999, became law. Section 101(a) of Public Law 106-170 added section 1148 of the Act to establish the Ticket to Work and Self-Sufficiency Program (Ticket to Work program). The purpose of the Ticket to Work program is to expand the universe of service providers available to beneficiaries with disabilities who are seeking employment services, VR services, and other support services to assist them in obtaining, regaining, and maintaining self-supporting employment.

Under the Ticket to Work program, the Commissioner of Social Security may issue a ticket to Social Security disability beneficiaries and disabled or blind SSI beneficiaries for participation in the program. A beneficiary's participation in the program is voluntary. Each beneficiary has the option of using his or her ticket to obtain services from a provider known as an employment network or from a State VR agency. The beneficiary will choose the employment network or State VR agency, and the employment network or State VR agency will provide services. Employment networks will also be able to choose whom they serve. Our regulations implementing the Ticket to Work program are contained in 20 CFR part 411.

Section 101(b) of Public Law 106-170 made certain conforming amendments to the provisions of sections 222 and 1615 of the Act. Sections 101(b)(1)(C) and (b)(2)(B) of this law eliminated the sanctions for refusal of VR services by repealing sections 222(b) and 1615(c) of the Act, respectively. The repeal of these sections of the Act was effective January 1, 2001.

Section 101(b)(1)(B) of Public Law 106-170 eliminated the requirement for referral of Social Security disability beneficiaries to State VR agencies by repealing section 222(a) of the Act. Section 101(b)(2)(A) of this law amended section 1615(a) of the Act to eliminate the similar requirement that disabled or blind SSI beneficiaries ages 16-64 be referred to State VR agencies. These amendments to the Act take effect in a State when the Ticket to Work program is implemented in that State.

We will publish at a later date in the Federal Register rules to reflect the amendments eliminating the requirements for the referral of beneficiaries to State VR agencies in those States in which the Ticket to Work program is implemented, as provided in sections 101(b), (c) and (d) of Public Law 106-170. Additionally, the use of alternate participants under the title II and title XVI VR reimbursement programs will be phased out in the States as the Ticket to Work program is implemented, as authorized under section 101(d)(5) of Public Law 106-170. Under section 1148(d)(4)(B) of the Act and our regulations at 20 CFR part 411, subpart J, alternate participants in the VR reimbursement programs may qualify to serve as employment networks under the Ticket to Work program when that program is implemented in their State.

In these final rules, we are amending our regulations to remove those rules and related provisions which are obsolete as a result of the repeal of sections 222(b) and 1615(c) of the Act. We are removing the provisions of our regulations which provide for the imposition of benefit sanctions for a beneficiary's refusal of VR services without good cause.

In addition, we are amending our regulations on the VR reimbursement programs to remove the provisions which provide for payment to a State VR agency or alternate participant for services provided a beneficiary in a case where benefit sanctions are imposed because the beneficiary, without good cause, refused to continue to accept VR services or failed to cooperate in such a manner as to preclude his or her successful rehabilitation. As a result of the repeal of sections 222(b) and 1615(c) of the Act, the benefit sanctions no longer apply, and we have ceased making determinations as to whether a beneficiary had good cause for refusing to continue or cooperate in a VR program, effective January 1, 2001. Consequently, we are removing the rules providing for payments to State VR agencies or alternate participants under the VR reimbursement programs in cases where a beneficiary refuses to continue or cooperate in a VR program without good cause and benefit sanctions are imposed, since such cases can no longer occur after December 2000.

These final rules only remove those provisions of our regulations which are obsolete as a result of the repeal of sections 222(b) and 1615(c) of the Act. Some of the sections of our regulations affected by these final rules contain other provisions which require revision because of other amendments to the Act. For example, §§ 404.402(a), 416.1701 and 416.2040(b) contain provisions relating to benefit sanctions for refusal of VR services as well as provisions relating to the suspension of benefit payments for noncompliance with treatment for drug addiction or alcoholism. These latter provisions no longer apply as a result of amendments to the Act made by section 105 of Public Law 104-121, the Contract with America Advancement Act of 1996. While we are removing provisions relating to benefit sanctions for refusal of VR services, we are not, at this time, making other changes to conform our regulations to other amendments to the Act. We plan to publish in the Federal Register at a later date proposed rules to take account of the amendments to the Act made by section 105 of Public Law 104-121, relating to drug addiction and alcoholism, and will address the need for changes to §§ 404.402(a), 416.1701 and 416.2040(b) resulting from those amendments as a part of that regulatory initiative.

Several provisions of the regulations which we are revising in order to remove references to a deduction from Social Security benefits on account of a beneficiary's refusal of VR services, also contain certain outdated, gender-specific references to a woman's failure to have a child in her care as another event causing a deduction to be made from Social Security benefits. In these final rules, we are making changes to update the latter provisions to eliminate the gender-specific wording that refers only to a beneficiary who is a woman. We are making these changes to conform to § 404.421 of our regulations which explains the conditions under which a deduction will be made from a person's wife's, husband's, mother's or father's benefits because he or she does not have a child in his or her care.

In 20 CFR part 404, subpart E, we are removing § 404.422, which contained the basic rules for making deductions from Social Security benefits because of a disability beneficiary's refusal to accept VR services without good cause. In addition, we are amending other sections of our regulations in 20 CFR part 404, subpart E, to remove references to section 222(b) of the Act or § 404.422, or to remove language or paragraphs relating to deductions from Social Security benefits on account of a beneficiary's refusal of VR services without good cause. We are making these changes to §§ 404.401(b), 404.402(a), (b)(2) and (d)(4), 404.412(a)(1), 404.421(d), 404.423, 404.425, 404.435(a)(2), 404.436, 404.437(a), and 404.458. In §§ 404.402(a), 404.436(b) and 404.437(a), we also are making changes to certain provisions to remove outdated, gender-specific references to a woman's failure to have care of a child as a cause for a deduction from benefits, to update and make these provisions consistent with § 404.421.

In § 404.902, we are removing and reserving paragraph (g), relating to determinations about a deduction from Social Security benefits because of a beneficiary's refusal to accept rehabilitation services. In addition, we are amending § 404.1596(b)(2) to remove the provision providing for a suspension of Social Security benefits if a beneficiary refuses to accept VR services without a good reason.

Sections 416.213, 416.1328, and 416.1715 set out the basic rules on ineligibility for, or the suspension of, SSI benefits because of a disabled or blind SSI beneficiary's refusal to accept VR services without good cause. We are removing these sections from our regulations.

In § 416.708, we are removing and reserving paragraph (i), relating to an SSI beneficiary's responsibility to report to us his or her refusal to accept VR services. We also are amending § 416.1701 to remove the references to a refusal of VR services. In addition, we are amending § 416.2040(b) to remove the language discussing a refusal of VR services under section 1615 of the Act.

In 20 CFR part 404, subpart V, and part 416, subpart V, we are removing §§ 404.2113 and 416.2213, respectively, relating to payment for VR services provided a beneficiary in a case where benefit sanctions are imposed because the beneficiary, without good cause, refused to continue or cooperate in a VR program. We also are making conforming changes to §§ 404.2101, 404.2102, 404.2103, 404.2109, 404.2116 and 404.2117 to reflect the removal of § 404.2113, and to §§ 416.2201, 416.2202, 416.2203, 416.2209, 416.2216 and 416.2217 to reflect the removal of § 416.2213.

Under section 702(a)(5) of the Act, 42 U.S.C. 902(a)(5), SSA follows the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in the development of its regulations. The APA provides exceptions to its notice and public comment procedures when an agency finds there is good cause for dispensing with such procedures on the basis that they are “impracticable, unnecessary, or contrary to the public interest.” See 5 U.S.C. 553(b)(B).

We have determined that, under 5 U.S.C. 553(b)(B), good cause exists for dispensing with the notice and public comment procedures for the changes to the regulations described above. The changes merely conform our regulations to current law by removing rules and related provisions which are obsolete as a result of the repeal of sections 222(b) and 1615(c) of the Act concerning sanctions for refusing rehabilitation services without good cause. These sections of the Act were repealed by sections 101(b)(1)(C) and (b)(2)(B) of Public Law 106-170, effective January 1, 2001. Because the removal of obsolete provisions from our regulations to reflect the repeal of these sections of the Act does not involve the exercise of discretionary rulemaking authority, we find that it is unnecessary to publish proposed rules and offer the public the opportunity to comment before we publish final rules. Moreover, because our existing regulations are inconsistent with current law and could mislead the public, we also find that further delay in amending these regulations, to allow for public comment, would be contrary to the public interest.

Section 553(d) of 5 U.S.C. provides that, with certain exceptions, the effective date of a “substantive rule” shall not be less than 30 days after its publication. We find that good cause exists for an exception for these final rules. As noted above, these final rules merely reflect the statutory changes made by sections 101(b)(1)(C) and (b)(2)(B) of Public Law 106-170. For the reasons discussed in the section above entitled “Proceeding Directly to Final Rules,” we find that delaying the effective date for 30 days after publication would also be unnecessary and contrary to the public interest. See 5 U.S.C. 553(d).

The Office of Management and Budget (OMB) has reviewed these final rules in accordance with Executive Order 12866, as amended by Executive Order 13258.

We certify that these final rules will not have a significant economic impact on a substantial number of small entities because they primarily affect only individuals, and those entities that voluntarily entered into a contractual agreement with us. Therefore, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

These final regulations impose no reporting or recordkeeping requirements that require OMB clearance.

In accordance with section 513(f)(1) of the act (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976, the date of enactment of the amendments, generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA rulemaking process. These devices remain in class III and require premarket approval, unless and until the device is classified or reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the act, to a predicate device that does not require premarket approval. The agency determines whether new devices are substantially equivalent to previously marketed devices by means of premarket notification procedures in section 510(k) of the act (21 U.S.C. 360(k)) and 21 CFR part 807 of the FDA regulations.

Section 513(f)(2) of the act provides that any person who submits a premarket notification under section 510(k) of the act for a device that has not previously been classified may, within 30 days after receiving an order classifying the device in class III under section 513(f)(1) of the act, request FDA to classify the device under the criteria set forth in section 513(a)(1) of the act. FDA shall, within 60 days of receiving such a request, classify the device by written order. This classification shall be the initial classification of the device. Within 30 days after issuing an order classifying the device, FDA must publish a notice in the Federal Register announcing the classification.

On March 17, 2003, FDA received a petition submitted under section 513(f)(2) of the act by Aerocrine AB, through Certified Software Solutions, Inc., seeking an evaluation of the automatic class III designation of its NIOX BREATH NITRIC OXIDE TEST SYSTEM. In accordance with section 513(f)(1) of the act, FDA issued an order automatically classifying the NIOX BREATH NITRIC OXIDE TEST SYSTEM in class III because it was not substantially equivalent to a device that was introduced or delivered for introduction into interstate commerce for commercial distribution before May 28, 1976, or a device that was subsequently reclassified into class I or II. After reviewing information submitted in the petition, FDA determined that the NIOX BREATH NITRIC OXIDE TEST SYSTEM can be classified in class II with the establishment of special controls. This device is intended to aid in evaluating an asthma patient's response to anti-inflammatory therapy by measuring changes in fractional exhaled nitric oxide concentration in asthma patients, as an adjunct to established clinical and laboratory assessments of asthma. FDA believes that class II special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.

FDA has identified the risk to health associated specifically with this type of device as improper patient management. Therefore, in addition to the general controls of the act, the device is subject to a special controls guidance document entitled “Class II Special Controls Guidance Document: Breath Nitric Oxide Test System.”

The class II special controls guidance provides information on how to meet premarket (510(k)) submission requirements for the device, including recommendations for labeling and performance studies. FDA believes that adherence to the class II special controls addresses the potential risk to health identified in the previous paragraph and provides a reasonable assurance of the safety and effectiveness of the device.

Following the effective date of this final classification rule, any firm submitting a 510(k) premarket notification for a breath nitric oxide test system will need to address the issues covered in the special controls guidance document. However, the firm need only show that its device meets the recommendations of the guidance or in some other way provides equivalent assurances of safety and effectiveness.

Section 510(m) of the act provides that FDA may exempt a class II device from the premarket notification requirement under section 510(k) of the act, if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this type of device, FDA has determined that premarket notification is necessary to provide reasonable assurance of safety and effectiveness and, therefore, the device is not exempt from the premarket notification requirements. The device is used as an aid in evaluating an asthma patient's response to anti-inflammatory therapy by measuring changes in fractional exhaled nitric oxide concentration in asthma patients, as an adjunct to established clinical and laboratory assessments of asthma. FDA review of performance characteristics and labeling will ensure that acceptable levels of performance for both safety and effectiveness are addressed before marketing clearance. Thus, persons who intend to market this device must submit to FDA a premarket notification submission containing information on the breath nitric oxide test system before marketing the device.

On April 30, 2003, FDA issued an order classifying the NIOX BREATH NITRIC OXIDE TEST SYSTEM and substantially equivalent devices of this generic type into class II under the generic name, breath nitric oxide test system. FDA identifies this generic type of device as a breath nitric oxide test system, which is intended to aid in evaluating an asthma patient's response to anti-inflammatory therapy by measuring changes in fractional exhaled nitric oxide concentration in asthma patients, as an adjunct to established clinical and laboratory assessments of asthma.

FDA is codifying this device by adding § 862.3080. The order also identifies a special control applicable to this device, a guidance document entitled “Class II Special Controls Guidance Document: Breath Nitric Oxide Test System.”

In order to receive the guidance entitled “Class II Special Controls Guidance Document: Breath Nitric Oxide Test System” via your fax machine, call the CDRH Facts-on-Demand system at 800-899-0381 or 301-827-0111 from a touch-tone telephone. At the first voice prompt, press 1 to enter the system. At the second voice prompt, press 1 to order a document. Enter the document number (1211) followed by the pound sign (#). Follow the remaining voice prompts to complete your request.

Persons interested in obtaining a copy of the guidance may also do so using the Internet. CDRH maintains an entry on the Internet for easy access to information including text, graphics, and files that may be downloaded to a personal computer with Internet access. Updated on a regular basis, the CDRH home page includes the civil money penalty guidance documents package, device safety alerts, Federal Register reprints, information on premarket submissions (including lists of approved applications and manufacturers' addresses), small manufacturers' assistance, information on video conferencing and electronic submissions, Mammography Matters, and other device-oriented information. The CDRH home page may be accessed at http://www.fda.gov/cdrh.

The agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is consistent with the regulatory philosophy and principles identified in the Executive order. In addition, the final rule is not a significant regulatory action as defined by the Executive order and so it is not subject to review under the Executive order.

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. FDA knows of only one manufacturer of this type of device. Classification of these devices from class III to class II will relieve manufacturers of the device of the cost of complying with the premarket approval requirements of section 515 of the act (21 U.S.C. 360e), and may permit small potential competitors to enter the marketplace by lowering their costs. The agency, therefore, certifies that the final rule will not have a significant impact on a substantial number of small entities. In addition, this final rule will not impose costs of $100 million or more on either the private sector or State, local, and tribal governments in the aggregate and, therefore, a summary statement of analysis under section 202(a) of the Unfunded Mandates Reform Act is not required.

FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.

This final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

1. The authority citation for 21 CFR part 862 continues to read as follows:

(a) Identification . A breath nitric oxide test system is a device intended to measure fractional nitric oxide in human breath. Measurement of changes in fractional nitric oxide concentration in expired breath aids in evaluating an asthma patient's response to anti-inflammatory therapy, as an adjunct to established clinical and laboratory assessments of asthma. A breath nitric oxide test system combines chemiluminescence detection of nitric oxide with a pneumotachograph, display, and dedicated software.

(b) Classification . Class II (special controls). The special control is FDA's guidance entitled “Class II Special Controls Guidance Document: Breath Nitric Oxide Test System.” See § 862.1(d) for the availability of this guidance document.

The Immigration and Nationality Act, section 222(e), requires that all applicants for immigrant visas appear personally before a consular officer, but leaves the question of personal appearance of nonimmigrant visa applicants to be defined by regulation. The Department's regulations state a usual requirement of personal appearance by nonimmigrant visa applicants, but for at least forty years have defined a range of applicants whose appearance may be waived by the consular officer— i.e. , granted a “personal appearance waiver” or “PAW.”

Because of heightened security concerns in the period immediately following September 11, the Department undertook a thorough review of its visa application and issuance procedures. As a result of that review, consular officers have begun to interview a much larger percentage of nonimmigrant visa applicants than they did prior to September 11, both in response to Department internal guidance and as a result of decisions made at consular posts. Because of the continuing need to ensure that the visa process is focused on security concerns, the Department believes it is desirable to codify the changed practice into regulation and to provide a regulatory basis for further adjusting the interview exemptions through centralized direction, as appropriate. This rule is intended to reflect the current scope and use of consular and Departmental personal appearance waiver authority. This amended version of the regulation generally permits waivers of the interview by consular officers in significantly fewer kinds of cases than the regulation being amended. The one exception is that the regulation raises the age of children who may qualify for consular officer interview waivers from age 14 to age 16. Consular officers will no longer have broad discretion under regulation to grant PAWs with respect to applicants for B, C-1, H-1, I, J and crew visas. In certain circumstances, however, officers will have discretion to grant PAWs for applicants for any category of nonimmigrant visa who have previously been issued a visa in the same category for which they are applying. The amended regulation continues consular authority for granting PAWs to diplomats and officials of international organizations. Further, it will allow the Deputy Assistant Secretary for Visa Services to waive the personal appearance requirement in specific situations, i.e. , when the Department determines, centrally, that the waiver would not be inconsistent with homeland security interests. Thus, the regulation effectively shifts to the Department authority to make a number of interview waiver decisions previously made at consular posts.

Under the revised regulation, a consular officer may waive the personal appearance of a visa applicant in six specific categories. These are: (1) Children age 16 and under; (2) persons age 60 years or older; (3) most of the applicants within a class of nonimmigrants classifiable under the visa symbols A, C-2, C-3, G, or NATO (with the exception of attendants, servants and personal employees); (4) aliens applying for diplomatic or official visas, as defined in 22 CFR 41.26 and 41.27, respectively; (5) applicants who within twelve months of the expiration of their previous visa are seeking re-issuance of a nonimmigrant visa in the same classification at the consular post of the alien's usual residence, and for whom the consular officer has no indication of any noncompliance with U.S. immigration laws and regulations, and (6) aliens for whom a waiver of personal appearance is warranted in the national interest or because of unusual circumstances, as determined by the consular officer.

Experience shows that applicants in the first and second categories pose very little if any threat to our security. Persons in the third and fourth categories, diplomats and officers or employees of international organizations and their immediate families are ordinarily very well known to embassy staff members, or there is extensive background information available concerning them. In addition, international law, comity and reciprocity with regard to official personnel may appropriately be taken into account. In the fifth category, the previous personal appearance by and interview of the applicant would make it unlikely that further appearance and interview would reveal any basis for refusal. Applicants in the sixth category, except for those cases based on medical issues, will generally be important contacts of embassy officers and therefore well known to the embassy. It is important to understand, however, that, although the consular officer has discretion to waive personal appearance for an individual falling in one of the six categories, waiver is never required.

In addition to the waiver authority granted to consular officers in the six specific categories listed above, as mentioned, the Deputy Assistant Secretary for Visa Services will have the authority to waive the requirement for personal appearance for a class of individuals when the Deputy Assistant Secretary is satisfied that the waiver is in the national interest or involves unusual circumstances.

The Department is publishing this rule as an interim rule, with a 60-day provision for post-promulgation public comments, based on the “good cause” exceptions set forth at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). It is dictated by the necessity of additional controls over the documentation and entry of aliens at this time, in light of the continuing threat of terrorist attacks on the United States and, as noted, is bringing the Department's regulation into line with practices that are already generally in effect through the discretionary exercise of existing waiver authority.

Pursuant to section 605 of the Regulatory Flexibility Act, the Department has assessed the potential impact of this rule, and the Department of State hereby certifies that it is not expected to have a significant economic impact on a substantial number of small entities.

This document contains amendments to 26 CFR part 1 under section 280F of the Internal Revenue Code of 1986 (Code).

Section 280F(a) limits annual depreciation deductions for passenger automobiles in order to discourage overspending on passenger automobiles purchased for use in business. For the 2003 taxable year, these limitations delay a portion of the otherwise allowable depreciation deductions for passenger automobiles with a purchase price above $15,300 (for passenger automobiles qualifying for additional first-year depreciation under section 168(k)(1), added by the Job Creation and Worker Assistance Act of 2002 (JCWAA), or under section 168(k)(4), added by Jobs and Growth Tax Relief Reconciliation Act of 2003 (JGTRRA), the delay affects depreciation deductions for vehicles that cost more than $17,500 or $17,850, respectively). Passenger automobiles are defined in section 280F(d)(5)(A) as any 4-wheeled vehicle which is manufactured primarily for use on public streets, roads, and highways, and which is rated at 6,000 pounds unloaded gross vehicle weight (or, in the case of a truck or van, 6,000 pounds gross vehicle weight) or less. Section 280F(d)(5)(B) provides exceptions from this definition, and allows the Secretary to promulgate regulations to exclude trucks and vans from the definition of passenger automobiles.

While a basic automobile may be fully depreciated over five years under these rules, small business advocates have suggested that taxpayers with a valid business need for a van or light truck cannot fully depreciate a basic van or light truck within the standard five-year recovery period. Treasury and the IRS recognize that these vehicles generally cost more than other passenger automobiles and that even the most basic van or light truck may be subject to the section 280F(a) depreciation limits.

Some commenters on this issue suggested that the dollar limits on trucks and vans should be raised to reflect the higher cost of these vehicles. Although there is no general authority in section 280F to raise the dollar limits for specific types of vehicle, section 280F(d)(7) provides for adjustments to the dollar limits to reflect automobile price inflation since 1988. Moreover, much of the disparity between the cost of vans and light trucks and the cost of other passenger automobiles is attributable to the higher rate of price inflation for vans and light trucks since 1988. Accordingly, the revenue procedure setting forth the inflation-adjusted dollar limits for vehicles placed in service in 2003 will respond to the suggestion by providing higher dollar limits for vans and light trucks to reflect this higher rate of price inflation.

In addition, as noted above, JCWAA and JGTRRA have provided temporary relief by substantially increasing the first-year depreciation limits for all new passenger automobiles, including vans and light trucks. Thus, a taxpayer electing the 50-percent additional first-year depreciation permitted by JGTRRA can recover the full cost of a new automobile costing nearly $23,000 over the five-year recovery period. The revenue procedure described above would provide an even higher limit for new vans and light trucks.

Comments also suggested that Treasury and the IRS should exercise the regulatory authority in section 280F(d)(5)(B)(ii) to provide an exclusion from the section 280F(a) depreciation limitations for all trucks and vans or for vehicles that are used in a specified manner. Treasury and the IRS have concluded that a limited exclusion is appropriate so long as it is based on objective factors and does not provide an incentive to purchase a truck or van when a less-expensive automobile would be sufficient to fulfill the taxpayer's business needs. Accordingly, the temporary regulations exclude from the definition of passenger automobile any truck or van that is a qualified nonpersonal use vehicle as defined in § 1.274-5T(k) of the Income Tax Regulations. Qualified nonpersonal use vehicles include not only the trucks and vans listed in § 1.274-5T(k)(2), but also trucks and vans described in § 1.274-5T(k)(7) (relating to trucks and vans that have been specially modified, such as by installation of permanent shelving and painting the vehicle to display advertising or the company's name, so that they are not likely to be used more than a de minimis amount for personal purposes). These specially manufactured or modified vehicles do not provide significant elements of personal benefit, and a taxpayer is unlikely to purchase these vehicles unless motivated by a valid business purpose that could not be met with a less-expensive vehicle. We welcome comments on other options that provide administrable objective standards and are consistent with the statutory purpose.

The temporary regulations also strike from § 1.280F-6T language relating to expired provisions of the Code.

The temporary regulations apply to property placed in service on or after July 7, 2003.

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

The principal author of these regulations is Bernard P. Harvey, Office of Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and Treasury Department participated in their development.

On July 23, 2002, the Treasury Department and the IRS published in the Federal Register (67 FR 48070) a notice of proposed rulemaking (REG-115781-01) conforming the income, gift, and estate tax regulations to the Tax Court's decision in Estate of Boeshore v. Commissioner, 78 T.C. 523 (1982), acq. in result (1987-2 C.B. 1). Specifically, the existing regulations under section 170, 2055, and 2522 governing charitable guaranteed annuity and unitrust interests were proposed to be amended to eliminate the requirement that the charitable interest commence no later than the commencement of a noncharitable interest that is in the form of a guaranteed annuity or unitrust interest. The regulations will continue to require that any amounts payable for a private purpose before the expiration of the charitable annuity or unitrust interest either must be in the form of a guaranteed annuity or unitrust interest or must be payable from a separate group of assets devoted exclusively to private purposes.

No public hearing was requested or held, but one written comment was received. The commentator suggested that any charitable lead interest in a charitable remainder trust should be taken into account along with the remainder interest for purposes of satisfying the10 percent test contained in sections 664(d)(1)(D) and (d)(2)(D) of the Internal Revenue Code. Among the requirements for a trust to qualify as a charitable remainder trust, sections 664(d)(1)(D) and (d)(2)(D) provide that the present value of the remainder interest must be equal to at least 10 percent of the initial fair market value of all property placed in the trust. Because the statutory requirement is based solely on the value of the remainder interest, it is not possible to take into account any lead interests that pass to charity for purposes of satisfying this requirement. Accordingly, this document adopts final regulations with respect to the notice of proposed rulemaking without any changes.

The following publication is revoked as of July 7, 2003. Rev. Rul. 76-225 (1976-1 C.B. 281).

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedures Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulation does not impose a collection of information requirement on small entities, the provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply.

The principal author of these proposed regulations is Susan Hurwitz of the Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, personnel from other offices of the IRS and the Treasury Department participated in their development.

As part of a comprehensive revision of ventilation standards, MSHA published the existing rule, § 75.362, On-shift Examination, on March 11, 1996 (61 FR 9764). Section 75.362(d)(1) requires that a qualified person test for methane at the start of each shift at each working place before electrically powered equipment is energized, taken into or operated in a working place; immediately before equipment is energized, taken into or operated in a working place; and at 20-minute intervals, or more often if required in the approved ventilation plan at specific location, during the operation of equipment in the working place. Section 75.362(d)(2) requires that these methane tests be made at the face from under permanent roof support, using extendable probes or other acceptable means. On September 25, 2002, in response to a joint petition from a labor and an industry group, MSHA published the proposed rule (67 FR 60611) to allow the alternative method of testing for methane. The comment period closed on November 25, 2002. Four commenters responded to the proposed rule. MSHA received no hearing requests.

On-shift examinations of working sections have long been accepted as a standard safety practice in coal mining due to the variable nature of mining conditions and the potential for hazards to develop quickly. These examinations ensure that the environment is safe while miners work during the shift by identifying existing or developing hazards, and permitting rapid correction of hazardous conditions before miners are endangered. Methane tests are a key part of the on-shift examination.

Methane is an invisible, odorless, and highly flammable product of coal off-gassing which liberates from the coal at the face, roof, ribs and floor, as well as from pieces of broken coal that have been crushed by the mining machine. A five to 15 per cent level of methane in the air is capable of igniting, which in turn can result in a fire or an explosion. Frictional methane ignitions in mining can occur when sparks or hot metal fragments from the drill bits on mining equipment or roof bolting machines contact the liberated methane. Ventilation, as provided by an approved ventilation plan, dilutes and removes the liberated methane.

Over the years, the coal mining industry has expanded its use of a number of mining methods that increase production. One such method is deep cut mining, also called extended cut mining, where a continuous mining machine makes cuts greater than 20 feet into the coal seam. Formerly, when most continuous mining machines were operated by an on-board miner positioned in the cab at the rear of the machine, the cut was limited to the distance between the cutting head and the cab, or about 20 feet, to protect the miner in the cab from hazards associated with unsupported roof. Today, most continuous mining machines are manufactured to operate with remote control devices, which allow the machines to cut well beyond 20 feet into the coal seam while the miner stands under supported roof and in an area of reduced coal dust.

Most of the mining operations today use continuous mining machines that make deep cuts. These longer distances to the face make monitoring and removing methane more difficult. The devices used to test for methane often consist of a methane detector attached to either a pole which may be held by the miner or an extension device which the miner slides forward to the face. In mining sections with deep cuts, the longer probe arrangements can telescope 40 feet or more. The comments and testimony from the 1996 rulemaking include suggestions that back injuries could result from holding the longer probes, although some miners testified that the arrangements are practicable without causing injuries. MSHA is not aware of any empirical testing concerning injuries from the use of these probe arrangements; however, we are mindful of the importance of seeking compliance alternatives that will ensure safe working practices.

Generally, miners begin a deep cut operation by directing the ventilation to the face, usually by positioning tubes or curtains. A qualified person then makes a methane test, and the continuous mining machine is moved into the area. The continuous mining machine generally cuts from 20 to 40 feet into the coal seam. When the coal is mined from the cut, the continuous mining machine is backed out, and the ventilation may be adjusted to redirect more air to the next face area.

The roof bolting machine then moves into the working place. Virtually every roof bolting machine in operation today is equipped with an automated temporary roof support (ATRS) system. When the ATRS is deployed, steel hydraulic jacks position a support against the roof. This configuration provides the protection of temporary roof support for the miners who are positioned at the drill head control to install the roof bolts. Once the ATRS is fully deployed, the miner begins the installation process. Generally four or more roof bolts are installed across the width of the cut. When the row of roof bolts is installed, the roof bolting machine advances approximately four feet, depending on the roof bolting plan and machine design, and the process is repeated until the entire roof is supported up to the face.

During this entire process, a qualified person, as defined in § 75.151, makes a methane test at the face before electrically powered equipment is energized, taken into or operated in the workplace, and at intervals not exceeding 20 minutes during the operation of this equipment.

In 1997 MSHA tested an arrangement for making methane tests at the face by magnetically attaching a portable methane detector to the head of the continuous mining machine, which would be trammed forward by remote control to the face for the test. However, similar arrangements for making methane tests from roof bolting machines are not practicable because roof bolting machines do not operate by remote control.

The National Institute for Occupational Safety and Health (NIOSH) conducted a study (“Comparison of Methane Concentrations at a Simulated Coal Mine Face During Bolting”) which examined issues related to methane in working places during roof bolting. In 1999, NIOSH presented the study at the 8th U.S. Mine Ventilation Symposium, sponsored by the Society of Mining Engineers' Underground Ventilation Committee. The testing consisted of gallery simulations using a model roof bolting machine fitted with instrumentation to record methane levels at various locations in the simulated working place under different methane release conditions. A part of this study examined MSHA's 38 accident investigation reports from 1981 to 1994 which involved methane ignitions at roof bolting machines. The ignition source was at the roof bolting machine in 37 of these accidents, and no ignition source was identified in the one remaining accident. The report shows that a combination of continuous monitoring near the drill head together with methane tests inby the roof bolting machine would be effective in identifying methane hazards when the primary source of methane liberation is at the drill hole.

During the period 1994 through 2001, MSHA investigated 16 accidents which involved methane ignitions at roof bolting machines. Twelve of these accidents directly involved roof drilling or bolt installation. Consistent with the ignitions studied by NIOSH, the accidents involving roof drilling or bolt installation occurred when a hot drill bit being pulled out of the drill hole ignited a flammable methane-air mixture, or when the miner inadvertently drilled through metal roof straps or encountered harder than normal rock strata in the mine roof.

In November, 1998, the United Mine Workers of America (UMWA) and the Bituminous Coal Operators Association (BCOA) jointly recommended that MSHA amend the current rule to allow the option of making methane tests by sweeping a probe 16 feet inby the last area of supported roof, provided that a number of mandatory precautions are taken, such as providing the roof bolting machine with both an integral ATRS and a permanently-mounted continuous methane monitor. The joint recommendation cited the draft NIOSH study, and UMWA and BCOA further stated that the suggested compliance option would promote greater safety. MSHA believes that this optional method for methane testing does not diminish safety provided in the existing rule, and is therefore publishing this final rule, which is largely based on the NIOSH research and the joint recommendation of labor and industry. The rule is designed to protect the miner and to be easily integrated into the mining cycle.

This final rule adds a new subparagraph after the existing § 75.362(d)(2) to allow an optional method for making methane tests during roof bolting activities in room and pillar mining operations using continuous mining machines. Thus the phrase “Except as provided in subparagraph 75.362(d)(3)” is added to the beginning of § 75.362(d)(2) to clearly show that this option follows.

This final subparagraph allows an alternative method of compliance with subparagraph (d)(2) during roof bolting. This section remains unchanged from the proposed rule. The required methane tests may be made by using a probe or other acceptable means to sweep not less than 16 feet inby the last area of permanently supported roof, provided certain requirements are met, as outlined in subparagraphs 75.362(d)(3)(i) through (vi). MSHA believes that testing at the 16 foot inby minimum distance provides protection equivalent to the current requirement and does not diminish safety. The probe extends a sufficient distance into the unsupported area to test for methane which may be accumulating inby the roof bolting machine.

Certain difficulties exist in actually making the tests under the current standard. The longer probe arrangements required to reach the face of a deep cut can be unwieldy, and therefore difficult to position accurately at the face. Methane tests at the face currently must be made with the detector positioned at least 12 inches from the roof, rib and face.

The NIOSH study determined that:

The study further determined that:

Prior to the 1996 rulemaking on ventilation standards, methane tests were made at the last permanent roof support, unless the approved ventilation plan required the tests to be made closer to the working face by using extendable probes or other acceptable means. When MSHA published the proposed revisions in 1994, some commenters expressed concerns about possible higher accumulations of methane in the deep cuts, particularly at the face area, where the freshly exposed surfaces allow more methane to liberate. These commenters wanted the methane tests to be made as close to the working face as practicable without endangering the miner. MSHA agreed with these comments. Additionally, data from research done by MSHA and the former Bureau of Mines during the prior 25 years, such as Bureau of Mines Report of Investigation 7223, “Face Ventilation in Underground Bituminous Coal Mines,” published in 1969, suggested higher methane concentrations near the face area. The final rule published in 1996 required that methane tests be made at the face area.

The existing requirement to make all methane tests at the face area was intended to provide adequate testing in extended cuts. However, as stated above, the ignition hazard during roof bolting is not necessarily at the same location as during cutting, that is, the face area. The conditions required for an ignition may be present at the drill head when the miner drills into the roof. Methane tests made at a minimum distance of 16 feet inby the last area of permanently supported roof, augmented with the continuous methane monitor on the ATRS, provide adequate assurance that hazardous levels of methane are not present or accumulating either in the cut or around the roof bolting machine at the time the roof bolter is drilling. The alternative testing method does not diminish safety and provides at least equivalent protection by supplementing methane tests inby the area where roof bolting takes place with continuous monitoring at the roof bolting machine where methane ignitions have occurred at the time that drilling is occurring. This optional compliance method may only be used if the conditions of subparagraphs § 75.362(d)(3)(i) through (vi) are met, as discussed below.

Several commenters suggested that the 20-minute methane tests should be made either by sweeping a shorter distance, e.g. , two rows of bolts or ten feet, or by using a handheld methane detector to make the test at the last area of supported roof. Two of these commenters suggested that testing with the shorter probe or the hand-held methane detector at more frequent intervals, such as before or after the roof bolting machine advances, would ensure protection.

One commenter stated that there was no reason to select a distance of 16 feet. MSHA believes that the combination of 16-foot minimum sweeps to test for methane accumulating in the cut and continuous methane monitoring at the site where drilling occurs provides the level of protection that is equivalent to the current requirement and does not diminish safety. As discussed above, methane liberates at higher rates from the freshly exposed surfaces at the face area than from outby areas. In addition, ventilation controls ordinarily do not extend substantially beyond the roof bolting machine. Accordingly, it is prudent to perform methane tests to ensure that bodies of methane are not accumulating in the cut. Testing with a shorter probe or with a hand-held detector, as suggested by these commenters, would not provide adequate assurance that methane is not accumulating further in the cut. Finally, the joint recommendation of labor and industry, which was based on the NIOSH study, identified 16 feet as an appropriate testing distance. For these reasons, MSHA has not revised the testing distance in the final rule. However, based on the conditions at a particular mine, an operator may, as a mine procedure, specify that testing in addition to the requirements of this final rule would be of value.

Other commenters suggested that the probes required for a 16-foot sweep would be unwieldy, thereby compromising the accuracy of the test. MSHA notes that 20-foot probes have been used in the coal industry for many years. Therefore, MSHA concludes that the probe arrangements required to sweep 16 feet inby are manageable and do not present any hazards to miners.

One commenter suggested that the methane tests made during roof bolting should be made between six and twelve inches from the roof, at the roof bolting machine, immediately before each row of roof bolts is installed, noting that the likely ignition source would be close to the roof. The commenter added that the potential hazard during roof bolting is not the same as that presented during mining (and addressed by testing at the face). MSHA believes that the inby methane hazard during roof bolting is comparable to that found inby during the mining process. Testing for methane at a minimum distance of 12 inches from the roof has been an MSHA requirement for a number of years, and the procedure has proven to be effective. Therefore, this provision remains unchanged.

A commenter recommended expanding the rule to allow dual methane monitors mounted on the continuous mining machine as an alternative method to test for methane while the continuous mining machine is operating. This recommendation has not been addressed because this change is beyond the scope of the proposal.

This subparagraph of the final rule requires the roof bolting machine to be equipped with an integral automated temporary roof support (ATRS) system if the alternative testing method is used, and further requires the ATRS to meet the requirements of § 75.209. Section 75.209 provides technical requirements for ATRS systems, which are installed on virtually all roof bolting machines. The ATRS provides the miner with an additional level of protection during roof bolting operations. This final section is unchanged from the proposed rule. No comments were received concerning this provision.

This subparagraph of the final rule requires the roof bolting machine to have a permanently mounted methane monitor. The subparagraph is unchanged from the proposed rule. MSHA believes that a methane monitor on the roof bolting machine is an effective method of testing for methane at a potential principal ignition source during roof bolting operations, and is consistent with the NIOSH study determinations.

The subparagraph further requires that the methane monitor complies with the requirements of existing §§ 75.342(a)(4), 75.342(b) and 75.342(c). Section 75.342(a)(4) establishes maintenance and calibration requirements, requires training for miners who perform this maintenance and calibration, and establishes recordkeeping and records retention requirements for the calibration tests. While this final rule allows an alternative method for making methane tests, it also requires the methane monitors on the roof bolting machines to be properly maintained at all times, and thus does not allow the use of a methane detector and probe in lieu of a poorly maintained or inoperative methane monitor on the roof bolting machine. Section 75.342(b) requires the methane monitor to give a warning signal when the air-methane concentration reaches 1.0 per cent, and further requires this warning signal to be visible to someone who is able to de-energize the machine to which the monitor is mounted. Section 75.342(c) requires the methane monitor to automatically de-energize the machine to which it is mounted when the methane-air mixture reaches 2.0 per cent or when the monitor is not operating properly. The warning signal and automatic de-energization capability provide an additional measure of protection to miners.

Although methane monitors can be magnetically mounted on roof bolting machines, this subparagraph requires that they be permanently mounted for reliable operation and to assure that the sensor remains in an effective location. Although MSHA does not anticipate that permanently mounting the methane monitor on the ATRS would require recertification of the ATRS by the manufacturer, certification issues may be avoided by using clamping brackets, steel strapping, or high-strength adhesives to permanently mount the methane monitor to the ATRS. MSHA anticipates that equipment manufacturers and rebuilders will incorporate provisions into the ATRS design to accommodate the permanently mounted monitors. Additionally, 30 CFR part 18 requires MSHA approval before changes are made to approved equipment to ensure that permissibility of the equipment to operate in a gassy atmosphere has not been compromised. Section 18.81 outlines the requirements and application procedure for MSHA approval of this field modification.

This subparagraph of the final rule sets requirements for the position of the methane monitor sensor on the ATRS. The sensor must be mounted in a protected position near the inby end of the ATRS support; it must be within 18 inches of the longitudinal center of the ATRS; and it must be positioned at least 12 inches from the roof when the ATRS is fully deployed.

MSHA's requirement to mount the sensor near the inby end of the ATRS is based on the NIOSH study. In that study, NIOSH found the highest statistical correlation to be between face methane concentration and a point which would be near the downwind end of the ATRS. The requirement to position the methane sensor near the longitudinal center of the ATRS is intended to protect the methane sensor from damage during the mining cycle. Finally, the requirement for the methane sensor to rest at least 12 inches below the roof when the ATRS is deployed reflects the standard practice of measuring methane at least 12 inches from the roof to obtain a result representative of the general environment being measured. MSHA believes this distance achieves a balance between effectiveness and practicality.

The proposed rule would have required the methane sensor to be mounted “on the inby end and within 18 inches of the longitudinal center of the ATRS.” One commenter expressed a concern that this wording could be interpreted to mean requiring the methane sensor to be mounted on the front of the ATRS itself, where it would be subject to damage and would be isolated from potential methane accumulations nearer to the drill assembly. The language from the proposed rule has been modified to address this concern by requiring the sensor to be mounted “near the inby end and within 18 inches of the longitudinal center of the ATRS support.” The rule provides some flexibility in the position of the sensor with the intent of placing the sensor at a location where it will be protected from damage while providing effective detection of methane near the most likely ignition source at the drilling assembly.

The continuous methane monitor mounted to the roof bolting machine, together with the probe used to sweep inby for methane, comprise a two-element system for methane detection. MSHA believes this two-element system is effective in detecting methane in the zone containing the most likely ignition source.

This subparagraph of the final rule specifies the frequency of manual methane tests, and is consistent with § 75.362(d)(1)(iii), which in turn is derived from the statutory provision requiring methane tests to be made at least every 20 minutes while electrically powered equipment is operated (Mine Act, section 303(h)(1)). Additionally, the subparagraph specifies the location of the qualified person making the test.

In addition to the existing provisions contained in the final rule, the proposed subparagraph included the statement, “The manual methane test must be made immediately before the roof bolting machine enters the working place unless the last test was made within 20 minutes.” Two commenters disagreed with this provision. One of these commenters suggested that the wording was inconsistent with 30 CFR 75.362(d)(1). This commenter further discussed several examples of how the wording of the proposed rule could introduce confusion and how miners could tend to assume that test had been made. MSHA agrees with these commenters, and has removed this provision from the final rule. However, this test may be made using the 16-foot minimum inby sweep, as described in the above analysis for subparagraph 75.362(d)(3). The combination of the 16-foot minimum sweeps and the continuous methane monitor on the roof bolting machine ensures an accurate determination of the methane levels present during roof bolting. A further consideration is the rate of methane liberation during roof bolting. That is, methane liberates from the coal at a higher rate during the time that the coal is being cut. During that time, ventilation is directed toward the face, with the tubes, curtains, or other ventilation devices positioned behind the continuous mining machine and moving forward as the coal is cut. Since coal is not actively mined in the cut during roof bolting, methane liberation decreases. For these reasons, MSHA believes this alternative method does not diminish safety.

The proposed rule required the manual methane test to be made either “from under the last permanent roof support” or from the roof bolter's work position protected by the deployed ATRS. The final rule changes this language to require making the test either “from under permanent roof support” or from the roof bolter's work position protected by deployed ATRS. This change allows the final rule to better conform to MSHA's existing roof control rules and policies because most approved roof control plans do not generally permit miners past the second to the last row of permanent roof supports.

Subparagraph 75.362(d)(3)(v) of the final rule requires that, once a methane test is made at the face, all subsequent methane tests must be made at the face. As the roof bolting machine advances toward the face, the probe used for the methane test will eventually reach the face. A number of rows of roof bolts will then be installed before the roof bolting machine reaches the face area and the cut is completely bolted. Methane tests will be made at the face area while these final rows of roof bolts are installed.

One commenter suggested deleting this provision as part of an overall suggestion to test with a hand-held methane detector at the last permanent roof support. Another commenter suggested phrasing the rule so that testing at the face would be required when the roof bolting machine reaches a distance from the face equal to two rows of bolts. This distance would generally be about eight feet. As stated above, MSHA believes that the combination of 16-foot inby sweeps to test for methane accumulating in the cut and continuous methane monitoring at the roof bolting machine provides a level of protection that does not diminish safety. Testing with a hand-held methane detector at the last working place or with a shorter probe would not provide adequate assurance that methane is not accumulating further in the cut. Therefore, this subparagraph remains unchanged from the proposed rule.

Subparagraph 75.362(d)(3)(vi) of the final rule allows the district manager to require that the ventilation plan include a minimum air quantity and the position and placement of ventilation controls to be maintained during roof bolting operations. No comments were received on this subparagraph. The final rule is unchanged from the proposed rule.

The NIOSH study, as well as MSHA's experience, shows that ventilation is effective and appropriate during roof bolting operations under certain mining conditions. Some mines liberate substantial quantities of methane, or have a history of ignitions or noncompliance with respirable dust standards for bolting machine operators. The ventilation plans for such mines generally require minimum air quantities to be maintained at the roof bolting machine. In evaluating ventilation plans, district managers will continue to assess these and other factors to determine the necessity for plan parameters for air quantities and ventilation control devices.

The NIOSH study was conducted using ventilating air quantities of 4,000 cfm and 7,000 cubic feet per minute (cfm), with methane released at various points at a rate of five cfm. The study shows that ventilation is effective in removing methane from working areas around roof bolting machines where significant quantities of methane are liberated in the working place and at the face. In these conditions, mine ventilation plans could specify minimum ventilation quantities and the position of the ventilation control devices.

After the NIOSH study was completed, MSHA reviewed the accident reports for all of the 41 reported methane ignitions that occurred at roof bolting machines between 1994 and 1998. The MSHA report, “Methane Ignitions on Roof Bolters in Underground Coal Mines” found that all these ignitions occurred in mines that are considered to have the highest methane liberation. Each of these mines liberated over 850,000 cubic feet of methane per day. Section 103(i) of the Mine Act requires MSHA to conduct spot inspections at least every ten working days at mines liberating over 500,000 cubic feet of methane during a 24-hour period, and at least every five working days at mines liberating over one million cubic feet of methane during a 24-hour period.

The MSHA report, as well as MSHA's experience, indicates that most ignitions at roof bolting machines in mines that liberate significant quantities of methane can be avoided by maintaining adequate ventilation during roof bolting. The rule provides an equivalent level of safety as the existing rule and does not diminish safety, while at the same time allowing flexibility by permitting MSHA to set mine-specific requirements through the ventilation plan.

Executive Order 12866 requires regulatory agencies to assess both the costs and benefits of regulations. In making this assessment, MSHA determined that although this final rule will not have an annual effect of $100 million or more on the economy, and therefore is not a significant regulatory action as defined by § 3(f)(1) of E.O. 12866, the rule meets the § 3(f)(4) definition, that is, the rule may “* * * raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.” MSHA completed a Regulatory Economic Analysis (REA) which estimates both the costs and benefits of the rule. This REA is available from MSHA and is summarized below.

The final rule allows an alternative method of methane testing that ensures at least an equivalent level of protection as the existing standard and results in net cost savings of $6.9 million annually to the industry. 1 The alternative testing method augments periodic inby methane tests with continuous methane monitoring at the roof bolting machine. This two-tiered approach assures that hazardous levels of methane are not present or accumulating either inby or at the roof bolting machine.

The inby methane tests are made at least every 20 minutes by sweeping a probe or other acceptable arrangement at least 16 feet inby the last permanent roof support. However, when the probe reaches the face area, the remaining tests are made with the methane detector positioned at least 12 inches from the roof, rib, and face. A probe not longer than 20 feet will allow the qualified person to make this test from a safe position four feet outby the last permanent roof support. The shorter probe arrangements required for the 16-foot sweep are easier to maneuver and cost less than those used to comply with the existing requirements. Additionally, the sweeps can be made more quickly than the test required under the existing rule.

The alternative testing method also requires each roof bolting machine to have both an MSHA-approved, permanently mounted methane monitor and an integral ATRS system. The methane monitor must meet the maintenance and calibration requirements of § 75.342(a)(4), the warning signal requirements of § 75.342(b), and the automatic de-energization requirements of § 75.342(c). Further, the rule requires the sensor head of the methane monitor to be positioned at a specific location on the ATRS. In addition to continuously monitoring the atmosphere at the roof bolting site, the monitor will warn miners when methane levels reach one per cent, and will de-energize the roof bolting machine when methane levels reach two per cent. This continuous monitoring provision is significant in light of the number of ignitions involving roof drilling or bolt installation. These ignitions generally occur when sparks, hot metal fragments, or hot drill bits ignite a flammable methane-air mixture. They can also occur when the miner inadvertently drills through metal roof straps or encounters harder than normal material in the mine roof.

The Regulatory Flexibility Act (RFA) requires regulatory agencies to consider a rule's economic impact on small entities. Under the RFA, MSHA must use the Small Business Act definition of a “small business concern” in determining a rule's economic impact unless, after consultation with the SBA Office of Advocacy, and after opportunity for public comment, MSHA establishes a definition which is appropriate to the activities of the agency and publishes that definition in the Federal Register . For the mining industry, SBA defines “small” as having 500 or fewer workers. MSHA has traditionally considered small mines to be those with fewer than 20 workers. To ensure that the rule conforms with the RFA, MSHA analyzed the economic impact on mines with 500 or fewer workers and also on mines with fewer than 20 workers. MSHA concluded that the rule will not have a significant economic impact on a substantial number of small entities under either definition.

For purposes of the Unfunded Mandates Reform Act of 1995, the rule does not include any Federal mandate that may result in increased expenditures of more than $100 million incurred by State, local, or tribal governments, or by the private sector.

The information collection requirements contained in this final rule have been approved by the Office of Management and Budget (OMB) and were issued control numbers pursuant to the Paperwork Reduction Act of 1995 (PRA), as codified at 44 U.S.C. 3501-3520 and implemented by OMB in regulations at 5 CFR part 1320. The PRA defines collection of information as “the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public of facts or opinions by or for an agency regardless of form or format.” All paperwork burden hours and cost data used in this preamble are taken from MSHA's Regulatory Economic Analysis (REA), dated January, 2003. The REA can be accessed at http://www.msha.gov/regsinfo.htm .

MSHA estimates that the information collection requirements in this rule will impose a total of 315 paperwork burden hours in the first year, with an annualized burden of 117 hours each year thereafter. The estimated total annualized cost associated with these paperwork burden hours is $4,045.

Two information collection requirements are associated with § 75.362(d)(3)(ii). The first involves obtaining approval for field modifications to permissible electrical equipment, as required by § 18.81, and was approved by OMB as part of Information Collection No. 1219-0066, Permissible Equipment Testing, which expires on July 31, 2005. MSHA's Approval and Certification Center must approve all modifications to permissible equipment (including roof bolting machines) to ensure that permissibility of the equipment to operate in a gassy atmosphere has not been compromised. Each machine model at a mine requires a separate application for approval.

The second information collection requirement associated with § 75.362(d)(3)(ii) involves recording calibrations of methane monitors, as required by § 75.342(a)(4), and was approved by OMB as part of Information Collection No. 1219-0088, Ventilation Plans, Tests, and Examinations in Underground Coal Mines, which expires on March 31, 2004. Each methane monitor must be calibrated at least every 31 days, and a record of the calibration test must be maintained for at least one year from the date of the test.

Additionally, any information collection requirements that would be associated with the ventilation provision of § 75.362(d)(3)(vi) would be approved as part of Information Collection No. 1219-0088. This provision of the final rule imposes no additional paperwork burden.

This rule is not subject to Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. That is, this rule does not involve implementation of any policy with takings implications.

In accordance with Executive Order 13045, Protection of Children from Environmental Health Risks, MSHA has evaluated the environmental health and safety effects that this rule could have on children. MSHA has determined that the rule will not have an adverse impact on children.

MSHA has reviewed Executive Order 12988, Civil Justice Reform, and determined that the rule will not unduly burden the Federal court system. The rule has been written so as to provide a clear legal standard for affected conduct, and has been reviewed carefully to eliminate drafting errors and ambiguities.

MSHA certifies that this rule will not impose any substantial direct compliance costs on Indian tribal governments.

MSHA has reviewed this rule in accordance with Executive Order 13132 regarding federalism and has determined that the rule has no “federalism implications.” In other words, the rule does not have any 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.

MSHA has reviewed this rule in accordance with Executive Order 13211 regarding the energy effects of Federal regulations, and has determined that the rule does not have any adverse effects on energy supply, distribution, or use. Therefore, no reasonable alternatives to this action are necessary.

References:

1. Taylor, Charles, et al. , “Comparison of Methane Concentrations at a Simulated Coal Mine Face During Bolting,” U.S. Department of Health and Human Services, Center for Disease Control, National Institute for Occupational Safety and Health (NIOSH), 1999.

2. Urosek, John E., et al. , “Methane Ignitions on Roof Bolters in Underground Coal Mines,” U.S. Department of Labor, MSHA, presented at and included in the proceedings of the 8th U.S. Mine Ventilation Symposium, June 11-17, 1999.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this 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 Illinois program on June 1, 1982. You can find background information on the Illinois program, including the Secretary's findings, the disposition of comments, and the conditions of approval, in the June 1, 1982, Federal Register (47 FR 23858). You can also find later actions concerning the Illinois program and program amendments at 30 CFR 913.10, 913.15, and 913.17.

By letter dated April 8, 2002 (Administrative Record No. IL-5077), Illinois sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Illinois sent the amendment in response to a letter dated August 23, 2000 (Administrative Record No. IL-5060), that we sent to Illinois in accordance with 30 CFR 732.17(c), concerning valid existing rights. Illinois also included some changes at its own initiative. Illinois amended its surface coal mining and reclamation regulations at Title 62 of the Illinois Administrative Code (IAC).

We announced receipt of the proposed amendment in the May 17, 2002, Federal Register (67 FR 35072). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on June 17, 2002. We did not receive any public comments.

During our review of the amendment, we identified editorial-type errors. We notified Illinois of these errors by letters dated May 30, 2002, and March 31, 2003 (Administrative Record Nos. IL-5078 and IL-5082, respectively).

By letter dated March 14, 2003 (Administrative Record No. IL-5081), Illinois sent us revisions to its proposed program amendment. Also by letter dated April 25, 2003 (Administrative Record No. IL-5083), Illinois sent additional information. Because the revisions were editorial in nature and the additional information merely clarified certain provisions of Illinois' amendment, we did not reopen the public comment period.

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

1. Illinois deleted its definition of “Interagency Committee” at 62 IAC 1701.Appendix A. Illinois removed this definition because Illinois Public Act 90-0490 abolished the Illinois Interagency Committee on Surface Mining Control and Reclamation (Interagency Committee) through an amendment to 225 Illinois Compiled Statutes (ILCS) 720/1.05 in 1997.

On November 21, 2001, we approved the amendment to 225 ILCS 720/1.05 (66 FR 58371). Therefore, we find that the removal of the definition will not make Illinois' regulations less effective than the Federal regulations.

2. In the general definition section at 62 IAC 1701.Appendix A, Illinois removed the existing language from its definition of “valid existing rights” and replaced it with a reference to the new definition of “valid existing rights” found at 62 IAC 1761.5. Illinois’ regulations at 62 IAC Part 1761 concern areas designated by Act of Congress.

We find that relocating the definition of “valid existing rights” to the section concerning areas designated by Act of Congress is consistent with the Federal regulations at 30 CFR Part 761. We also find that providing a reference in the general definition section to the new definition of “valid existing rights” will clarify the location of the new definition for persons using the Illinois regulations.

3. Illinois proposed to redesignate existing 62 IAC 1762.14, concerning exploration on land designated as unsuitable for surface coal mining operations, as new 62 IAC 1762.15. However, during the adoption of redesignated 62 IAC 1762.15, two editorial errors were made. We notified Illinois of these errors on March 31, 2003 (Administrative Record No. IL-5082). By letter dated April 25, 2003 (Administrative Record No. IL-5083), Illinois indicated that the editorial errors would be corrected in the next State rulemaking.

We find that the redesignation of 62 IAC 1762.14 as 62 IAC 1762.15 is consistent with a recent change made to the counterpart Federal regulation. OSM redesignated its regulation concerning exploration on land designated as unsuitable for surface coal mining operations as 30 CFR 762.15. See 64 FR 70766, dated December 17, 1999. For this reason and because the editorial errors will not affect Illinois' implementation of its regulations concerning exploration on land designated as unsuitable for surface coal mining operations, we are approving 62 IAC 1762.15.

4. Illinois corrected citation references, made minor wording changes, and simplified its use of numbers in 62 IAC 1772.12, Permit Requirements for Exploration Removing More than 250 Tons of Coal; 1773.13(a)(1)(E) and (d), Public Participation in Permit Processing; 1773.15(c)(3)(B), (c)(11), and (c)(13), Review of Permit Applications; 1778.15(e), Right of Entry Information; 1778.16(c), Relationship to Areas Designated Unsuitable for Mining; 1780.31(a)(2), Protection of Public Parks and Historic Places; 1780.33, Relocation or Use of Public Roads; 1784.17(a)(2), Protection of Public Parks and Historic Places (Underground Mining); 1784.18, Relocation or Use of Public Roads (Underground Mining); 1816.116(a)(2)(C), Success of Revegetation; and 1847.9(a), Bond Release Public Hearings.

Because these changes are minor, we find that they will not make Illinois' regulations less effective than the corresponding Federal regulations.

Illinois' regulations listed in the table below contain language that is the same as or similar to the corresponding sections of the Federal regulations.

During the adoption of its new regulations at 62 IAC 1761.16 and 1772.12(b)(14) shown above, Illinois made three editorial errors. We notified Illinois of these errors on March 31, 2003 (Administrative Record No. IL-5082). By letter dated April 25, 2003 (Administrative Record No. IL-5083), Illinois indicated that the editorial errors would be corrected in the next State rulemaking. Because the editorial errors made to 62 IAC 1761.16 and 1772.12(b)(14) do not affect the meaning of these regulations, we included the regulations in the table above.

Because the State regulations listed in the table have the same meaning as the counterpart Federal regulations, we find that they are no less effective than the Federal regulations.

Illinois deleted existing subsection (b), which prohibited surface coal mining on specified Federal lands unless called for by Acts of Congress. Illinois also redesignated subsections (a)(1) through (a)(7) as subsections (a) through (g), corrected citation references, and simplified its use of numbers.

We are approving Illinois' deletion of 62 IAC 1761.11(b) because it is consistent with OSM's deletion of the counterpart Federal regulation at 30 CFR 761.11(h). See 64 FR 70766, dated December 17, 1999. We are also approving the other changes made to 62 IAC 1761.11 because they are minor and will not make Illinois' regulations less effective than the corresponding Federal regulations.

Illinois revised 62 IAC 1800.40(b)(2) to allow the Department, when no public hearing is held, to make its final administrative decision regarding a bond release application either 60 days after the application is filed or 5 days after the close of the comment period, whichever is later.

The counterpart Federal regulation at 30 CFR 800.40(b)(2) requires the regulatory authority to make its final decision within 60 days from the filing of the bond release application if no public hearing is held. The Federal regulation at 30 CFR 800.40(a)(2) and the State regulation at 62 IAC 1800.40(a)(2) require that the notice announcing the bond release be placed at least once a week for four successive weeks in a newspaper of general circulation in the locality of the surface coal mining operation. When Illinois submitted this amendment on April 8, 2002, it explained that because its public comment period extends to 30 days after the last publication of the notice announcing the bond release, it is possible for the public comment period to expire after the 60-day time limit required by 30 CFR 800.40(b)(2). We recognize that in many small communities in Illinois, the newspapers of general circulation in the locality of the surface coal mining operations may publish only one or two days a week. If the bond release applicant does not get the newspaper advertisement placed in a timely manner, it is possible that the 60-day time limit required by 30 CFR 800.40(b)(2) would expire before the public comment period ends. We find that Illinois' proposed rule would allow a bond release decision to be issued in a timely manner while ensuring consideration of all public comments before a final bond release decision is made. Illinois' proposed rule therefore adheres to the spirit of the Federal requirements at 30 CFR 800.40 in ensuring that the State makes a final decision on the bond release application in a timely manner. Based on the above discussion, we are approving Illinois' revisions at 62 IAC 1800.40(b)(2).

We asked for public comments on the amendment, but did not receive any.

On April 12, 2002, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Illinois program (Administrative Record No. IL-5079). We did not receive any comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Illinois proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment.

On April 17, 2002, under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from EPA (Administrative Record No. IL-5079). EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On April 12, 2002, we requested comments on Illinois' amendment (Administrative Record No. IL-5079), but neither responded to our request.

Based on the above findings, we approve the amendment as submitted by Illinois on April 8, 2002, and as revised on March 14, 2003.

We approve the regulations proposed by Illinois with the provision that they be fully promulgated in identical form to the regulations submitted to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 913, which codify decisions concerning the Illinois 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 rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

In this rule, the State is adopting valid existing rights standards that are similar to the standards in the Federal definition at 30 CFR 761.5. Therefore, these provisions have the same takings implications as the Federal valid existing rights rule. The takings implications assessment for the Federal valid existing rights rule appears in Part XXIX.E of the preamble to that rule. See 64 FR 70766, 70822-27, December 17, 1999. The provisions in the rule based on other counterpart Federal regulations do not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.

This rule is exempted from review by the Office of Management and Budget (OMB) 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 determination is based on the fact that the Illinois program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Illinois program has no effect on Federally-recognized Indian tribes.

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 fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act***; and rules and regulations consistent with regulations issued by the Secretary pursuant to this 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 North Dakota program on December 15, 1980. You can find background information on the North Dakota program, including the Secretary's findings, the disposition of comments, and conditions of approval in the December 15, 1980, Federal Register (45 FR 82214). You can also find later actions concerning North Dakota's program and program amendments at 30 CFR 934.12, 934.13, 934.15, and 934.30.

By letter dated November 21, 2002, North Dakota sent us an amendment to its program (Amendment number XXXII, Administrative Record No. ND-GG-01) under SMCRA (30 U.S.C. 1201 et seq. ). It sent the amendment on its own initiative. The amendment revises North Dakota's revegetation policy document. Many of the changes are made to incorporate rule changes that were approved by OSM and appeared in the March 2, 2001, Federal Register as part of State Program Amendment XXX (SPATS number ND-041-FOR) and other staff initiatives.

We announced receipt of the proposed amendment in the February 11, 2003, Federal Register (68 FR 6842). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (Administrative Record No. ND-GG-05). No one requested a public hearing or meeting so we did not conduct one. We did not receive any comments from the public.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17.

Throughout the revegetation success guidance document, North Dakota has made editorial and clarification changes. Examples of editorial changes include changing “Soil Conservation Service or SCS” to “Natural Resources Conservation Service or NRCS”, “which” to “that”, “units” to “site”, ensuring noun verb agreement, updating references, standardizing abbreviations and mathematical symbols, and revising example calculations to reflect the latest information. The editorial changes are no less effective than the Federal regulations.

Examples of changes made to clarify the existing document include adding text in: (1) Section II-B to identify using annual county yield reported by North Dakota Agricultural Statistic Service; (2) section II-C, to explain how to use the series modifiers in identifying appropriate productivity indices for each of the soil series listed in Table 1; and (3) section III-D to identify how to apply the various sampling methodologies for cover, production and density. None of these changes substantively revises the approved “Standards for Evaluation of Revegetation Success And Recommended Procedures for Pre-And Postmining Vegetation Assessments”.

Because these changes are minor, we find that they will not make North Dakota's revegetation policies less effective than the corresponding Federal regulations.

North Dakota proposed revisions to its revegetation policy document to make it consistent with the previously-approved North Dakota regulatory program. Throughout the “Standards For Evaluation Of Revegetation Success And Recommended Procedures For Pre- And Postmining Vegetation Assessments”, North Dakota has revised language to bring this document into compliance with regulatory language previously approved by OSM in the March 2, 2001, Federal Register (66 FR 13015). The section of the regulations that was approved, NDAC 69-05.2-22-07(4)(l), deals with evaluating revegetation success on prime farmlands and timeframes for demonstrating revegetation success.

Language throughout the document was, in general, revised to specify the last two “consecutive” growing seasons; to delete, “in the case of non-prime farmlands;” and “out of five consecutive years; to change eighth year to sixth year; and add “with one year being the last year” to read as follows:

In the cropland portion of the success standards document, language was added that specifies that a separate success standard must be calculated for prime farmland tracts unless a single yield standard has been approved as allowed by NDAC 69-05.2-22-07(4)(1), as follows:

Because these proposed rules contain language that is the same as or similar to the corresponding Federal regulations, we find that they are no less effective than the corresponding Federal regulations.

North Dakota has made several changes to this section of its guidelines. These include (1) revising the equations to estimate summer fallow or continuous cropping yields to include equations for Durum wheat as well as spring wheat and to include equations for Adams County and delete Ward County; (2) inclusion of an exemption from the requirement that control areas be established two years prior to demonstrating revegetation success may be granted if documentation is submitted to the Reclamation Division that demonstrates that the management of the control area for the previous two years has been equivalent in effect to that of the reclaimed area; (3) adding a note that allows them to develop climatic correction factors when there is no yield data for a productivity index equal to 100 available for the crop being grown on both the reclaimed and control areas; and (4) revising Cropland Table 1, Spring wheat productivity indexes based on the NRCS’ Soils Interpretive Guide published in January 2000.

Because the changes to this section could affect prime farmland, the NRCS has reviewed this proposed revision, as well as all the proposed changes to this document, and determined that the proposed changes are acceptable. The NRCS develops the productivity indices used by the State and is the expert in this area. The NRCS has submitted a letter of concurrence with the proposed changes to this document. Based on this letter and review of the Federal regulations at 30 CFR 816.116 and 823.15, we have determined that the proposed changes are consistent with and no less effective than the Federal regulations.

North Dakota proposes to revise the diversity and seasonality standards for native grasslands. In support of the proposed change, North Dakota states that the changes in the native grassland section simplify the diversity and seasonality standards. The revegetation document previously required that reclaimed native grassland have seasonality and diversity values meeting or exceeding standards derived from either range site reference areas or NRCS range site description data. The modified standards require that at least five native grass species be present on reclaimed native grasslands, but only four native grass species will have to be present in specified percentages. Of these four species, there must be at least two warm season species and one cool season species. The total relative composition of warm season species must be at least 15% and the native species must be at least 65% of the total species composition. The primary reasons for the revisions to the diversity and seasonality standards are (1) it simplifies the previous methodology that was overly complicated and involved and (2) with the mixing of topsoil materials during the mining and reclamation process, the overwhelming majority of the reclaimed native grassland tracts will be most similar to the “silty” range site.

The Federal regulations at 30 CFR 816.111(a)(1) require, in part, that the permittee shall establish on regraded areas and on all other disturbed areas except water areas and surface areas of roads that are approved as part of the postmining land use, a vegetative cover that is in accordance with the approved permit and reclamation plan and that is diverse. Further, 30 CFR 816.111(b)(2) requires that the reestablished plant species shall have the same seasonal characteristics of growth as the original vegetation. OSM has determined that the proposed diversity and seasonality standards comply with the intent of 30 CFR 816.111 and are no less effective than the Federal regulations.

North Dakota has revised its pastureland diversity standard to eliminate the numerical requirement. The revised standard focuses on the presence of the seeded pasture species and the appropriateness of any invading species. The Federal regulations at 30 CFR 816.111(a)(1) require, in part, that “the permittee shall establish on regraded areas and on all other disturbed areas except water areas and surface areas of roads that are approved as part of the postmining land use, a vegetative cover that is in accordance with the approved permit and reclamation plan and that is diverse, effective, and permanent.” No numerical standards are specified. OSM has determined that the revised diversity standard for pastureland meets the intent of the requirements of 30 CFR 816.111(a)(1) and is therefore no less effective.

North Dakota proposes several revisions to this section. The majority of the changes to this section are editorial in nature and provide clarification without affecting the currently approved stocking standards. The only significant change is to the tree and shrub diversity and seasonal variety standards. North Dakota proposes to require that at least 60% of the planted tree species should be present at 50% of the initial planting rate and at least 60% of the shrub species should each comprise at least 10% of the density standard. This means an increase in the percentage of tree species that must be present by 10% and creates a minimum number of stems that must be present for each of these tree and shrub species. To support this change, North Dakota states that the standards for diversity and seasonal variety on reclaimed woodlands have been updated by revising the percentages of species that need to be present in certain quantities in order to meet the requirements for final bond release. The revised percentages were based on data from undisturbed and reclaimed woodlands at the Glenharold Mine. These changes are no less effective than the Federal regulations at 30 CFR 816.111(a)(1) concerning establishment of vegetation that is diverse, effective and permanent.

North Dakota has also added a statement that tree and shrub stems occurring as a result of natural regeneration may be counted. This new statement is consistent with the State rules at NDAC 69-05.2-22-07(4)(f) and provides additional clarification. The proposed change is also consistent with section 515(b)(19) of SMCRA, which requires the operator to establish on the regraded areas, and all other lands affected, a diverse, effective, and permanent vegetative cover of the same seasonal variety native to the area of land to be affected and capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area; except, that introduced species may be used in the revegetation process where desirable and necessary to achieve the approved postmining land use plan. SMCRA specifically refers to vegetative cover capable of self-regeneration. North Dakota's allowance to include stems of trees and shrubs that are the result of regeneration in meeting vegetation success clearly complies with the intent of SMCRA and is no less effective than the Federal regulations.

North Dakota proposes to add the following language to the section on Shelterbelts: “The Commission will consider modifying the shelterbelt profile density standard if it is demonstrated that a natural disaster ( e.g. , disease epidemic, prolonged drought, etc. ) has affected the planting. Any replanting due to a natural disaster will be considered a normal husbandry practice which will not restart the liability period.”

The regulations at 30 CFR 816.116(a)(1) require that standards for success and statistically valid sampling techniques for measuring success shall be selected by the regulatory authority and be included in an approved regulatory program.

In support of the proposed new language, North Dakota has stated that without knowing the exact nature of the natural disaster and the effect that it may have upon the profile density standard, it is impossible to develop modified success standards. For example, if a disease has eliminated a certain species, it may be possible to either replant a resistant variety of the same species or to require the replanting of an entirely new species. However, if only part of the planting is lost, then it must be determined for each case what effect has occurred and the possible remedies. It is not possible to spell out in detail all possible scenarios under which some sort of adjustment may be necessary. The State also added language stating that any replanting due to a natural disaster will be considered a normal husbandry practice that will not restart the revegetation liability period.

As written, North Dakota's proposal would allow it to modify the shelterbelt success standards if a natural disaster has affected the planting. The Federal regulations require that success standards be included in the approved program. However, OSM concurs with North Dakota's assessment that it is not possible to anticipate all possible scenarios that could result in a change to the shelterbelt standard. Because of the limited acreage of shelterbelts and the goal of encouraging their establishment some flexibility is necessary. OSM also notes that North Dakota only proposes to allow a change in the profile density success standard, not the requirements for vigor, competition, erosion control, or species diversity, seasonal variety and regenerative capacity.

North Dakota also proposes to allow the replanting within shelterbelts affected by natural disasters as a normal husbandry practice. Review of the NRCS Conservation Practice Standards for Windbreak/Shelterbelt Establishment (Code 380) and Windbreak/Shelterbelt Renovation (Code 650) clearly indicates that replacement of dead trees and shrubs, regardless of how they died, should be continued until the barrier's function is restored. As such the State's proposal to allow replanting without restarting the liability period is clearly a normal husbandry practice under 30 CFR 816.116(c)(4).

OSM has determined that the proposed language is consistent with and no less effective than the requirements of 30 CFR 816.116.

North Dakota has revised this section to provide more flexibility in evaluating the effectiveness of the reestablished grassland for providing wildlife habitat. The actual cover standard is unaffected. The specific height requirement is eliminated in favor of a qualitative evaluation. This evaluation demonstrates compliance with the Federal requirement to establish an effective plant community.

North Dakota has also revised the diversity standard for grasslands that are used for Fish and Wildlife habitat. The revised standard requires that at least 60% of the total species composition be comprised of the seeded species. This evaluation demonstrates compliance with and is consistent with the Federal requirement to establish a diverse plant community.

Finally, North Dakota has revised its guidance on regenerative capacity to be a subjective evaluation rather than a quantitative evaluation. The Federal regulations require establishment of a plant community capable of self-regeneration. However, no quantitative evaluation is required. North Dakota's proposed changes are consistent with and no less effective than the Federal regulations requiring establishment of a plant community capable of regeneration.

The proposed changes to this section are consistent with and no less effective than the Federal regulations at 30 CFR 816.111 and 816.116(b)(3).

North Dakota has revised a portion of the Annual Crops Fish and Wildlife Habitat section to provide some additional flexibility. The changes eliminate the requirement that the cover from annual crop be approximately 10 inches in height. North Dakota proposes instead to focus on the presence of an adequate food source and adequate cover for the postmining land use. This ensures that the vegetative ground cover is adequate to achieve the postmining land use. The rule continues to require that erosion be adequately controlled to prevent contribution of suspended solids to runoff. North Dakota's proposed changes are consistent with and no less effective than the requirements of 30 CFR 816.111 and 816.116(b)(3)(iii), which require that vegetative ground cover shall not be less than that required to achieve the approved postmining land use.

North Dakota proposes revising the sampling design section. Several minor editorial changes have been made. However, the major revisions involve changes to the method for determining adequate sample sizes for two populations and the addition of a method for determining adequate sample sizes for stratified sampling. The change to the two-sample sample adequacy equation involves simplifying the calculation of the variance and mean used in the currently approved formula by simply using the data from the area, either reclaimed or reference, that has the highest variance and removing the complexity in allocating the number of samples required between the reclaimed area and the reference area.

The State has also added a method for calculating sample adequacy for stratified sampling. The proposed formula allocates the minimum sample size for each stratum based on the total number of samples necessary to adequately sample the entire area, the area of each stratum, and the variance associated with the stratum.

The regulations at 30 CFR 816.116(a)(2) require that standards for success shall include criteria representative of unmined lands in the area being reclaimed to evaluate the appropriate vegetation parameters of ground cover, production, or stocking. Ground cover, production, or stocking shall be considered equal to the approved success standard when they are not less than 90 percent of the success standard. The sampling techniques for measuring success shall use a 90-percent statistical confidence interval ( i.e. , one-sided test with a 0.10 alpha error).

OSM has reviewed the proposed changes and additions and determined that these proposed methods are recognized approaches for determining adequate sample sizes. Use of either of these formulas, as appropriate, ensures that the sampling techniques for measuring revegetation success use a 90-percent statistical confidence interval. The proposed revisions are consistent with and no less effective than the Federal regulations.

North Dakota has made numerous revisions throughout this section. In general, many of these proposed revisions are for clarification and do not substantively revise this section. One significant change is that North Dakota proposes to allow the use of combines equipped with the global positioning system yield monitoring systems. The document provides specific guidance on how these systems can be used. This includes requiring calibration of the yield monitor and submission of that information along with test weight, moisture content, and dockage of the crop. If the yield monitor calibration does not correct yield values for test weight and moisture content, these corrections must also be made when reporting yield data used to show reclamation success. OSM has reviewed this proposed method and determined that it is a statistically valid sampling technique. The State has also established minimum sample sizes for evaluating hay production using both whole field and partial field harvest. This is consistent with the Federal regulations.

OSM has determined that the proposed changes to the measurements section of the document are consistent with and no less effective than 30 CFR 816.116(a)(1) and (2).

The “Statistical Analyses” section has been rewritten to standardize the symbols used in the equations. Also, examples have been added on how to use the equations. OSM has reviewed the proposed section, which also replaces existing Appendix C, Statistical Formulae and t Distribution, and determined that all the proposed statistical equations are widely used, correctly and appropriately.

The regulations at 30 CFR 816.116(a)(1) require that standards for success and statistically valid sampling techniques for measuring success shall be selected by the regulatory authority and included in an approved regulatory program. The regulations at 30 CFR 816.116(a)(2) require that standards for success shall include criteria representative of unmined lands in the area being reclaimed to evaluate the appropriate vegetation parameters of ground cover, production, or stocking. Ground cover, production, or stocking shall be considered equal to the approved success standard when they are not less than 90 percent of the success standard. The sampling techniques for measuring success shall use a 90-percent statistical confidence interval ( i.e. , one-sided test with a 0.10 alpha error). OSM has determined that the proposed changes to this section are consistent with and no less effective than the Federal regulations at 30 CFR 816.116(a)(1) and (2).

We asked for public comments on the amendment in the February 11, 2003, Federal Register (68, FR 6842* * *Administrative Record No. ND-GG-05), but did not receive any.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the North Dakota program (Administrative Record No. ND-GG-03). No comments were received.

Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get 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. ).

None of the revisions that North Dakota proposed to make in this amendment pertains to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On December 9, 2002, we requested comments on North Dakota's amendment (Administrative Record No. ND-GG-03). The SHPO responded on December 16, 2002, that he had no comments (Administrative Record No. ND-GG-04). The ACHP did not respond.

Based on the above findings, we approve North Dakota's November 21, 2002, amendment, as discussed in: finding A, Minor Revisions to North Dakota's Revegetation Document; finding B, Revisions to North Dakota's Policy Document for Consistency with the Previously-Approved North Dakota Regulatory Program; finding C.1, Section II-C concerning cropland; finding C.2, Section II-D, concerning native grassland; finding C.3, Section II-E concerning tame pastureland; finding C.4, Section II-F concerning woodland success standards; finding C.5, Section II-G concerning shelterbelts; finding C.6, Section II-H concerning fish and wildlife habitat; finding C.7, Section III-C concerning sampling design; finding C.8, Section III-D concerning methods for measuring productivity, cover, and density; and finding C.9, Section III-E concerning statistical analysis.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 934, which codify decisions concerning the North Dakota 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 demonstrates 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.

Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, 30 CFR 732.17 requires that any change of an approved State program be submitted to OSM for review as a program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any changes to approved State programs that are not approved by OSM. In the oversight of the North Dakota program, we will recognize only the statutes, regulations and other materials we have approved, together with any consistent implementing policies, directives and other materials. We will require North Dakota to enforce only approved provisions.

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

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866 (Regulatory Planning and Review).

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, or on the distribution of power and responsibilities between the Federal government and Indian Tribes. The rule does not involve or affect Indian Tribes in any way.

On May 18, 2001, the President issued Executive Order 13211 that 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 fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Pennsylvania program on July 30, 1982. You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and conditions of approval in the July 30, 1982, Federal Register (47 FR 33050). You can also find later actions concerning Pennsylvania's program and program amendments at 30 CFR 938.11, 938.12, 938.15 and 938.16.

By letter dated November 22, 1999, Pennsylvania sent us an amendment to its program (Administrative Record No. PA 861.03) under SMCRA (30 U.S.C. 1201 et seq. ). Pennsylvania sent the amendment to include changes made at its own initiative. The provisions of Title 25 of the Pennsylvania Code (Pa. Code) that Pennsylvania proposed to revise were: 86.1 Definitions; 86.101 Definition of terms; 86.102 Areas where mining is prohibited or limited; 86.103 Procedures; 86.121 Areas designated unsuitable for mining; 86.123 Procedures: petitions; 86.124 Initial processing, record keeping and notification requirements; 86.125 Hearing requirements; 86.126 Decision; 86.127 Data base inventory system requirements; 86.128 Public information; 86.129 Coal exploration; and 86.130 Areas unsuitable for mining.

We announced receipt of the proposed amendment in the December 27, 1999, Federal Register (64 FR 72297). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on January 26, 2000. We received comments from three Federal agencies and one State agency. The Federal agencies were the U.S. Department of Labor (Mine Safety and Health Administration), New Stanton and Wilkes-Barre offices and the U.S. Environmental Protection Agency (EPA), Region III. The State agency was the Pennsylvania Historical and Museum Commission.

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

Pennsylvania proposed minor changes to the following previously approved rules.

Pennsylvania is adding the metric measurement equivalent to the standard measurements found at sections 86.101(8), (8)(ii), (10), (11), and (12); 86.103(c) and throughout various subsections of 86.130(b). We find that adding the metric equivalent will not render these regulations inconsistent with the Federal regulations.

Pennsylvania is deleting the references to the Bureau of Mining and Reclamation at sections 86.123(c) and 86.124(d) and replacing that phrase with the word “Department” which is a reference to the Pennsylvania Department of Environmental Protection (PADEP). These changes are not inconsistent with the Federal rules because it clarifies the role of PADEP, which is the State regulatory authority that implements the coal mining program in Pennsylvania. We are approving these changes.

Pennsylvania proposed revisions to the following rules containing language that is the same or similar to the corresponding sections of the Federal regulations.

Because these proposed rules contain language that is the same as or similar to the corresponding Federal regulations, we find that they are no less effective than the corresponding Federal regulations.

Pennsylvania is also modifying the following definitions found at 25 Pa. Code 86.101 by deleting some existing language and adding language: fragile lands, historic lands, public building, public park and renewable resource lands and deleting existing 86.121(a) and (b). Since the added language to these definitions or the new sections to 86.121(1) through (3) are substantively identical to the Federal rules, we find that the deletions do not render the Pennsylvania program inconsistent with SMCRA or the Federal regulations.

25 Pa. Code 86.1 Definition of Valid Existing Rights . Pennsylvania is deleting its existing definition of “Valid Existing Rights” which stated:

Pennsylvania is proposing the following language as its new definition: “Rights which exist under the definition of “valid existing rights” in 30 CFR Section 761.5 (relating to areas unsuitable for mining).” Pennsylvania stated in the Pennsylvania Bulletin (Pa. Bull.) that this “change will conform the Commonwealth's regulations to the [Pennsylvania] statutes [52 P.S. 1396.4e, 52 P.S. 30.56a, and 35 P.S. 691.315] and will make it unnecessary for the Commonwealth to change its definition if the Federal definition is changed.” 29 Pa. Bull. 5289, 5292 (October 9, 1999). Accordingly, we find that since Pennsylvania is effectively incorporating OSM's definition of valid existing rights and will change its implementation of its definition if the Federal definition should change, the Pennsylvania definition is no less effective than the Federal regulation at 30 CFR 761.5.

25 Pa. Code 86.124(a)(2). Pennsylvania amended this section by adding the sentence, “A frivolous petition is one in which the allegations of harm lack serious merit.” This language is identical to the language describing a frivolous petition in the Federal regulations at 30 CFR 764.15(a)(3). Because the language is the same as in the Federal regulations, we find it no less effective and we are approving it.

25 Pa. Code 86.129. This section provides the requirements for conducting coal exploration on areas designated as unsuitable for surface mining operations. The section will allow coal exploration on areas designated as unsuitable for surface mining operations if the following provisions of subsections (b)(1) and (2) are met:

In amending this section, Pennsylvania dropped a requirement in subsection (b)(2) that it would not grant approval for coal exploration unless the person seeking the approval has described the nature and extent of the proposed operation, and has described in detail the measures to be employed to prevent adverse effects. Even though Pennsylvania dropped this requirement, 25 Pa. Code 86.129 remains no less effective than the corresponding Federal regulation at 30 CFR 762.15 because of its reference to 25 Pa. Code Subchapter E. Under Subchapter E, 25 Pa. Code 86.133(f) provides that:

Taken together, the provisions of 25 Pa. Code 86.133(f) and 25 Pa. Code 86.129 provide the same level of protection as the Federal regulations at 30 CFR 762.15 regarding coal exploration on lands unsuitable for surface coal mining. The Federal regulations require approval under the State's equivalent to the Federal coal exploration regulations at 30 CFR part 772 to ensure that the exploration does not interfere with any value for which the area has been designated unsuitable for surface coal mining. We find it no less effective than the Federal rule and we are approving the change to this section.

25 Pa. Code 86.101 Definitions. The definition of “surface mining operations” has been modified by deleting the following phrase at the end of the definition: “* * *and activities involved in or related to underground coal mining which are conducted on the surface of the land, produce changes in the land surface, or disturbs the surface, air or water resources of the area.” The definition now reads:

This definition only applies to subchapter D of 25 Pa. Code Chapter 86 and was revised to eliminate the inconsistency between Pennsylvania's definition and our interpretative rulemaking on activities applicable to section 522(e) of SMCRA. 29 Pa. Bull. 5289, 5290 (October 9, 1999). Our interpretative rule found at 30 CFR 761.200(a) states “[s]ubsidence due to underground coal mining is not included in the definition of surface coal mining operations under section 701(28) of the Act and 700.5 of this chapter and therefore is not prohibited in areas protected under section 522(e) of the Act.” In the preamble to the interpretative rule we noted that “we interpret the definition of “surface coal mining operations” at SMCRA section 701(28)(A) and in the analogous portion of the existing rules at 30 CFR 700.5 not to include subsidence, and to include only: (1) Activities on the surface of lands in connection with a surface coal mine; and (2) Activities subject to section 516, conducted on the surface of lands in connection with surface operations and surface impacts incident to an underground coal mine, the products of which enter commerce or the operations of which directly or indirectly affect interstate commerce.” (64 FR 70838, 70844 (12/17/99)).

Even though Pennsylvania's revised definition of surface mining operations removes the inclusion of activities involved in or related to underground mining it still includes surface activity connected with underground mining. In the Pennsylvania Bulletin, Pennsylvania states “[i]n the definition of “surface mining operations,” the reference to activities related to underground coal mining that affect the land surface has been deleted to clarify that surface mining operations do not include any surface effects of underground mining resulting from activities that were conducted beneath the land surface.” 29 Pa. Bull. 5292. Pennsylvania maintains that its rulemaking “is consistent with Federal requirements and that it addresses the difference between the physical characteristics of mining activities conducted on the surface as opposed to underground.” Id. Accordingly, we are approving the deletion of this language with the understanding that Pennsylvania will implement the definition of “surface mining operations” in the same manner as contemplated by 30 CFR 761.200(a) and find the deletion not inconsistent with the Federal regulations.

25 Pa. Code 86.102(11). This section provides that surface mining operations are not permitted within 100 feet of a cemetery unless there is valid existing rights. In addition to this existing restriction, Pennsylvania is adding that cemeteries may be relocated under 9 P.S. 41-52. The Federal counterpart at 30 CFR 761.11(g), also states that mining cannot occur within 100 feet of a cemetery unless there is valid existing rights and unless the cemetery is relocated in accordance with all applicable laws and regulations. Pennsylvania's added language is consistent with the Federal regulation because it allows for the relocation of a cemetery and we are approving the change.

25 Pa. Code 86.124(f) Procedures: Hearing requirements. This section provides that the Department will prepare a recommendation on each complete petition received under this section and submit it to the Environmental Quality Board (EQB) within 12 months of receipt of the complete petition. This section could be viewed as less effective than the Federal regulations at 30 CFR 764.19(b) which require that, “a final written decision shall be issued by the regulatory authority, including a statement of the reasons, within 60 days of completion of the public hearing, or, if no public hearing is held, then within 12 months after receipt of the complete petition. However, the enabling legislation for this section of the Pennsylvania regulations is located within Pennsylvania's SMCRA, at 52 P.S. section 1396.4e(f) which states, “Within ten (10) months after receipt of the petition, the Department shall hold a public hearing * * * within sixty (60) days after such hearing, the Department shall issue and furnish the petitioners and any other party to the hearing, a written decision regarding the petition and the reasons therefore.” This language has been previously determined to be consistent with, and no less effective than, SMCRA and the Federal regulations. With the Pennsylvania statutory language consistent with Federal law and regulations, we are not approving the revision in regulations to the extent that it could be interpreted as inconsistent with the enabling Pennsylvania statute and less stringent than SMCRA and the implementing regulations. We expect that Pennsylvania will continue to process unsuitability petitions in a manner consistent with State law.

25 Pa. Code 86.125 Procedures: Hearing requirements. Pennsylvania deleted the requirement at subsection (b) for a verbatim transcript of the petition hearing and moved the requirement to subsection (d). These changes are consistent with the Federal rule at 30 CFR 764.17(a) which requires a record of the petition hearing to be made and preserved according to State law.

Pennsylvania revised subsection (e) [renumbered from (b) to (e)] to provide that PADEP will give notice of the hearing by first class mail and also revised subsection (e)(3) to indicate the notice is to be sent to persons known to PADEP to have an ownership or other interest in the area covered by the petition. This is no less effective than the Federal regulations at 30 CFR 764.17(b)(2) which requires notice of the hearing to property owners by first class mail. Pennsylvania deleted the first class mail notification requirement of (e)(4) to the petitioner and intervenors and added subsection (f), which requires that notice of the hearing by certified mail shall be given to the petitioner and intervenors. These changes are no less effective than the Federal rules.

At subsections (g) and (h), Pennsylvania is changing some of the hearing responsibilities from the EQB to PADEP. Pennsylvania is also making editorial changes at subsections (i) and (k). All of these changes do not render the Pennsylvania regulations inconsistent with the Federal regulations and we approving the changes.

Subsection (j) was revised to read as follows:

For a full discussion of our finding on the time frames for providing a written notice to petitioners and intervenors, see the discussion under 25 Pa. Code 86.124(f) above. Section 86.125(j) is not approved to the same extent that 25 Pa. Code 86.124(f) is not approved.

25 Pa. Code 86.126 Procedures: Decision. Subsections (b) and (b)(1) were revised and subsection (b)(2) was added. These sections now read:

In 25 Pa. Code 86.126(b), Pennsylvania deleted the following provision: “A final written decision in the form of a regulation will be issued by the EQB within 60 days following the public hearing, including a statement of reasons for the decision.” We are approving this deletion because of the finding we made with regard to issuance of final decisions in 25 Pa. Code 86.124(f) above. As we noted in 25 Pa. Code 86.124(f), we expect that Pennsylvania will continue to process unsuitability petitions in a manner consistent with State law.

The changes to these subsections specify who will be sent the decision, the appropriate documents where EQB's decisions are to be published and under what authority. The Federal rule at 764.19(b) requires that the final written decision shall be sent by certified mail to the petitioner, intervenors and by regular mail to all other persons involved in the proceeding. OSM was concerned that Pennsylvania's regulation failed to provide notification of the decision by regular mail to all other persons involved in the proceeding. In a letter dated February 13, 2002 (Administrative Record No. PA 861.10), Pennsylvania noted that the Pennsylvania Regulatory Review Act (71 P.S. 745.1 et seq. required notification to all interested parties. See, 71 P.S. 745.5a. Accordingly, we find that the inclusion of this information does not make Pennsylvania's program inconsistent with the Federal regulations at 30 CFR 764.19(b) and we are approving it.

25 Pa. Code 86.102(4). Subsection (4) was modified by inserting the phrase, “the Department of Conservation and Natural Resources and” before the words, “the Department.” The section now reads: “On lands within the State park system. Surface mining activities may be permitted if the Department of Conservation and Natural Resources and the Department find that significant land and water conservation benefits will result when remining of previously mined land is proposed.”

The Department of Conservation and Natural Resources is now included in the decision on whether mining will be prohibited on certain State lands. There is no Federal counterpart to this subsection. We find that this addition does not make this rule inconsistent with the Federal regulations.

25 Pa. Code 86.102(5) was modified by inserting the, “ * * * Department of Conservation and Natural Resources and the * * *” before the word, “Department.” This section now reads:

The Department of Conservation and Natural Resources is now included in the decision on whether mining will be prohibited on certain State lands. There is no Federal counterpart to this subsection. We find that this addition does not make this rule inconsistent with the Federal regulations.

25 Pa. Code 86.130 Areas designated as unsuitable for mining. Pennsylvania corrected two regulatory references in this section by adding the description of that reference.

Section 86.130 is the section where Pennsylvania publishes the results of EQB's decisions designating areas as unsuitable for all or certain types of surface mining operations. There are no comparable provisions in the Federal regulations requiring publication of the designations. Publication will insure that the designations are available for all interested persons to review. As a result, we find that this section is not inconsistent with the Federal regulations and we are approving it.

We asked for public comments on the amendment (Administrative Record No. PA 861.03), but we did not receive any.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Pennsylvania program (Administrative Record No. PA 861.04). The Department of Labor, Mine Safety and Health Administration (MSHA), New Stanton Office, provided comments by letter dated December 17, 1999 (Administrative Record No. PA 861.07). The comments included one substantive comment that requested changing the reference in the Federal regulations to the definition of “Valid Existing Rights” (VER) to actually insert the language redefining VER.

We have considered this comment and believe that requiring Pennsylvania to delete the reference to 30 CFR and inserting the language does not have any effect on the proposed revision to the Pennsylvania program. Therefore, we will not request Pennsylvania to change this reference.

By letter dated December 6, 1999, (Administrative Record No. PA 861.05) MSHA's Wilkes-Barre office, stated that nothing conflicted with existing MSHA regulations.

Under 30 CFR 732.17(h)(11)(i) we requested comments on the amendment from EPA (Administrative Record No. PA 861.04). EPA responded on December 15, 1999, that the amendments appeared to comply with the Clean Water Act (Administrative Record No. PA 861.06).

PHMC submitted comments by letter dated February 26, 1999 (Administrative Record No. PA 861.01) with a follow up letter dated December 7, 1999 (Administrative Record No. PA 861.09) resubmitting their earlier comments. The comments submitted include:

1. The proposed change in the definition of a completed application at 25 Pa. Code 86.1 weakens Pennsylvania's requirements by only requiring an applicant for a permit application to complete forms addressing each requirement of the application instead of “demonstrating compliance with applicable statutes and regulations.”

We have determined that the comment addresses an issue that is not in this program amendment. Since it is outside the scope of the amendment, we are not required to address this comment.

2. The revision to the definition of valid existing rights in 25 Pa. Code 86.1 deletes nearly all descriptions of what are valid rights for people and agencies and replaces them with a line indicating that valid existing rights are rights which exist under the definition of valid existing rights in 30 CFR 761.5. PHMC wants to retain the old definition, or repeat verbatim, the Federal definition so the rights of the people or agencies are clear.

PHMC is correct in noting the change. However, OSM's standard for review of amendments to State program regulations are whether the regulations are no less effective than the corresponding Federal regulations in meeting the requirements of SMCRA ( see 30 CFR 730.5). Pennsylvania's inclusion of the reference to the Federal regulations in the definition of valid existing rights makes it no less effective than the Federal regulations because it now includes all rights as protected by Federal regulation.

3. The change to the definition of fragile lands in 25 Pa. Code 86.101 adds the stipulation that the damage to these properties be significant. This is inconsistent with Federal Section 106 statutes, which applies when there is an impact to cultural resources. Also the deletion of language that provides protection to buffer areas surrounding fragile lands is unacceptable.

As with Pennsylvania's change to the definition of valid existing rights, the change in definition to fragile lands is based on the Federal definition of fragile lands at 30 CFR 762.5. The Federal definition also describes areas that could be significantly damaged by surface coal mining operations. We have found that Pennsylvania's definition of fragile lands is no less effective than the Federal definition. As for the deletion of the buffer zone provisions of Pennsylvania's definition, there is no such similar provision in the Federal regulations. As a result, we cannot require Pennsylvania to retain the buffer zone protections because its deletion will not make Pennsylvania's program less effective than Federal regulations.

4. The revision to the definition of historic lands should include additional examples of what constitutes historic lands to include “historic or cultural districts and paleontological sites” at 25 Pa. Code 86.101.

We have considered this comment and find that the definition is substantively identical to, and no less effective than, the Federal definition of “historic lands” found at 30 CFR 762.5.

5. The proposed revision to the definition of surface mining operation at 25 Pa. Code 86.101 deletes references to surface impacts by underground mining, which is not consistent with SMCRA or the Federal regulations.

As stated in our findings, we promulgated a rule on December 17, 1999, at 30 CFR 761.200(a), concerning our interpretation of the definition of surface coal mining operations. Please refer to that finding for further discussion of the interpretative rule and its application. As previously discussed, we are approving the deletion of the language with the understanding that Pennsylvania will implement the definition of “surface mining operations” in the same manner as contemplated by 30 CFR 761.200(a).

6. The deletion of the words “on or eligible for inclusion” to the National Register of Historic Places at 25 Pa. Code 86.102(3), so that only sites included on the National Register are protected from mining, conflicts with Section 106 of the National Historic Preservation Act and 36 CFR 800.2.

The Federal rule at 30 CFR 761.11(c) does not prohibit mining that may affect places eligible for listing on the National Register of Historic Places. The Federal rule only prohibits mining that will affect places listed on the National Register of Historic Places. Therefore, we find the proposed revision consistent with Federal law.

7. Revising the regulations at 25 Pa. Code 86.103(e) that require the Department to notify Federal, State, or Local Agencies with jurisdiction over a publicly owned park or place on the National Register of Historic Places when it is determined that the adverse effects will adversely affect the park or place.

The revision by Pennsylvania is to delete “may” and insert “will” with respect to adversely affect. The Federal regulation at 30 CFR 761.11(d) does not require procedures for joint approval when the publicly owned park or the historic place may be adversely affected by coal mining operations. The Federal rules only require such approval when it will affect such properties. Accordingly, as we have determined in the findings, the proposed revision is no less effective than 30 CFR 761.11(d).

The PHMC also wants the old language of “historic” retained in this section. However, the deletion of the word “historic” is consistent with the Federal language at 30 CFR 761.11(d). Additionally, Pennsylvania has retained the reference to the National Register of Historic Places.

8. The changes to 25 Pa. Code 86.121 regarding criteria and procedures for designating areas unsuitable for mining does not adequately protect cultural resources because of its emphasis from areas designated as unsuitable for surface mining operations to areas exempt from designation as unsuitable for mining.

Pennsylvania's changes to 25 Pa. Code 86.121 make that section mean the same as the corresponding Federal regulation at 30 CFR 762.13. Because the meaning of that section is the same as the Federal regulation, we have found it to be no less effective than the Federal regulation and we approved it. We did not find that Pennsylvania's change provides less protection to cultural resources.

9. The revisions at 25 Pa. 86.123(c)(5) that give the right to petition only to people who can demonstrate an “injury in fact” was objected to because the PHMC believes such a test makes it so that only individuals who own property can petition to have land designated as unsuitable for mining.

Pennsylvania's “injury in fact” test is substantively identical to the Federal “injury in fact” test at 30 CFR 764.13(a). In its submission, Pennsylvania indicated that the purpose for adding this language is to make the section consistent with the Federal rules. We have determined that the proposed revision is one of the criteria for the right to petition for lands unsuitable. Therefore, we are finding that this proposed change is no less effective than the Federal regulations.

10. The PHMC objects to all the changes where the EQB was replaced by PADEP. PHMC objects to making PADEP responsible for hearing lands unsuitable petitions as would be required in 25 Pa. Code 86.124(c) and 86.125(a) instead of EQB as formerly required.

The Federal regulations at 30 CFR 764.17 require the regulatory authority to conduct hearings. In Pennsylvania, the regulatory authority is PADEP. As a result, Pennsylvania's change does not make it less effective than the corresponding Federal regulations.

11. The PHMC objects to coal exploration within areas designated unsuitable for mining at 25 Pa. Code 86.129(b) and believes it would directly impact cultural resources. The Federal regulations at 30 CFR 762.15 allow coal exploration operations within areas designated unsuitable for mining if such operations are conducted in accordance with the regulatory program. Pennsylvania's regulations at 25 Pa. Code 86.129 and 86.133 require that the exploration will be conducted to preserve and protect the applicable values and uses of the area. Therefore, there will be no impact to such cultural resources. We find that the proposed revisions are no less effective than 30 CFR 762.15.

Based on the above findings, we approve, with the exceptions noted below, the amendment Pennsylvania sent us on November 22, 1999, that was clarified by letter dated February 13, 2002.

We do not approve 25 Pa. Code 86.124(f) and 25 Pa. Code 86.125(j) to the extent that these sections would allow Pennsylvania more time to complete a final written decision on a lands unsuitable for surface mining activities petition than is allowed by the provisions of the Federal regulations at 30 CFR 764.19(b).

To implement this decision, we are amending the Federal regulations at 30 CFR part 938, which codify decisions concerning the Pennsylvania 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.

Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an approved State program be submitted to OSM for review as a program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any changes to approved State programs that are not approved by OSM. In the oversight of the Pennsylvania program, we will recognize only the statutes, regulations, and other materials we have approved, together with any consistent implementing policies, directives, and other materials. We will require Pennsylvania to enforce only approved provisions.

In this rule, the State is adopting valid existing rights standards that are similar to the standards in the Federal definition at 30 CFR 761.5. Therefore, these provisions have the same takings implications as the Federal valid existing rights rule. The takings implications assessment for the Federal valid existing rights rule appears in Part XXIX.E of the preamble to that rule. See 64 FR 70766, 70822-27, December 17, 1999. The provisions in the rule based on other counterpart Federal regulations do not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.

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

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

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

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. Pennsylvania does not regulate any Native Tribal lands.

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 data and assumptions for the counterpart Federal regulations.

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

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the Pennsylvania submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this 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 Texas program effective February 16, 1980. You can find background information on the Texas program, including the Secretary's findings, the disposition of comments, and the conditions of approval, in the February 27, 1980, Federal Register (45 FR 12998). You can find later actions on the Texas program at 30 CFR 943.10, 943.15, and 943.16.

By letter dated February 12, 2003 (Administrative Record No. TX-654), Texas sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Texas sent the amendment at its own initiative. Texas proposed to add Texas Administrative Code (TAC) 1.130 to Title 16, Subchapter G, of its General Rules of Practice and Procedure. This new rule contains the procedures for conducting all or part of a prehearing conference or hearing by telephone.

We announced receipt of the proposed amendment in the April 10, 2003, Federal Register (69 FR 17566). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on May 12, 2003. We did not receive any public comments.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment as described below.

As shown below, the Commission's rule at 16 TAC 1.130 outlines the method to request a telephonic proceeding, how the proceeding will be conducted, the establishment of the record in such a proceeding, and the grounds for a default judgment or a dismissal.

There are no Federal counterparts to the Commission's proposal to conduct all or part of a prehearing conference or administrative hearing by telephone. Neither SMCRA at section 525 nor the Federal regulations at 30 CFR 775.11 and 43 CFR part 4 address telephonic proceedings. However, nothing in the Commission's proposed rule supersedes or replaces its previously approved general rules of practice and procedures for hearings. The Commission is merely offering another method by which parties may appear at prehearing conferences or hearings. The proposed procedures for telephonic proceedings will provide due process for all parties involved in a prehearing conference or hearing. As stated in 16 TAC 1.130(c), the hearings examiner must ensure that the telephonic hearing will provide due process and will be fair. Black's Law Dictionary, Seventh Edition, defines due process as the conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case. Also, as provided in 16 TAC 1.130(f), all substantive and procedural rights apply to telephonic proceedings. While there are no Federal counterpart provisions concerning telephonic proceedings, we find that the provisions of the proposed rule at 16 TAC 1.130 are not inconsistent with the Federal general rules relating to procedure and practice for administrative hearings found at 30 CFR 775.11(b)(3), 43 CFR 4.20-4.24, and 43 CFR 4.1104-4.1115. Therefore, we are approving them.

We asked for public comments on the amendment, but did not receive any.

On February 26, 2003, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Texas program (Administrative Record No. TX-654.01). We did not receive any comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Texas proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment.

On February 26, 2003, under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. TX-654.01). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On February 26, 2003, we requested comments on Texas' amendment (Administrative Record No. TX-654.01), but neither responded to our request.

Based on the above findings, we approve the amendment Texas sent us on February 12, 2003.

To implement this decision, we are amending the Federal regulations at 30 CFR part 943, which codify decisions concerning the Texas 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 rule 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 fact that the telephonic hearing provisions proposed by Texas are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry.

This rule is exempted from review by the Office of Management and Budget (OMB) 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. 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 determination is based on the fact that the Texas program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Texas program has no effect on Federally-recognized Indian tribes.

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.

SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

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

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This determination is based upon the fact that the telephonic hearing provisions proposed by Texas are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry.

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 governmental agencies or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the telephonic hearing provisions proposed by Texas are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the telephonic hearing provisions proposed by Texas are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry.

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 March 18, 2003, the West Virginia Department of Environmental Protection (WVDEP) sent us a proposed amendment to its program (Administrative Record Number WV-1352) under SMCRA (30 U.S.C. 1201 et seq. ). West Virginia submitted the amendment in response to the required program amendments at 30 CFR 948.16(nnn), (ooo), and (qqqq) and made other changes at its own initiative.

We announced receipt of the proposed amendment in the April 14, 2003, Federal Register (68 FR 17896). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment (Administrative Record Number WV-1358). We did not hold a public hearing or meeting because no one requested one. The public comment period ended on May 14, 2003. We received comments from two Federal agencies.

Following are the findings we made pursuant to SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17 concerning the proposed amendment to the West Virginia program. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes and are approved here without discussion.

The program amendment consists of changes to the W. Va. Code as contained in House Bills 2881 and 2882, and changes to the State's Coal Related Dam Safety Rule at CSR 38-4 and to the Surface Mining Reclamation Regulations at CSR 38-2 as contained in House Bill 2603. The amendment concerns a variety of topics including bond release, dam safety, permit application requirements, drainage and sediment control systems, fish and wildlife considerations, revegetation, performance standards, inspection and enforcement, coal refuse, and remining operations. The amendment is intended to improve the effectiveness of the West Virginia program and to render the West Virginia program no less effective than the Federal regulations.

In order to expedite our review of the provisions that concern the recommendations of West Virginia's 2002 Flood Study (Governor's Executive Order No. 16-01), we have separated the amendment relating to CSR 38-4 Coal Related Dam Safety Rule and will address those proposed amendments in a separate Federal Register notice at a later date, except for CSR 38-4-25.14 which is addressed below at Finding 31. In addition, the proposed amendment to CSR 38-2-3.31.a is similar to language that we are currently considering under a separate program amendment. Therefore, we are removing the proposed amendment to CSR 38-2-3.31.a from the current amendment, and we will address the proposed amendment to CSR 38-2-3.31.a in a separate Federal Register notice at a later date. Our findings relating to the W. Va. Code and the remainder of the amendments to West Virginia's Surface Mining Reclamation Regulations are detailed below.

1. As described in Committee Substitute for House Bill 2881, W. Va. Code 22-3-23(a)-(h), concerning release of bond or deposits, are amended by changing the term “director” to “secretary” in numerous locations, and by changing the term “division” to “department” in one location. We find that these amendments accurately reflect the current organization of the WVDEP and do not render the West Virginia program less stringent than SMCRA nor less effective than the Federal regulations and can be approved.

2. As described in Committee Substitute for House Bill 2881, W. Va. Code 22-3-23(c)(1)(C), concerning bond release for all operations that are being returned to approximate original contour (AOC), is amended by adding the following language to the end of the last sentence: “where expressly authorized by legislative rule promulgated pursuant to section three, article one of this chapter.” As amended, the sentence reads as follows:

On July 11, 1985, OSM disapproved and on August 29, 1985, OSM preempted and superseded the language of the proviso that is being amended here (50 FR 28316, 28319 and 50 FR 35082, 35083, respectively). At that time, the proviso was located at W. Va. Code 22A-3-23(c)(3). OSM took that action because under certain circumstances, the proviso would permit final bond release prior to attainment of revegetation standards in accordance with the approved reclamation plan. OSM took that action after determining that the provision was inconsistent with section 519(c)(3) of SMCRA, based on the reasons cited in Finding 6 of the July 11, 1985, Federal Register notice.

The language that is being added to the proviso has the effect of limiting the application of the proviso to only those regulations where such alternative water quality standards are specifically authorized. This amendment renders the language of this proviso inoffensive to section 519(c)(3) of SMCRA, because the circumstances of its applicability will be dictated by specific regulations that were promulgated in accordance with the Clean Water Act. Therefore, the specific implementing regulations authorized by this proviso must be evaluated relative to the requirements of section 519(c)(3) of SMCRA. Indeed, the State has amended its bond release requirements that apply only to remining operations at CSR 38-2-24.4, and that amendment directly relates to this proviso. See Finding 35, below for our finding on the amendment to CSR 38-2-24.4. We find that, as amended, and for the reasons further explained in Finding 35, below, the proviso at W. Va. Code 22-3-23(c)(1)(C) as quoted above is not inconsistent with SMCRA section 519(c)(3) and can be approved.

3. As described in Committee Substitute for House Bill 2881, W. Va. Code 22-3-23(c)(2)(C), concerning bond release for operations with an approved variance from AOC, is amended by adding the following language to the end of the last sentence: “where expressly authorized by legislative rule promulgated pursuant to section three, article one of this chapter.” This amendment is intended to satisfy the required program amendment codified at 30 CFR 948.16(qqqq). As amended, the sentence reads as follows:

For the same reasons discussed directly above at Finding 2, we find that the amended proviso at W. Va. Code 22-3-23(c)(2)(C) is not inconsistent with SMCRA section 519(c)(3) and can be approved. Furthermore, we also find that this amendment satisfies the required program amendment codified at 30 CFR 948.16(qqqq), which can be removed.

W. Va. Code 22-3-23(c)(2)(C) is also amended by deleting the reference to subdivision 3 and continuing to require compliance with the bond release scheduling requirements of subdivisions 1 and 2 of this subsection. This change corrects a typographical error, in that there is no subdivision 3 at subsection 22-3-23(c). We find, therefore, that this amendment does not render the provision less stringent than SMCRA nor less effective than the Federal regulations and can be approved.

4. As described in Committee Substitute for House Bill 2881, W. Va. Code 22B-1-7, concerning appeals to boards, is amended by changing the term “director” to “secretary” in several locations. We find that these amendments accurately reflect the current organization of the WVDEP and do not render the West Virginia program less stringent than SMCRA nor less effective than the Federal regulations and can be approved.

5. As described in House Bill 2882, W. Va. Code 22B-1-7(d), concerning appeals to boards, is amended by adding a proviso that unjust hardship shall not be grounds for granting a stay or suspension of an order, permit or official action for an order issued pursuant to W. Va. Code 22-3. This amendment is intended to satisfy the required program amendment codified at 30 CFR 948.16(nnn), which provides that West Virginia must revise Section 22B-1-7(d) to remove unjust hardship as a criterion to support the granting of temporary relief from an order or other decision issued under Chapter 22, Article 3 of the West Virginia Code. As discussed in the Federal Register on March 4, 2003, we reinstated this required amendment in order to comply with U.S. District Court Judge Haden's ruling of January 9, 2003 (68 FR 10178).

We find that as amended, section 22B-1-7(d) satisfies the required program amendment codified at 30 CFR 948.16(nnn) that unjust hardship shall not be grounds for granting a stay or suspension of an order, permit or official action for an order issued pursuant to W. Va. Code 22-3 and can be approved. Therefore, the required amendment at 30 CFR 948.16(nnn) can be removed.

6. As described in House Bill 2882, W. Va. Code 22B-1-7(h), concerning appeals to boards, is amended by deleting the reference to article “three” in regard to appeals to the environmental quality board. This amendment is intended to satisfy the required program amendment codified at 30 CFR 948.16(ooo), which provides that West Virginia must revise Section 22B-1-7(h) by removing reference to Article 3, Chapter 22, of the West Virginia Code. As discussed in the Federal Register on March 4, 2003, we reinstated this required amendment in order to comply with U.S. District Court Judge Haden's ruling of January 9, 2003 (68 FR 10178).

We find that the deletion of the word “three” satisfies the required program amendment codified at 30 CFR 948.16(ooo) and can be approved. Therefore, the required amendment at 30 CFR 948.16(ooo) can be removed.

The following regulatory revisions are described in Committee Substitute for House Bill 2603.

7. CSR 38-2 is amended by updating the name of the U.S. Department of Agriculture, Natural Resources Conservation Service (NRCS) (formerly Soil Conservation Service) in several locations, i.e. , subsections 3.2.c, 3.20, 10.2.a.4, 10.3.a.1, 10.4.c.1, 10.6.b.2, 10.6.b.7.A, 10.6.b.7.B, and 10.6.b.8. We find that these changes accurately reflect the current name of the NRCS and can be approved.

8. CSR 38-2-3.7.d, concerning disposal of excess spoil, is new and adds a requirement for a survey of the watershed identifying all man made structures and residents in proximity to the disposal area to determine potential storm runoff impacts. At least 30 days prior to any beginning of placement of material, the accuracy of the survey shall be field verified. Any changes shall be documented and brought to the attention of the Secretary to determine if there is a need to revise the permit. There is no direct Federal counterpart to this provision. We find, however, that this new provision is consistent with the Federal permit application requirement at 30 CFR 780.35 concerning the disposal of excess spoil and can be approved.

9. CSR 38-2-3.22.f.5.A, A.1 and A.2, concerning hydrologic information required in a permit application, is amended. This language is new and requires that the hydrologic reclamation plan contain a description of the measures that will be taken to replace water supplies that are contaminated, diminished, or interrupted. The plan shall include an identification of the water replacement, which includes quantity and quality descriptions including discharge rates, or usage and depth to water; and documentation that the development of identified water replacement is feasible and that the financial resources necessary to replace the affected water supply are available. We find that this new language is consistent with the Federal permitting requirements at 30 CFR 780.21(h), 784.14(g) concerning the hydrologic reclamation plan, and 30 CFR 784.20(b)(8), pertaining to subsidence control plans, and can be approved.

10. CSR 38-2-5.4.b.4, concerning sediment control, is amended by adding language to provide that all sediment control systems for valley fills, including durable rock fills, shall be designed for the entire disturbed acreage of the fill and shall include a schedule indicating timing and sequence of construction over the life of the fill. There is no direct Federal counterpart to the proposed language. We find that the proposed language is not inconsistent with the Federal design provisions concerning sediment control structures at 30 CFR 780.25(b) and 784.16(b), and can be approved.

11. CSR 38-2-5.4.b.11, concerning the control of water discharge, is amended by adding language to provide that the location of discharge points and the volume to be released shall not cause a net increase in peak runoff from the proposed permit area when compared to premining conditions and shall be compatible with the post-mining configuration and adequately address watershed transfer. There is no direct Federal counterpart to this proposed language. We find, however, that the proposed language is not inconsistent with the Federal requirements at 30 CFR 816/817.47 concerning discharge structures and can be approved.

12. CSR 38-2-5.6, storm water runoff, is a new provision and requires each permit application to contain a storm water runoff analysis consistent with subsections 5.6.a through 5.6.d.1.e. The new language provides as follows:

5.6.a. Each application for a permit shall contain a storm water runoff analysis which includes the following:

5.6.a.1. An analysis showing the changes in storm runoff caused by the proposed operations(s) using standard engineering and hydrologic practices and assumptions.

5.6.a.2. The analysis will evaluate pre-mining, worst case during mining, and post-mining (Phase III standards) conditions. The storm used for the analysis will be the largest required design storm for any sediment control or other water retention structure proposed in the application. The analysis must take into account all allowable operational clearing and grubbing activities. The applicant will establish evaluation points on a case-by-case basis depending on site specific conditions including, but not limited to, type of operation and proximity of man-made structures.

5.6.a.3. The worst case during mining and post-mining evaluations must show no net increase in peak runoff compared to the pre-mining evaluation.

5.6.b. Each application for a permit shall contain a runoff-monitoring plan which shall include, but is not limited to, the installation and maintenance of rain gauges. The plan shall be specific to local conditions. All operations must record daily precipitation and report monitoring results on a monthly basis and any one (1) year, twenty-four (24) [hour] storm event or greater must be reported to the Secretary within twenty-four (24) hours and shall include the results of a permit wide drainage system inspection.

5.6.c. Each application for a permit shall contain a sediment retention plan to minimize downstream sediment deposition within the watershed resulting from precipitation events. Sediment retention plans may include, but are not limited to decant ponds, secondary control structures, increased frequency for cleaning out sediment control structures, or other methods approved by the Secretary.

5.6.d. After the first day of January two thousand four, all active mining operations must be consistent with the requirements of this subdivision. The permittee must demonstrate in writing that the operation is in compliance or a revision shall be prepared and submitted to the Secretary for approval within the schedule described in 5.6.d.1. Full comlpliance [compliance] with the permit revision shall be accomplished within 180 days from the date of Secretary approval. Active mining operations for the purpose of this subsection exclude permits that have obtained at least a Phase I release and are vegetated. Provided, however, permits or portions of permits that meet at least Phase I standards and are vegetated will be considered on a case by case basis.

5.6.d.1. Schedule of Submittal

5.6.d.1.a. Within 180 days from the first day of January two thousand four all active mining operations with permitted acreage greater than 400 acres must demonstrate in writing that the operation is in compliance or a revision shall be prepared and submitted to the Secretary for approval.

5.6.d.1.b. Within 360 days from the first day of January two thousand four all active mining operations with permitted acreage between 200 and 400 acres must demonstrate in writing that the operation is in compliance or a revision shall be prepared and submitted to the Secretary for approval.

5.6.d.1.c. Within 540 days from the first day of January two thousand four all active mining operations with permitted acreage between 100 and less than 200 acres must demonstrate in writing that the operation is in compliance or a revision shall be prepared and submitted to the Secretary for approval.

5.6.d.1.d. Within 720 days from the first day of January two thousand four all active mining operations with permitted acreage between 50 and less than 100 acres must demonstrate in writing that the operation is in compliance or a revision shall be prepared and submitted to the Secretary for approval.

5.6.d.1.e. Within 900 days from the first day of January two thousand four all active mining operations with permitted acreage less than 50 acres must demonstrate in writing that the operation is in compliance or a revision shall be prepared and submitted to the Secretary for approval. Provided, however, an exemption may be considered on a case by case basis. Futhermore [Furthermore], haulroads, loadouts, and ventilation facilities are excluded from this requirement.

There is no direct Federal counterpart to these provisions concerning storm water runoff. However, we find that these provisions are not inconsistent with the Federal requirements at 30 CFR 816/817.41 through 816/817.47, which require that all surface mining and reclamation activities be conducted to prevent material damage to the hydrologic balance outside the permit area, and can be approved. We note that at subsection CSR 38-2-5.6.b, the word “hour” is missing in the phrase “one (1) year, twenty-four (24) storm event.” The phrase should read, “one (1) year, twenty-four (24) hour storm event.” We understand this to be an inadvertent omission that will be corrected at a future date.

13. CSR 38-2-8.2.e, concerning fish and wildlife considerations, is amended by adding language to provide that in planning and constructing a windrow, the windrow shall not be placed in such manner or location to block natural drainways. We approved CSR 38-2-8.2.e on February 9, 1999 (64 FR 6201, 6209-6210). The proposed amendment to this provision is intended to make it clear that, so as not to impound water, timber used to create a windrow must not be placed in a manner or location that would block natural drainways. There is no direct Federal counterpart to this proposed language. However, we find that the proposed language does not render this provision inconsistent with SMCRA at section 515(d)(1) or less effective than the Federal regulations at 30 CFR 816/817.107(b) and can be approved. We note that this amended provision contains an inadvertent grammatical error. The amended sentence provides as follows: “In planning and constructing the windrow, care shall be taken not to impound water or and shall not be placed in such manner or location to block natural drainways.” We understand the amended sentence to mean that in planning and constructing a windrow, care shall be taken so that the windrow not impound water or be placed in such manner or location to block natural drainways. Our approval of this provision is based upon our understanding that the inadvertent grammatical error will be corrected at a future date.

14. CSR 38-2-9.1.a, concerning revegetation, is amended by adding language to provide that reforestation opportunities must be maximized for all areas not directly associated with the primary approved postmining land use; and revegetation plans for those areas to be reforested must include a map, a planting schedule and stocking rates. The intent of this provision is to encourage tree planting and reforestation where traditionally grasslands might be the revegetation of choice. There is no direct Federal counterpart to this proposed language. However, we find that the proposed language is not inconsistent with the Federal requirements concerning revegetation at 30 CFR 816/817.111(a) and can be approved.

15. CSR 38-2-9.3.d, concerning standards for evaluating vegetative cover, is amended by deleting the words “from the Handbook,” so that sampling techniques will no longer be taken from the State's technical handbook. This deletion does not render the provision less effective than the Federal revegetation requirements at 30 CFR 816/817.116(a), because the State's statistically valid sampling techniques for measuring ground cover and productivity are no longer contained in the Handbook. The WVDEP submitted a policy entitled “Productivity and Ground Cover Success Standards” that we approved in the Federal Register on May 1, 2002 (67 FR 21904, 21906-21907). The State's statistically valid sampling techniques for measuring ground cover and productivity are set forth in the May 1, 2002, policy. Therefore, we find that the deletion of the words “from the Handbook” does not render the West Virginia program less effective than the Federal requirements and can be approved.

16. CSR 38-2-9.3.f, concerning standards for evaluating vegetative cover and productivity, is amended by deleting the words “in the Handbook,” and replacing those words with the words “by the Secretary.” The effect of the change is that vegetation ground cover and productivity levels will be set by the Secretary of the WVDEP, rather than as provided in the State's technical handbook. The deletion of the phrase “in the Handbook” and its replacement by the phrase “by the Secretary” does not render the provision less effective than the Federal revegetation standards at 30 CFR 816/817.116(a), because the Secretary of WVDEP will set the productivity success standards for the State. The WVDEP submitted a policy establishing such success standards that we approved in the Federal Register on May 1, 2002 (67 FR 21904, 21906-21907). The State's productivity success standards for hayland, pastureland, rangeland and cropland are set forth in that policy. Therefore, we find that the proposed amendments do not render the West Virginia program less effective than the Federal requirements and can be approved.

17. CSR 38-2-14.5.h, concerning hydrologic balance, is amended by adding a proviso which provides that the requirement for replacement of an affected water supply that is needed for the land use in existence at the time of contamination, diminution or interruption or where the affected water supply is necessary to achieve the post-mining land use shall not be waived. This amendment is intended to satisfy the required program amendment codified at 30 CFR 948.16(sss). As discussed in the Federal Register dated March 4, 2003, we reinstated this required amendment in order to comply with U.S. District Court Judge Haden's ruling of January 9, 2003 (68 FR 10178).

The required program amendment codified at 30 CFR 948.16(sss) provides that the West Virginia program must be amended to clarify that the replacement of water supply can only be waived under the conditions set forth in the definition of “Replacement of water supply,” paragraph (b), at 30 CFR 701.5, which provides as follows:

We find that the proposed language provides a counterpart to the Federal requirement that limits waivers of water supply replacement to only those cases where the affected water supply is not needed for the current or proposed postmining land use. Therefore, the proposed amendment can be approved. In addition, we find that it is reasonable to presume that a waiver authorized under W. Va. Code 22-3-24(b) and CSR 38-2-14.5.h would be in writing. However, we recommend that the State amend subsection CSR 38-2-14.5.h to clarify that a waiver of water supply replacement be in writing. Finally, the CSR 38-2-14.5.h continues to lack a requirement that a waiver can only be approved where it is demonstrated that a suitable alternative water source is available and could feasibly be developed. Therefore, we will revise the required program amendment at 30 CFR 948.16(sss) to require that CSR 38-2-14.5.h be further amended to provide a counterpart to the Federal requirement in the definition of “Replacement of water supply,” paragraph (b), at 30 CFR 701.5, which provides that replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed.

18. CSR 38-2-14.14.g.1 is amended by adding language to provide that durable rock fills proposed after January 1, 2004, may only be approved with the design, construction, and use of a single lift fill if they include an erosion protection zone or a durable rock fill designed to be reclaimed from the “tow” [toe] upward. There is no direct counterpart to the proposed language in the Federal regulations concerning the design of durable rock fills. However, we find that the proposed requirements do not render CSR 38-2-14.14.g.1 less effective than the Federal regulations regarding durable rock fills at 30 CFR 816/817.73 and can be approved. We note the inadvertent typographical error (“tow” should be “toe”) and understand that it will be corrected at a future date.

19. CSR 38-2-14.14.g.2 is new and adds design specifications and requirements for single lift fills with an erosion protection zone. The new language provides as follows:

14.14.g.2.A. Erosion Protection Zone. The erosion protection zone is a designed structure constructed to provide energy dissipation to minimize erosion vulnerability and may extend beyond the designed toe of the fill.

14.14.g.2.A.1. The effective length of the erosion protection zone shall be at least one half the height of the fill measured to the target fill elevation or fill design elevation as defined in the approximate original contour procedures and shall be designed to provide a continuous underdrain extension from the fill through and beneath the erosion protection zone.

14.14.g.2.A.2. The height of the erosion protection zone shall be sufficient to accommodate designed flow from the underdrain of the fill and shall comply with 14.14.e.1. of this rule.

14.14.g.2.A.3. The erosion protection zone shall be constructed of durable rock as defined in 14.14.g.1. originating from a permit area and shall be of sufficient gradation to satisfy the underdrain function of the fill.

14.14.g.2.A.4. The outer slope or face of the erosion protection zone shall be no steeper than two (2) horizontal or one (1) vertical (2:1). The top of the erosion protection zone shall slope toward the fill at a three (3) to five (5) percent grade and slope laterally from the center toward the sides at one (1) percent grade to discharge channels capable of passing the peak runoff of a one-hundred (100) year, twenty-four (24) hour precipitation event.

14.14.g.2.A.5. Prior to commencement of single lift construction of the durable rock fill, the erosion protection zone must be seeded and certified by a registered professional engineer as a critical phase of fill construction. The erosion protection zone shall be maintained until completion of reclamation of the fill.

14.14.g.2.A.6. Unless otherwise approved in the reclamation plan, the erosion protection zone shall be removed and the area upon which it was located shall be regarded [regraded] and revegetated in accordance with the reclamation plan.

14.14.g.2.B. Single Lift Construction Requirements.

14.14.g.2.B.1. Excess spoil disposal shall commence at the head of the hollow and proceed downstream to the final toe. Unless required for construction of the underdrain, there shall be no material placed in the fill from the sides of the valley more that [than] 300 feet ahead of the advancing toe. Exceptions from side placement of material limits may be approved by the Secretary if requested and the applicant can demonstrate through sound engineering that it is necessary to facilitate access to isolated coal seams, the head of the hollow or otherwise facilitates fill stability, erosion, or drainage control.

14.14.g.2.B.2. During construction, the fill shall be designed and maintained in such a manner as to prevent water from discharging over the face of the fill.

14.14.g.2.B.2.(a). The top of the fill shall be configured to prevent water from discharging over the face of the fill and to direct water to the sides of the fill.

14.14.g.2.B.2.(b). Water discharging along the edges of the fill shall be conveyed in such a manner to minimize erosion along the edges of the fill.

14.14.g.2.B.3. Reclamation of the fill shall be initiated from the top of the fill and progress to the toe with concurrent construction of terraces and permanent drainage.

The proposed provisions are more detailed than, but are not inconsistent with, the Federal requirements for durable rock fills at 30 CFR 816/817.73. Neither SMCRA nor the Federal regulations prohibit the construction of single-lift durable rock fills. However, the Environmental Protection Agency (EPA) commented on the proposed amendments and provided a conditional approval of CSR 38-2-14.14.g.2.A.6 concerning the removal of erosion protection zones following mining. See Section IV, Summary and Disposition of Comments, below, for a complete discussion of EPA's comments.

The EPA stated that it is concerned that erosion protection zones (EPZs) may result in permanent stream fills after completion of mining. According to CSR 38-2-14.14.g.2.A.1, the EPA stated, a 250-foot long EPZ would be required for a 500-foot high valley fill, which, EPA stated, is not unusual in southern West Virginia. Although Section 14.14.g.2.A.6 requires EPZ removal, regrading, and revegetating after mining, EPA stated, it does not appear to include removal of the stream fill associated with the EPZ or reconstruction of the stream channel.

The EPA stated that it concurs with the proposed revisions under the condition that a requirement be included to remove stream fills associated with EPZs after mining and reconstruct the stream channels.

Therefore, and considering EPA's conditional concurrence as noted above, we find that these new design specifications and requirements for single-lift fills with an erosion protection zone do not render the West Virginia program less effective than the Federal durable rock fill requirements at 30 CFR 816/817.71 and 816/817.73 and can be approved with the following exceptions.

At CSR 38-2-14.14.g.2.A.6, we are not approving the words “[u]nless otherwise approved in the reclamation plan” because leaving an EPZ in place would be inconsistent with EPA's conditional concurrence to remove stream fills associated with EPZs and to reconstruct the stream channels after mining. We are approving CSR 38-2-14.14.g.2.A.6 only to the extent that following mining, all stream fills associated with EPZs will be removed and the stream channels shall be reconstructed in the manner described at CSR 38-2-5.3 and 14.4.a concerning stream diversions.

20. CSR 38-2-14.14.g.3 is new and adds design specifications and requirements at 14.14.g.3 through 14.14.g.3.B for durable rock fills designed to be reclaimed from the toe upward. The new language provides as follows:

14.14.g.3.A. Transportation of material to toe of fill. The method of transporting material to the toe of the fill shall be specified in the application and shall include a plan for inclement weather dumping. The means of transporting material to the toe may be by any method authorized by the Act [the West Virginia Surface Coal Mining and Reclamation Act] and this rule and is not limited to the use of roads.

14.14.g.3.A.1. Constructed roads shall be graded and sloped in such a manner that water does not discharge over the face. Sumps shall be constructed along the road in switchback areas and shall be located at least 15 feet from the outslope.

14.14.g.3.A.2. The constructed road shall be in compliance with all applicable State and Federal safety requirements. The design criteria to comply with all applicable State and Federal safety requirements shall be included in the permit.

14.14.g.3.B. Once the necessary volume of material has been transported to the toe of the fill, face construction and installation of terraces and permanent drainage shall commence. The face construction and reclamation of the fill shall be from the bottom up with progressive construction of terraces and permanent drainage in dumping increments not to exceed 100 feet.

The proposed provisions are more detailed than, but are not inconsistent with, the Federal requirements for durable rock fills at 30 CFR 816/817.73. Therefore, we find that these new design specifications and requirements for durable rock fills designed to be reclaimed from the toe upward do not render the West Virginia program less effective than the Federal durable rock fill requirements at 30 CFR 816/817.71 and 816/817.73 and can be approved. In addition, we are approving these requirements with the understanding that if roads are not used to transport the excess material as provided in subsection 14.14.g.3.A, the alternative means of transportation will ensure that the excess spoil will be transported to the toe of the fill and placed in a controlled manner as provided by CSR 38-2-14.14.a.2 and 30 CFR 816/817.71(e)(2).

21. CSR 38-2-14.15.a.2, concerning contemporaneous reclamation standards, is amended by adding language to provide that the mining and reclamation plan shall contain information on how mining and reclamation operations will be coordinated so as to minimize surface water runoff, and comply with the storm water runoff plan. There is no direct Federal counterpart to the proposed language. We find, however, that the proposed language is not inconsistent with the Federal regulations at 30 CFR 816/817.100 concerning contemporaneous reclamation and can be approved.

22. CSR 38-2-14.15.c, concerning reclaimed area, is amended by adding the words “and seeding has occurred” to the definition of reclaimed acreage that is applicable to this subsection. As amended, the definition of reclaimed area provides that for purposes of this subsection, reclaimed acreage shall be that portion of the permit area which has at a minimum been fully regraded and stabilized in accordance with the reclamation plan, meets Phase I standards, and seeding has occurred. We find that the amendment to this provision does not render the West Virginia rule less effective than the Federal regulations concerning contemporaneous reclamation at 30 CFR 816/817.100 and bond release at 30 CFR 800.40(c) can be approved.

23. CSR 38-2-14.15.g, concerning contemporaneous reclamation variance—permit applications, is amended by adding language to require a demonstration that the variance being sought will comply with CSR 38-2-5.6 concerning the new storm water runoff provisions. There are no counterpart Federal requirements to the new West Virginia storm water runoff provisions at CSR 38-2-5.6. We find, however, that the amendment to this provision does not render the West Virginia rule less effective than the Federal regulations concerning contemporaneous reclamation at 30 CFR 816/817.100 and can be approved.

24. CSR 38-2-17.1, concerning Small Operator Assistance Program (SOAP), is amended by adding that the Secretary of WVDEP shall establish a formula for allocating funds to provide services for eligible small operators if available funds are less than those required to provide the services pursuant to CSR 38-2-17. This new language provides the West Virginia program with a counterpart to the Federal requirement at 30 CFR 795.11(b) and can be approved. We note that the State must now actually establish a formula for allocating SOAP funds.

25. CSR 38-2-20.6.a, concerning civil penalty assessments, is amended by deleting all language concerning an “assessment officer,” and adding language concerning the Secretary of WVDEP. The new language provides that the Secretary shall not determine the proposed penalty assessment until such time as an inspection of the violation has been conducted and the findings of that inspection are submitted to the Secretary in writing. The Secretary must conduct the inspection of the violation within the first 15 days after the notice or order was served. We find that, as amended, the State's civil penalty assessment procedures are the same as or similar to those contained in section 518 of SMCRA, are consistent with the Federal procedures concerning civil penalty assessment at 30 CFR 845.17, and can be approved.

26. CSR 38-2-20.6.c, concerning notice of civil penalty assessment, is amended by deleting two sentences that provide that the “Secretary shall also give notice including any worksheet, in person or by certified mail, to the operator of any penalty adjustment as a result of an informal conference within thirty (30) days following the date of the conference. The reasons for reassessment shall be documented in the file by the assessment officer.” Also, the following sentence is added immediately before the existing last sentence: “The reasons for reassessment shall be documented in the file by the Secretary.” The two sentences that were deleted from this provision pertain to procedures for an informal conference, and were relocated to CSR 38-2-20.6.e concerning informal conference. We find that the amendments to CSR 38-2-20.6.c do not render the provision inconsistent with the Federal provisions concerning procedures for assessment of civil penalties at 30 CFR 845.17(b) and (c), and 845.18(c) and can be approved.

27. CSR 38-2-20.6.d, concerning notice of informal assessment conference, is amended by adding language to provide that the Secretary shall arrange for a conference to review the proposed assessment or reassessment, upon written request if received within 15 days from the date the proposed assessment or reassessment is received. Language is also added to provide that the operator shall forward the amount of proposed penalty assessment to the Secretary for placement in an interest bearing escrow account, and that the Secretary shall assign an assessment officer to hold the assessment conference.

We find that the new language is similar to and therefore consistent with the Federal provision at 30 CFR 845.18(a) concerning procedures for assessment conference even though it provides a shorter period in which to request an informal conference. We also find that requiring the operator to forward the amount of the proposed penalty assessment to the Secretary of the WVDEP prior to an assessment conference is not inconsistent with the Federal provision at 30 CFR 845.19. The Federal rule at 30 CFR 845.19 concerns request for a hearing, and provides that the person charged with the violation may contest the proposed penalty reassessment by submitting a petition and an amount equal to the proposed penalty for placement in an escrow account. Therefore, we find that the proposed language can be approved.

28. CSR 38-2-20.6.e, concerning informal conference, is amended by adding language to provide that the assessment officer shall give notice including any worksheet, in person or by certified mail, to the operator of any penalty adjustment as a result of an informal conference within 30 days following the date of the conference. The reasons for the assessment officer's action shall be documented in the file. This language was relocated from the approved program at CSR 38-2-20.6.c, and appropriately placed in this subsection concerning informal conference. We find that this amendment is consistent with the Federal provisions concerning procedures for assessment conference at 30 CFR 845.18(c) and can be approved.

29. CSR 38-2-20.6.f is new and adds the requirement that an increase or reduction of a proposed civil penalty of more than 25 percent and more than $500.00 shall not be final and binding until approved by the Secretary. We find that this provision is substantively identical to the Federal regulations at 30 CFR 845.18(b)(4) concerning procedures for assessment conference and can be approved.

30. CSR 38-2-20.6.j, concerning escrow, is amended by adding the phrase “an informal conference or” immediately before the words “judicial review of a proposed assessment.” In addition, the words “continue to” are deleted immediately before the words “be held in escrow.” The amended provision provides that if a person requests an informal conference or judicial review of a proposed assessment, the proposed penalty assessment shall be held in escrow until completion of the judicial review. We find that this provision as amended is not inconsistent with the Federal provision at 30 CFR 845.19(b), which provides that funds placed in escrow shall he held in escrow pending completion of the administrative and judicial review process. Therefore, the amendments to CSR 38-2-20.6.j can be approved.

31. CSR 38-2-22.4.g.3.A concerns the design of Class C-type coal refuse impoundments without discharge structures that must be capable of storing a minimum of two six hour duration probable maximum storms. This provision is amended by deleting the second sentence and adding three sentences in its place. The new language requires that a system shall be designed to dewater the impoundment of the probable maximum storm in 10 days by pumping or other means. The new language also states that the requirements of the Coal Related Dam Safety Rule at CSR 38-4-25.14, concerning removal of storm water from impoundments, shall be met. For existing structures exceeding the minimum two PMP (Probable Maximum Precipitation) volume requirement, the dewatering system shall be installed when the containment volume is reduced to two PMPs.

The proposed language that requires a system to be designed to dewater the impoundment of the probable maximum storm in 10 days by pumping or by other means is consistent with the State's performance standard for coal refuse impoundments provision at CSR 38-2-22.5.j.5, which provides that impounding structures constructed of or impounding coal mine refuse shall be designed so that at least 90 percent of the water stored during the design precipitation event can be removed within a 10-day period. The substantively identical Federal counterpart to CSR 38-2-22.5.j.5 is contained in 30 CFR 816/817.84(e). We find that the proposed design standard is no less effective than the counterpart Federal regulations at 30 CFR 816/817.49(c)(2)(i) and 816/817.84(e) and can be approved.

The proposed new language also provides that the requirements of the Coal Related Dam Safety Rule at CSR 38-4-25.14, concerning removal of storm water from impoundments, shall be met. We are currently reviewing the State's Coal Related Dam Safety Rule at CSR 38-4 under a separate program amendment submitted by the State. However, since CSR 38-4-25.14 is relevant to the proposed amendment at CSR 38-2-22.4.g.3.A, we will address the State's Coal Related Dam Safety Rule at CSR 38-4-25.14 here.

Proposed CSR 38-4-25.14 provides as follows:

Proposed CSR 38-4-25.14 provides, in effect, a counterpart to the Federal regulations at 30 CFR 816/817.84(f), concerning the performance standard for impounding structures constructed of or impounding coal mine waste. The regulation at 30 CFR 816/817.84(f) provides that for an impounding structure constructed of or impounding coal mine waste, at least 90 percent of the water stored during the design precipitation event shall be removed within the 10-day period following the design precipitation event. We find that the proposed language at CSR 38-2-22.4.g.3.A, which requires that the Coal Related Dam Safety Rule at CSR 38-4-25.14 be met, together with the proposed regulation at CSR 38-4-25.14 are no less effective than the counterpart Federal regulations at 30 CFR 816/817.84(f) and can be approved.

The proposed new language also requires that for existing structures exceeding the minimum 2 PMP volume requirement, the “dewatering system” shall be installed when the containment volume is reduced to 2 PMPs. While the language does not specifically state that the “dewatering system” referred to is the same system as described at CSR 38-2-22.4.g.3.A, we interpret this provision to mean the same. That is, the system shall be designed to dewater the impoundment of the probable maximum storm in 10 days by pumping or other means, and the requirements of the Coal Related Dam Safety Rule at CSR 38-4-25.14, concerning removal of storm water from impoundments shall also be met. There is no Federal counterpart to this provision. We find, however, that the provision is not unreasonable, and that the proposed design standard is no less effective than the counterpart Federal regulations at 30 CFR 816/817.49(c)(2)(i) and 816/817.84(e) and can be approved.

32. CSR 38-2-22.4.i.6 is new and concerns the use of corrugated metal pipes in spillways. This provision provides that corrugated metal pipes, whether coated or uncoated, shall not be used in new or unconstructed refuse impoundments or slurry cells. If an existing corrugated metal pipe has developed leaks or otherwise deteriorated so as to cause the pipe to not function properly and such deterioration constitutes a hazard to the proper operation of the impoundment, the Secretary will require the corrugated metal pipe to be either repaired or replaced. We find that the provision is consistent with the Federal regulation at 30 CFR 816/817.84(c) which provides that spillways and outlet works of coal mine waste impounding structures shall be designed to provide adequate protection against erosion and corrosion, and that inlets shall be protected against blockage. Therefore, we are approving the provision.

33. CSR 38-2-24.2.a, concerning the revegetation of remining operations, is amended by deleting the words “in the Handbook” at the end of the last sentence, and replacing those words with the words “by the Secretary.” The new revision provides that the determination of premining ground cover success and productivity shall be made using sampling techniques described by the Secretary. The WVDEP submitted a policy identifying statistically valid sampling techniques for measuring ground cover and productivity success that we approved on May 1, 2002 (67 FR 21904, 21906-21907). Therefore, we find that the deletion of the words “from the Handbook” does not render the West Virginia program less effective than the Federal regulations and can be approved.

34. CSR 38-2-24.3 concerns water quality exemptions for coal remining operations. This provision is amended by adding the following language at the end of the last sentence: “or a coal remining operation as defined in 40 CFR part 434 as amended may qualify for the water quality exemptions set forth in 40 CFR part 434 as amended.” The amended provision provides that a coal remining operation which began after February 4, 1987, and on a site which was mined prior to August 3, 1977, may qualify for the water quality exemptions set forth in subsection (p), section 301 of the Federal Clean Water Act, as amended or a coal remining operation as defined in 40 CFR part 434 as amended may qualify for the water quality exemptions set forth in 40 CFR part 434 as amended.

The existing language of this provision incorporates the added flexibility provided by the 1987 revision to the Clean Water Act that added section 301(p) (33 U.S.C. 1311(p)), often called the Rahall Amendment, that provides incentives for remining abandoned mine lands that predate the passage of SMCRA. The State's proposed language is intended to incorporate the added flexibility provided by amendments to the Federal regulations at 40 CFR 434.70-434.75, which added effluent limitations and performance standards to a new Coal Remining Subcategory (Subpart G) under the existing regulations for the Coal Mining Point Source Category (January 23, 2002; 67 FR 3370). New Subpart G applies to coal remining operations, which are defined at 40 CFR 434.70(a) as coal mining operations at sites on which coal mining was previously conducted and where the sites have been abandoned or the performance bonds have been forfeited. Since the additional language incorporates water quality exemptions authorized under the Clean Water Act, we find that the addition of the proposed language does not render the West Virginia program less stringent than SMCRA nor less effective than the Federal regulations and can be approved.

35. CSR 38-2-24.4 concerns bond release requirements for remining operations. This provision is amended by adding the following language at the end of the first sentence: “and the terms and conditions set forth in the NPDES [National Pollutant Discharge Elimination System] Permit in accordance with subsection (p), section 301 of the Federal Clean Water Act, as amended or 40 CFR part 434 as amended.” The new revision provides that bond release for remining operations shall be in accordance with all of the requirements set forth in subsection 12.2 of this rule and the terms and conditions set forth in the NPDES Permit in accordance with subsection (p), section 301 of the Federal Clean Water Act, as amended or 40 CFR part 434 as amended. The proposed new language is intended to establish effluent limitations guidelines and new source performance standards for coal remining operations that are authorized under section 301(p) of the Clean Water Act, and at subpart G of the Federal regulations at 40 CFR part 434 (see Finding 34 above for more information). For the same reasons as those set forth in Finding 34, above, we find that the addition of the proposed language does not render the West Virginia program less stringent than SMCRA nor less effective than the Federal regulations and can be approved.

No public comments were received in response to our requests for comments from the public on the proposed amendments.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on April 2 and 4, 2003, we requested comments on the amendments from various Federal agencies with an actual or potential interest in the West Virginia program (Administrative Record Number WV-1356 and 1357). On June 4, 2003, the U.S. Department of Labor, Mine Safety and Health Administration (MSHA), responded (Administrative Record Number WV-1362) and stated that it has no comments on the changes in House Bills 2881 and 2882. MSHA stated that House Bill 2603 lacks the word “hour” on page 10, line one, at CSR 38-2-5.6.b, concerning storm water runoff. MSHA stated that in referring to the storm event, the statement “one (1) year, twenty-four (24) storm event” should read “one (1) year, twenty-four hour storm event”. We acknowledged that the word “hour” is missing in Finding 12, above, and approved the provision with the understanding that the inadvertent omission would be corrected at a future date. MSHA had the following comments concerning the amendments to the regulations at CSR 38-2.

Section 3.7.d, concerning disposal of excess spoil. MSHA stated that is has no counterparts to these regulations that require a survey of the watershed to identify all man-made structures and residents and to determine the potential storm runoff impacts, and that require that the accuracy of the survey be verified by field work. As noted in Finding 8, above, we determined that there are no Federal counterparts to the provision, but that it is consistent with the Federal permit application requirement at 30 CFR 780.35 concerning the disposal of excess spoil and can be approved.

MSHA identified the proposed amendments at CSR 38-2-5.4.b.4, 5.6, 22.4.g.3.a, and 22.4.i.g [i], but did not provide any comments on those changes.

MSHA also provided comments on the changes to CSR 38-4, Coal Related Dam Safety Rule. As we noted above in Section III, in order to expedite our review of the State's proposed provisions that concern the recommendations of West Virginia's 2002 Flood Study, we separated all except one of the amendments relating to CSR 38-4, Coal Related Dam Safety Rule from this amendment. We will address the proposed amendments to CSR 38-4 and MSHA's comments relating to the proposed amendments to CSR 38-4, in a separate Federal Register notice at a later date.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). On April 1, 2003, we asked for concurrence and comments on the amendment (Administrative Record Number WV-1355).

The EPA responded by letter dated June 13, 2003, (Administrative Record Number WV-1363).

The EPA stated that it reviewed the proposed revisions and has concerns about the requirement of erosion protection zones (EPZs) associated with single-lift valley fills at CSR 38-2-14.14.g.1 (Durable Rock Fills).

EPZ Purpose—The EPA stated that it is EPA's understanding that an EPZ is a buffer zone between the toe of a single lift valley fill and its downstream sedimentation pond. It consists of a wide and low fill, revegetated to dissipate runoff energy from the valley fill face and prevent pond overloading during severe storm periods. The EPA stated that a single lift fill is particularly subject to erosion, since it is constructed in a downstream direction toward the pond with no reclamation or revegetation of the fill face until completion of mining.

EPA's Concern—The EPA stated that it is concerned that EPZs may result in permanent stream fills after completion of mining. According to CSR 38-2-14.14.g.2.A.1, the EPA stated, a 250-foot long EPZ would be required for a 500-foot high valley fill, which, EPA stated, is not unusual in southern West Virginia. Although Section 14.14.g.2.A.6 requires EPZ removal, regrading, and revegetating after mining, EPA stated, it does not appear to include the removal of the stream fill associated with the EPZ or reconstruction of the stream channel. An alternative valley fill design, which appears more environmentally acceptable, EPA stated, is also indicated in Section 14.14.g.1 and further described in Section 14.14.g.3. The EPA stated that this involves starting valley fill construction from the toe and proceeding upstream in multiple lifts (layers) of 100 feet or less in thickness. The EPA stated that the face of each lift would be reclaimed and revegetated before starting the next lift. The toe of the first lift would be at the sedimentation pond, the EPA stated, and an EPZ would not be necessary due to better erosion control features.

Conditional Concurrence—The EPA stated that it concurs with the proposed revisions under the condition that a requirement be included to remove stream fills associated with EPZs after mining and reconstruct the stream channels. The EPA stated that it should also be noted that stream filling during EPZ construction requires authorization under Section 404 of the Clean Water Act, administered by the U.S. Army Corps of Engineers. Considering the high erosion potential of single-lift valley fills, the EPA stated, they (EPA) recommend that the single lift method be replaced by the more environmentally favorable approach of starting at the toe and proceeding upwards in multiple lifts. The EPA stated that it will likely make this recommendation for any proposed single lift fill coming before it for Section 404 review.

In response to EPA's conditional concurrence, and as we noted above in Finding 19, at CSR 38-2-14.14.g.2.A.6, we are not approving the words “[u]nless otherwise approved in the reclamation plan” because leaving an EPZ in place would be inconsistent with EPA's conditional concurrence to remove stream fills associated with EPZs and to reconstruct the stream channels after mining. In addition, we are approving CSR 38-2-14.14.g.2.A.6 only to the extent that following mining, all stream fills associated with EPZs will be removed and the stream channels shall be reconstructed.

The EPA also provided the following comments in support of specific amendments:

1. CSR 38-2-5.6.a.3 (Storm Water Runoff)—The EPA stated that this section requires that mining cause no net increase in peak runoff as compared to pre-mining conditions. The EPA stated that this is an important requirement for preventing mining operations from causing or increasing local flooding conditions. We concur with EPA's comment.

2. CSR 38-2-9.1.a (Revegetation)—The EPA stated that this section requires maximization of reforestation opportunities during mining reclamation. The EPA stated that it is a very beneficial approach to return land to its original forested state, unless there are other specific post-mining land uses. We concur with EPA's comment.

3. CSR 38-2-24.3 and 24.4 (Remining)—The EPA stated that these sections reference EPA's remining effluent guideline regulations promulgated in 2002 and listed in 40 CFR part 434, as amended. The EPA stated that they implement the Clean Water Act statute regarding remining, section 301(p), passed in 1987. The EPA stated that it considers remining to be an important tool for improving water quality and reclaiming scarred land associated with abandoned mines. The EPA stated that it supports providing of incentives to companies for remining salvageable coal from abandoned mines while making these environmental improvements with no cost to the public. The EPA stated that it is planning on holding workshops on implementation of the 2002 remining regulations during the summer of 2003. We concur with EPA's comments concerning CSR 38-2-24.3 and 24.4.

Based on the above findings, and except as noted below, we approve the amendment sent to us by West Virginia on March 18, 2003. In addition, the following required program amendments are satisfied and can be removed at 30 CFR 948.16(nnn), (ooo), and (qqqq).

The amendments to CSR 38-2-14.5.h (Finding 17) partially satisfy the required program amendment at 30 CFR 948.16(sss). Therefore, we will revise the required program amendment at 30 CFR 948.16(sss) to require that, if the water supply is not needed for the existing or postmining land use, such waiver can only be approved where it is demonstrated that a suitable alternative water source is available and could feasibly be developed.

At CSR 38-2-14.14.g.2.A.6 (Finding 19), we are not approving the words “[u]nless otherwise approved in the reclamation plan” because leaving an EPZ in place would be inconsistent with EPA's conditional concurrence to remove stream fills associated with EPZs and to reconstruct the stream channels after mining. We are approving CSR 38-2-14.14.g.2.A.6 only to the extent that following mining, all stream fills associated with EPZs will be removed and the stream channels shall be reconstructed.

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 upon the analysis performed under various laws and executive orders for the counterpart Federal regulations.

This rule is exempt from review by the Office of Management and Budget (OMB) 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.

This notice implements the permanent special local regulation governing the Stamford Fireworks, Stamford, CT. A portion of Westcott Cove, Stamford, CT will be closed during the effective period to all vessel traffic, except the fireworks barge and local, state or Coast Guard patrol craft. The regulated area is that area of Westcott Cove in a 500-yard radius of the fireworks launch platform located at approximate position 41°02′01″ N, 73°30′3″ W. All coordinates are North American Datum 1983. Additional public notification will be made via the First Coast Guard District Local Notice to Mariners and marine safety broadcasts. The full text of this regulation is found in 33 CFR 100.114.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. 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.

Temporary safety zones are 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 safety zones to control vessel movement around the locations of the launch platforms will help ensure the safety of persons and property at these events and help minimize the associated risk.

The safety zone will encompass all waters surrounding the fireworks launch platform bounded by the arc of a circle with a 300-yard radius with its center in approximate position 44°39′70″ N, 083°17′20″ W (off of the DNR boat launch). 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 Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. The Office of Management and Budget has not reviewed this rule under that order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). We expect 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 zone, and therefore minor if any impacts to Mariners.

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

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

This rule would affect the following entities, some of which might be small entities: the owners or operators of commercial vessels intending to transit 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 8 p.m. until 11 p.m. on the day of the event and allows vessel traffic to pass outside of the safety zone. Before the effective period, we 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), we want to assist small entities in understanding this rule so that they can better evaluate its effects and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office 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).

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 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 would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

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

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

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

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

We have analyzed this 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.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, 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 necessary 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 a fireworks display. 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 locations of the launch platforms 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 Saginaw River surrounding two fireworks launch platforms bounded by the arc of a circle with a 300-yard radius with each center in approximate positions 43°35′55″ N, 083°53′40″ W (off Veterans Park) and 43°35′55″ N, 083°53′30 W″ (off Wenonah Park). 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 the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on-scene representative. The Captain of the Port or his designated on-scene representative 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 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 p.m. on the days 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 the Saginaw River 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 calls 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 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.

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) was not published for this regulation. Good cause exists for not publishing a NPRM and for making this regulation effective in less than 30 days after Federal Register publication. Any delay encountered in this rule's effective date would be contrary to public interest since the safety zone is needed to prevent traffic from transiting a portion of Marblehead Harbor, Massachusetts, during the fireworks event and to provide for the safety of life on navigable waters. Additionally, the rule should have a negligible impact on vessel transits due to the fact that vessels will only be limited from the area for 2 and one half hours, vessels will only be prohibited from entering the Southern fifth of the Harbor, and vessels can still transit in other areas in the majority of Marblehead Harbor and Massachusetts Bay during the event.

The Marblehead Fireworks Committee is holding a fireworks display to celebrate the July 4th holiday. This regulation establishes a safety zone in the vicinity of the Marblehead Causeway within a 400-yard radius of the fireworks barge located at position 42°29′11″ N, 70°51′01″ W. The safety zone is in effect from 8 p.m. until 10:30 p.m. on July 4, 2003.

This safety zone is necessary to protect the life and property of the maritime public from the dangers posed by this event. It will protect the public by prohibiting entry into or movement within this portion of Marblehead Harbor where an explosion and/or falling debris hazard may exist.

The safety zone is in effect from 8 p.m. until 10:30 p.m. July 4, 2003. Marine traffic may transit safely outside of the safety zone in the majority of Marblehead Harbor during the event, only the Southern fifth is encompassed by this zone.

Because of the limited time and because the zone leaves the majority of Marblehead Harbor open for navigation, the Captain of the Port anticipates minimal negative impact on vessel traffic due to this event. Public notifications will be made prior to the effective period via local notice to mariners and marine information broadcasts.

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

The Coast Guard expects the economic impact of this rule to be minimal enough that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this rule will prevent traffic from transiting a portion of Marblehead Harbor during the effective period, the effects of this rule will not be significant for several reasons: vessels will only be excluded from the area of the safety zone for 2 and one half hours, vessels will be able to operate in the majority of the Harbor during this time, and advance notifications will be made to the local maritime community by marine information broadcasts and Local Notice to Mariners.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in the vicinity of the Marblehead Causeway on July 4, 2003. This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons described under the Regulatory Evaluation section.

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.

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 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) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal government having first provided the funds to pay those costs. This rule would not impose an unfunded mandate.

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

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

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

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

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) was not published for this regulation. Good cause exists for not publishing a NPRM and for making this regulation effective in less than 30 days after Federal Register publication. The temporary safety zone is of very short duration and should have minimal impact on navigation. Accordingly, publishing an NPRM and delaying its effective date would be unnecessary and contrary to public interest since immediate action is needed to prevent traffic from transiting a portion of Salem Harbor, Massachusetts during the fireworks event and to provide for the safety of life on navigable waters. Additionally, the zone should have a negligible impact on vessel transits due to the fact that vessels can still transit in the majority of Salem Harbor during the event.

The City of Salem is holding a fireworks display to honor the nations military troops on July 4, 2003. This regulation establishes a safety zone in Salem Harbor around the center of Derby Wharf within a 400-yard radius of the fireworks launch site located at 42°31′04.5″ N, 70°53′05″ W. The safety zone will be enforced from 8 p.m. until 10 p.m. on July 4, 2003.

This safety zone is necessary to protect the life and property of the maritime public from the dangers posed by this event. It will protect the public by prohibiting entry into or movement within this portion of Salem Harbor. No vessel may enter the temporary safety zone without permission of the Captain of the Port Boston, Massachusetts.

This action is intended to restrict vessel traffic in a portion of Salem Harbor in the vicinity of Derby Wharf to provide for the protection of life and property of the maritime public. The safety zone will be enforced from 8 p.m. until 10 p.m. on July 4, 2003. Marine traffic may transit safely outside of the safety zone in the majority of Salem Harbor during the event.

Because of its limited time duration and because the temporary safety zone leaves the majority of Salem Harbor open for navigation, the Captain of the Port anticipates minimal negative impact on vessel traffic due to this event. Public notifications will be made prior to the effective period via Local Notice to Mariners and marine information broadcasts.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS)(44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this rule to be minimal enough that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this rule will prevent traffic from transiting a portion of Salem Harbor during the effective periods, the effects of this rule will not be significant for several reasons: Vessels will only be excluded from the area of the temporary safety zone for 2 hours, vessels will be able to operate in the majority of Salem Harbor during this time, and advance notifications will be made to the local maritime community via marine information broadcasts and Local Notice to Mariners.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the vicinity of Derby Wharf in Salem Harbor on July 4, 2003. This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons described under the Regulatory Evaluation section.

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.

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 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) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal government having first provided the funds to pay those costs. This rule would not impose an unfunded mandate.

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

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

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

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

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) was not published for this regulation. Good cause exists for not publishing a NPRM and for making this regulation effective in less than 30 days after Federal Register publication. Information about this event was not provided to the Coast Guard until May 20, 2003, making it impossible to draft or publish an NPRM or a final rule 30 days in advance of its effective date. Any delay encountered in this regulation's effective date would be contrary to public interest since immediate action is needed to prevent traffic from transiting and provide for the safety of life on navigable waters of the portion of the Charles River, Boston, Massachusetts, affected by the fireworks display. The zone should have minimal negative impact on vessel use of the Charles River because vessels will only be excluded from the area of the safety zone for 4 and one half hours and will be able to operate in other areas of the river during this time.

Boston's Fourth of July is holding a fireworks display to celebrate the July 4th holiday. This rule establishes a safety zone on the waters of the Charles River within a four hundred (400) yard radius around the fireworks launch site located midway between the Longfellow and Massachusetts Avenue Bridges, specifically at 42°21.28′ N, 071°05.00′ W. All coordinates are North American Datum 1983.

This safety zone is necessary to protect the life and property of the maritime public from the dangers posed by this event. It will protect the public by prohibiting entry into or movement within this portion of the Charles River.

The safety zone is in effect from 7 p.m. until 11:30 p.m. July 4, 2003. Marine traffic may transit safely outside of the safety zone during the event thereby allowing navigation of the entire river except for the portion delineated by this rule.

Due to the size of the river and the size of this safety zone, the Captain of the Port anticipates minimal negative impact on vessel traffic due to this event. Public notifications will be made prior to the effective period via local media, local notice to mariners and marine information broadcasts.

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

The Coast Guard expects the economic impact of this rule to be minimal enough that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

Although this rule prevents vessel traffic from transiting into a portion of the Charles River during this event, the effect of this rule will not be significant for several reasons: Vessels will only be excluded from the area of the safety zone for 4 and one half hours; although vessels will not be able to transit up and down the river in the vicinity of the zone, they will be able to operate in other areas of the river during this time; and advance notifications will be made to the local maritime community by marine information broadcasts and Local Notice to Mariners.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Charles River from 7 p.m. until 11:30 p.m. July 4, 2003. This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons described under the Regulatory Evaluation section.

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 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) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government having first provided the funds to pay those costs. This rule would not impose an unfunded mandate.

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

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

The Coast Guard 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 pose an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. A rule with tribal implications has a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

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

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

Regulatory Information

We did not publish a notice of proposed rule making (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a Notice of Proposed Rulemaking (NPRM). Publishing a NPRM and delaying the effective date of this rule would be contrary to national security since immediate action is necessary to protect the public, ports and waterways of the United States.

For the same reasons, 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 .

Based on the September 11, 2001, terrorist attack on the World Trade Center in New York and the Pentagon in Arlington, VA, there is an increased risk that subversive terrorist activity could be launched by vessels or persons in close proximity to the Port of Charleston, S.C., against bridges within the security zones continued by this rule. If a bridge were damaged or destroyed, the Port of Charleston would be isolated from access to the sea, crippling the local economy and negatively impacting national security. These temporary security zones are necessary to protect the safety of life and property on the navigable waters, prevent potential terrorist threats aimed at the bridges crossing the main shipping channels in the Port of Charleston, SC and to ensure the continued unrestricted access to the sea from the Port.

A similar temporary rule was issued on October 18, 2001 creating temporary security zones around these bridges that rule expired on January 15, 2002 ( see COTP Charleston 01-124 in Quarterly Report of temporary rules, 67 FR 9194, February 28, 2002). Those security zones were extended by another temporary rule published on February 28, 2002 (67 FR 9201) that expired on June 15, 2002. Those security zones were again extended by a temporary rule published in the Federal Register on July 3, 2002 (67 FR 44555) which expired on December 16, 2002. These security zones were again extended by a temporary rule published in the Federal Register on December 16, 2002 (67 FR 76991) and will expire on July 15, 2003.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this rule to be so minimal so that a full Regulatory Evaluation under the regulating policies and procedures of DHS is unnecessary. The limited geographic area impacted by the security zones will not restrict the movement or routine operation of commercial or recreational vessels through the Port of Charleston. Also, an individual may request a waiver of these regulations from the Coast Guard Captain of the Port.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this rule would have a significant economic effect 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 because the limited geographic area encompassed by the security zones will not restrict the movement or routine operation of commercial or recreational vessels through the Port of Charleston. Also, an individual may request a waiver of these regulations from the Coast Guard Captain of the Port of Charleston.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that preparation of an Environmental Impact Statement is not necessary. A “Environmental Assessment” and a “Finding of No Significant Impact” are available in the docket where indicated under ADDRESSES.

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

• Crop production (NAICS 111)

• Animal production (NAICS 112)

• Food manufacturing (NAICS 311)

• Pesticide manufacturing (NAICS 32532)

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

1. Docket . EPA has established an official public docket for this action under docket identification (ID) number OPP-2003-0154. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

2. Electronic access . You may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr180_00.html, a beta site currently under development.

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

In the Federal Register of March 7, 2003 (68 FR 11100) (FRL-7285-8), EPA issued a notice pursuant to section 408 of the FFDCA, 21 U.S.C. 346a, as amended by FQPA (Public Law 104-170), announcing the filing of a pesticide tolerance petition (PP 0G6112) by Mycogen Seeds c/o Dow AgroSciences LLC, 9330 Zionsville Road, Indianapolis, IN 46268-1054. This notice included a summary of the petition prepared by the petitioner Mycogen Seeds c/o Dow AgroSciences LLC. The docket, OPP-2002-0350, cited in the notice contained the petition. However, the administrative pesticide petition number cited in the notice (PP 0G6112) was incorrect. The correct number is PP 1G6279. There was one comment received in response to the notice of filing by the Center for Science in the Public Interest (CSPI).

The major focus of the comments from CSPI is on the results of tests done to establish the sensitivity of the Cry34Ab1 protein to pepsin degradation. CSPI contests the interpretation of the results provided by Dow AgroSciences that indicate the Cry34Ab1 degrades under the influence of pepsin. CSPI asserts that EPA cannot make a safety determination in light of these results and international consensus on how to address allergenicity as stated in the Food and Agricultural Organization/World Health Organization (FAO/WHO) expert consultation. Specifically, CSPI claims use of a less sensitive protein detection method, a pH of 1.2 instead of 2.0 for the pepsin buffer solution and a low concentration of the Cry34Ab1 protein in the assays were all utilized to achieve the results. CSPI suggests that all these features combine to artificially skew the results of the pepsin assay to show that Cry 34Ab1 is readily broken down by pepsin. CSPI suggests that the Cry34Ab1 protein is stable to gastric fluid breakdown since it is visible on Coomassie blue stained gels at 7 to 10 minutes of pepsin incubation. CSPI also claims that the initial Dow AgroScience data using a more sensitive Western blot assay clearly show the protein present at the 20 to 30 minute sample and that this endpoint is scientifically agreed upon to indicate resistance to pepsin degradation. CSPI recognizes that the total dietary exposure to the Cry34Ab1 protein likely to occur during an experimental use permit would not be expected to induce an allergic reaction and that there is still considerable scientific controversy around the determination of potential allergenicity of a protein new to the food supply. Finally, CSPI states that a test to determine potential allergenicity is still needed and, in the interim, acceptable standards for performing the currently available tests are provided by the FAO/WHO report on Evaluation of Allergenicity of Genetically Modified Foods (Rome, 2001).

EPA agrees that there is still the need to develop definitive tests to assess potential allergenicity and that the currently employed tests need to follow standardized procedures. EPA also agrees that no single criterion of those currently utilized can alone be an indication of potential allergenicity. However, EPA would suggest that, while the guidance given by the 2001 FAO/WHO report is invaluable, there is still no consensus on how to implement several of the tests suggested in the FAO/WHO guidance nor any direction given as to critical endpoints for the tests suggested. This lack of consensus was confirmed by a CODEX ad hoc working group on allergenicity which met in Vancouver, Canada in September 2001, to consider the advice of the FAO/WHO expert consultation report from Rome 2001. This CODEX group found that, without development and implementation of the new tests suggested by FAO/WHO expert consultation, the current weight of evidence approach provides essentially the same information for judging allergenicity as that suggested by the 2001 FAO/WHO report. This advice has been incorporated into the latest version of the CODEX food safety assessment for genetically engineered foods. (CODEX, ftp://ftp.fao.org/codex/alinorm03/Al03_34e.pdf)

The current criteria used by EPA to judge allergenicity include amino acid sequence similarity analyses, stability to heat, and enzymatic degradation. The Cry34Ab1 protein does not share significant amino acid similarity with known allergens either on a whole sequence level or on the eight amino acid stepwise comparisons, nor does the Cry34Ab1 protein appear to be stable to temperatures above 90 °C. The initial data reported from the company indicated that one of the two proteins, Cry34Ab1, was moderately resistant to the action of pepsin by still being detectable on an SDS-PAGE western blot at 20-30 minutes. EPA questioned the results found in the initial submission on pepsin degradation and requested more information.

In the absence of a definitive endpoint for determining the pepsin resistance of a given protein, the initial results reported by Dow were not conclusive. The 2001 Rome FAO/WHO expert consultation report specifically does not mention a time endpoint for pepsin degradation of a protein other than the protein or a significant sized fragment being present at the final endpoint of 60 minutes. The literature references CSPI itself provided cite a range of values for pepsin stability ranging from 8 minutes to 2 hours and demonstrate a lack of consensus on pepsin resistance. EPA would therefore disagree with CSPI that there is a scientific consensus on visible protein bands in an SDS PAGE assay at 20 to 30 minutes indicating pepsin stability.

Dow AgroScience's second submission presents results that indicate more rapid breakdown than the initial data. Dow AgroScience's approach where enzymatic degradation is expressed as a kinetic rate instead of a definitive substrate disappearance endpoint makes the results less variable since the sensitivity of the detection system does not affect the final result. This is because the pepsin activity can be expressed as a rate constant, an endpoint that is not dependent on the sensitivity of the detection system, is substrate concentration independent and is the classical method used by protein chemists to determine enzyme activity or in this case substrate disappearance. While this method may not be the final iteration of the pepsin degradation assay, EPA believes that an analysis that lessens assay variability and makes the results independent of the sensitivity of the detection method is an improvement.

EPA finds that the literature references CPSI cited are diametrically opposed in their view of the usefulness of the pepsin degradation assay for prediction of allergenicity (Ref. 1). The Astwood et al. paper shows that, while lowering the pepsin concentration can lead to the appearance of fragments in an otherwise rapidly degraded protein, the pepsin assay is a good predictor of allergenicity (Ref. 1). The Fu et al. paper indicates that both allergens and non-allergens can be stable to pepsin activity so the assay is not predictive (Ref. 2). Both papers emphasize that protein doses, pepsin concentrations, and assay conditions should be equivalent when comparing proteins. Neither paper suggests a definitive timepoint that could be interpreted as indicating protein stability to pepsin. The Fu et al. paper in fact suggests that allergens and non-allergens can both be either resistant to or degraded by pepsin. The final conclusion in the Fu paper is that the pepsin sensitivity assay alone has no predictive value for allergenicity. EPA does not agree with this position but does agree that pepsin stability alone is not a sole criterion to be used for an allergenicity assessment.

EPA agrees with CSPI that the tests used to determine potential allergenicity need standardization and supports efforts in that area. EPA believes that there is sufficient data available, considering all information on the Cry34Ab1 protein, to make a finding that there is a reasonable certainty that no harm will result from the aggregate exposure to the Cry34Ab1 and Cry35 Ab1 proteins as expressed in corn.

The petition requested that 40 CFR part 180 be amended by establishing a temporary exemption from the requirement of a tolerance for residues of the plant-incorporated protectants Bacillus thuringiensis Cry34Ab1/Cry35Ab1 proteins and the genetic material necessary for their production in corn in or on corn. The Mycogen/Dow AgroSciences and Pioneer Hi-Bred experimental use permits associated with the petition are 68467-EUP-3, 68467-EUP-5, 68467-EUP-T(7), 68467- EUP-I(8), 29964-EUP-1, 29964-EUP-3, 29964-EUP-U(4), and 29964-EUP-L(5)

Section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, section 408(b)(2)(D) of the FFDCA requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues and other substances that have a common mechanism of toxicity.”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Data have been submitted demonstrating the lack of mammalian toxicity at high levels of exposure to pure Cry34Ab1/Cry35Ab1 proteins. These data demonstrate the safety of the products at levels well above maximum possible exposure levels that are reasonably anticipated in the crops. This is similar to the Agency position regarding toxicity and the requirement of residue data for microbial pesticides. See 40 CFR 158.740(b)(2)(i). For microbial products, further toxicity testing and residue data are triggered by significant acute effects in studies such as the mouse oral toxicity study, to verify the observed effects and clarify the source of these effects (Tiers II and III).

The acute oral toxicity data submitted support the prediction that the Cry34Ab1 and Cry35Ab1 proteins would be non-toxic to humans. The test substance was administered to five female and five male mice (5,000 milligrams/kilogram (mg/kg) body weight)) in a 1:4.6 mixture of the two proteins, 14 kDa and 44 kDa. A single dose gavage (25 milliliter/kilogram (mL/kg)) delivered as a 20% mixture in 0.5% methycellulose. All animals survived the 2-week study. One female mouse exhibited protruding or bulging eyes on days 6 and 7, but this resolved thereafter. This observation was not attributed to the treatment as it was an isolated observation (i.e., no other animals exhibited this). No other clinical signs were noted for any animals during the study. An initial weight loss was observed in two mice at test days 1 and 2, but both gained weight for the remainder of the study. All other animals gained weight throughout the study. No gross treatment related observations were recorded during the study as represented by gross pathologic observations. An acute oral LD 50 was calculated for this study based upon a dosage of a 1:4.6 ratio mixture of Cry34Ab1 (54% pure) and Cry35Ab1 (37% pure) proteins at greater than 5,000 mg/kg, and greater than 2,000 mg/kg for an equimolar mixture (1:3) of the pure proteins.

When proteins are toxic, they are known to act via acute mechanisms and at very low dose levels (Ref. 3). Therefore, since no acute effects were shown to be caused by the plant-incorporated protectants, even at relatively high dose levels, the Cry34Ab1 and Cry35Ab1 proteins are not considered toxic.

Since Cry34Ab1 and Cry35Ab1 are proteins, allergenic sensitivities were considered. Current scientific knowledge suggests that common food allergens tend to be resistant to degradation by heat, acid, and proteases, may be glycosylated and present at high concentrations in the food. Data have been submitted that demonstrate that the Cry34Ab1 and Cry35Ab1 proteins are rapidly degraded by gastric fluid in vitro and are non-glycosylated. Two in vitro digestibility studies were conducted to determine the lability of the Cry34Ab1 and Cry35Ab1 proteins in an acid environment containing pepsin. In the first in vitro digestibility study, 1 microgram (μg) of the 14 kDa protein (Cry34Ab1) were loaded and was visible on the SDS-PAGE gel up to the 15 minute sample point and on the Western blot, which has greater sensitivity, up to the 20 minute time point. Two micrograms of the 44 kDa protein (Cry35Ab1) was loaded on the SDS gel. A single band was observed on the 44 kDa SDS-PAGE at approximately 15 to 16 kDa. Western blot bands were observed at approximately 42 kDa and 14 kDa. These bands were only observed at the one minute time point, but not afterwards. It was concluded that both proteins are susceptible to degradation in the simulated gastric environment, but that the Cry35Ab1 was more rapidly degraded. In the second in vitro digestibility study, the digestibility of Cry34Ab1 was further investigated and enzyme kinetics were used in evaluating the data. In this study, 0.36 μg of the protein was loaded in the SDS gel. The protein appears to have approached full degradation by 7.5 minutes. Volumes remaining at the 10 and 15 minute time points were excluded from the calculations since they were below background levels. Using this first order decay model, the DT50 and DT90 for this protein in the simulated gastric fluid GF were estimated to be 1.9 and 6.2 minutes, respectively. The Cry34Ab1 protein is rapidly degraded in the simulated gastric fluid using this assay and detection methodology. The conditions of the assay are biologically appropriate in temperature, pH, and chemical makeup of the digestive solution. The first order decay rate kinetics accurately portray the digestion of Cry34Ab1.

Submitted studies regarding heat stability of the Cry34Ab1 and Cry35Ab1 proteins demonstrate that these proteins are inactivated at ≤90 °C and ≤60 °C, respectively. A comparison of amino acid sequences of known allergens uncovered no evidence of any homology with Cry34Ab1 or Cry35Ab1, even at the level of 8 contiguous amino acids residues. The potential for the Cry34Ab1 and Cry35Ab1 proteins to be food allergens is minimal.

Regarding toxicity to the immune system, the acute oral toxicity data submitted support the prediction that the Cry34Ab1 and Cry35Ab1 proteins would be non-toxic to humans. When proteins are toxic, they are known to act via acute mechanisms and at very low dose levels (Ref. 3). Therefore, since no effects were shown to be caused by the plant-incorporated protectants, even at relatively high dose levels, the Cry34Ab1 and Cry35Ab1 proteins are not considered toxic.

In examining aggregate exposure, section 408 of the FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

Exposure via the skin or inhalation is not likely since the plant-incorporated protectant is contained within plant cells, which essentially eliminates these exposure routes or reduces these exposure routes to negligible. Oral exposure, at very low levels, may occur from ingestion of processed corn products and, potentially, drinking water. However a lack of mammalian toxicity and the digestibility of the plant-incorporated protectants have been demonstrated. The use sites for the Cry34Ab1 and Cry35Ab1 proteins are all agricultural for control of insects. Therefore, exposure via residential or lawn use to infants and children is not expected. Even if negligible exposure should occur, the Agency concludes that such exposure would present no risk due to the lack of toxicity demonstrated for the Cry34Ab1 and Cry35Ab1 proteins.

Pursuant to FFDCA section 408(b)(2)(D)(v), EPA has considered available information on the cumulative effects of such residues and other substances that have a common mechanism of toxicity. These considerations included the cumulative effects on infants and children of such residues and other substances with a common mechanism of toxicity. Because there is no indication of mammalian toxicity to these plant-incorporated protectants, we conclude that there are no cumulative effects for the Cry34Ab1 and Cry35Ab1 proteins.

The data submitted and cited regarding potential health effects for the Cry34Ab1 and Cry35Ab1 proteins include the characterization of the expressed Cry34Ab1 and Cry35Ab1 proteins in corn, as well as the acute oral toxicity, heat stability, and in vitro digestibility of the proteins. The results of these studies were determined applicable to evaluate human risk and the validity, completeness, and reliability of the available data from the studies were considered.

Adequate information was submitted to show that the Cry34Ab1 and Cry35Ab1 test materials derived from microbial cultures were biochemically and functionally similar to the protein produced by the plant-incorporated protectant ingredients in corn. Production of microbially produced protein was chosen in order to obtain sufficient material for testing.

The acute oral toxicity data submitted support the prediction that the Cry34Ab1 and Cry35Ab1 proteins would be non-toxic to humans. When proteins are toxic, they are known to act via acute mechanisms and at very low dose levels (Ref. 3). Since no treatment-related adverse effects were shown to be caused by Cry34Ab1 and Cry35Ab1 proteins, even at relatively high dose levels (greater than 5,000 mg/kg based upon a dosage of a 1:4.6 ratio mixture of (54% pure) Cry34Ab1 and (37% pure) Cry35Ab1 proteins and greater than 2,000 mg/kg for an equimolar mixture (1:3) of the pure proteins), the Cry34Ab1 and Cry35Ab1 proteins are not considered toxic. This is similar to the Agency position regarding toxicity and the requirement of residue data for the microbial Bacillus thuringiensis products from which this plant-incorporated protectant was derived. See 40 CFR 158.740(b)(2)(i). For microbial products, further toxicity testing and residue data are triggered by significant acute effects in studies such as the mouse oral toxicity study to verify the observed effects and clarify the source of these effects (Tiers II and III).

Although Cry34Ab1 and Cry35Ab1 expression level data were submitted, residue chemistry data were not required for a human health effects assessment of the subject plant-incorporated protectant ingredients because of the lack of mammalian toxicity. Both: (1) Available information concerning the dietary consumption patterns of consumers (and major identifiable subgroups of consumers including infants and children); and (2) safety factors which, in the opinion of experts qualified by scientific training and experience to evaluate the safety of food additives, are generally recognized as appropriate for the use of animal experimentation data were not evaluated. The lack of mammalian toxicity at high levels of exposure to the Cry34Ab1 and Cry35Ab1 proteins demonstrates the safety of the product at levels well above possible maximum exposure levels anticipated in the crop.

The genetic material necessary for the production of the plant-incorporated protectant active ingredients are the nucleic acids (DNA, RNA) which comprise genetic material encoding these proteins and their regulatory regions. The genetic material (DNA, RNA) necessary for the production of Cry34Ab1 and Cry35Ab1 proteins in corn have been exempted under the blanket exemption for all nucleic acids (40 CFR 174.175).

FFDCA section 408(b)(2)(C) provides that EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity. In addition, FFDCA section 408(B)(2)(C) also provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database unless EPA determines that a different margin of safety will be safe for infants and children.

In this instance, based on all the available information, the Agency concludes that there is a finding of no toxicity for the Cry34Ab1 and Cry35Ab1 protein and the genetic material necessary for their production. Thus, there are no threshold effects of concern and, as a result, the provision requiring an additional margin of safety does not apply. Further, the provisions of consumption patterns, special susceptibility, and cumulative effects do not apply.

There is a reasonable certainty that no harm will result from aggregate exposure to the U.S. population, including infants and children, to the Cry34Ab1 and Cry35Ab1 proteins and the genetic material necessary for their production. This includes all anticipated dietary exposures and all other exposures for which there is reliable information. The Agency has arrived at this conclusion because, as discussed above, no toxicity to mammals has been observed for the plant-incorporated protectants.

The pesticidal active ingredients are proteins, derived from sources that are not known to exert an influence on the endocrine system. Therefore, the Agency is not requiring information on the endocrine effects of these plant-incorporated protectants at this time.

A validated method for extraction and direct enzyme linked immunosorbent assay analysis of Cry34Ab1 in corn grain has been submitted and found acceptable by the Agency.

No Codex maximum residue levels exists for the plant-incorporated protectants Bacillus thuringiensis Cry34Ab1 and Cry35Ab1 proteins and the genetic material necessary for their production in corn.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2003-0154 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 5, 2003.

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

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VIII.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.1. Mail your copies, identified by docket ID number OPP-2003-0154, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.1. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

1. Astwood J.D., Leach, J.N. and Fuch, R.L. (1996) “Stability of Food Allergens to Digestion In Vitro .” Nature Biotech . 14:1269-1273.

2. Fu, T-J, Abbott, U.R., Hatzos, C. (2002) “Digestibility of Food Allergens and Nonallergenic Proteins in Simulated Gastric Fluid and Simulated Intestinal Fluid - A Comparative Study.” J. Agric. Food Chem . 50:7154-7160.

3. Sjoblad, Roy D., et al. (1992) “Toxicological Considerations for Protein Components of Biological Pesticide Products.” Regulatory Toxicology and Pharmacology 15L, 3-9.

This final rule establishes an exemption from the tolerance requirement under section 408(d) of the FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of the FFDCA, such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

This is a summary of the Commission's Order clarifying issues in the Third Order on Reconsideration and Second Further Notice of Proposed Rulemaking in CC Docket No. 94-129, FCC 03-42, released March 17, 2003 and published in the Federal Register on April 18, 2003 (68 FR 19152). The full text of this document is available on the Commission's website Electronic Comment Filing System and for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554.

1. In this Order, we clarify certain issues pertaining to the Third Order on Reconsideration and Second Further Notice of Proposed Rulemaking ( Reconsideration Order ) in the above-captioned proceeding. In the Reconsideration Order , we addressed issues raised in petitions for reconsideration of a series of orders implementing section 258 of the Communications Act of 1934 (Act), as amended by the Telecommunications Act of 1996 (1996 Act). Section 258 makes it unlawful for any telecommunications carrier to “submit or execute a change in a subscriber's selection of a provider of telephone exchange service or telephone toll service, except in accordance with such verification procedures as the Commission shall prescribe.” Since the release of the Reconsideration Order , several parties have requested that the Commission clarify a portion of that order concerning the carrier change verification responsibilities of local exchange carriers (“LECs”).

2. Prior to the adoption of the Reconsideration Order , in the Second Report and Order the Commission found that all changes to a subscriber's preferred carrier, including local exchange, intraLATA toll, and interLATA toll services, must be authorized by the subscriber and verified in accordance with the Commission's procedures. In addition, the Commission found in the Second Report and Order that its rules concerning customer verification of preferred carrier change requests should apply to “in-bound” as well as “out-bound” calls, stating that “it serves the public interest to offer consumers who initiate calls to carriers the same protection under the verification rules as those consumers who are contacted by carriers.” However, the Commission at that time declined to require verification of long distance carrier changes in instances when a customer contacts a LEC directly to effect the change. The Commission noted that, under those circumstances, the LEC is not providing interexchange service to the subscriber.

3. In the Reconsideration Order , however, we recognized that, since the adoption of the Second Report and Order , “many LECs have become (or plan to become) long distance service providers.” We stated that, given the proliferation of customers that are now or may soon be served by LECs that also provide interexchange services, it was necessary to require verification of long distance carrier change requests that occur when a customer initiates a call to a LEC. The Commission stated that such verification was necessary in order to deter slamming and as such furthered the goals of section 258.

4. BellSouth, Qwest, SBC Telecommunications, Inc. and Verizon (“Joint LECs”) seek clarification that the Commission, in the Reconsideration Order , “merely intended to confirm that customer calls to the LEC to make a carrier change benefiting the LEC or, more specifically, its long distance affiliates, must be verified pursuant to existing Commission verification rules.” The Joint LECs ask the Commission to clarify that the verification rules do not apply in situations when a subscriber asks a LEC to effect a change to their presubscribed carrier, and the new carrier is neither the LEC itself nor an affiliate of the LEC.

5. As noted previously, in the Second Report and Order , the Commission initially excluded from the verification rules requests for long distance carrier changes by customers that contact LECs directly, because “the LEC is not providing interexchange service to [the] subscriber.” However, in the Reconsideration Order , we stated that “[d]ue to the changes in the competitive landscape that have come to fruition since the adoption of the Second Report and Order , and based on our experiences therewith, we now find it necessary, as with other in-bound carrier change calls, to require verification of carrier change requests that occur when a customer initiates a call to a LEC.” We clarify here that such verification by a LEC is required only when the carrier change involves the LEC or an affiliate of the LEC. In-bound customer requests to change long distance carriers, made directly to a LEC, remain exempted in cases where the LEC or its long distance affiliate is not the subject of the long distance carrier change. We agree with the Joint LECs that the Reconsideration Order requires verifications of carrier changes involving the LEC or its affiliates. This is consistent with out statement in the Second Report and Order that our decision to apply the verification rules to certain inbound calls was especially necessary “as carriers begin combining services to market to consumers, such as intraLATA and interLATA toll services.”

6. Pursuant to sections 1, 4(i), 258 and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 258 and 303(r), this Order is adopted, and is effective as of its release on May 23, 2003.

This is a synopsis of the Commission's Report and Order, MB Docket No. 03-88, June 18, 2003, and released June 23, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This is a synopsis of the Commission's Report and Order, MB Docket No. 03-68, adopted June 18, 2003, and released June 20, 2003. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This is a synopsis of the Commission's Report and Order, MB Docket No. 03-55, adopted June 18, 2003, and released June 20, 2003. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This is a summary of the Commission's Report and Order, MB Docket No. 03-85, adopted June 18, 2003, and released June 23, 2003. The full text of this Commission decision is available for inspection and copying during regular business hours in the FCC's Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-175, adopted June 18, 2003, and released June 23, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20054.

Channel 282A can be reallotted to Fletcher in compliance with the Commission's minimum distance separation requirements with a site restriction of 12.8 kilometers (8.0 miles) north at petitioners' requested site. The coordinates for Channel 282A at Fletcher are 35-32-28 North Latitude and 82-32-32 West Longitude. The coordinates for Channel 260C at Old Fort are 35-25-32 North Latitude and 82-45-25 West Longitude. Additionally, the modified reference coordinates for Channel 282A at Surgoinsville are 36-33-11 North Latitude and 82-51-23 West Longitude; and the modified reference coordinates for Channel 282C at Augusta are 33-34-24 North Latitude and 81-54-17 West Longitude.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

This is a synopsis of the Commission's Report and Order, MM Docket No. 02-56, adopted June 18, 2003, and released June 20, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractors, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This Federal Register document is available on the Government Printing Office′s website at: http://www.access.gpo.gov/su_docs/ca/docs/aces/aces140.html . Background information and documents are available at the NMFS Northwest Region website at: http://www.nwr.noaa.gov/1sustfsh/gdfsh01.htm and at the Pacific Fishery Management Council's website at: http://www.pcouncil.org .

The Pacific Coast Groundfish FMP and its implementing regulations at 50 CFR part 660, subpart G, regulate fishing for over 80 species of groundfish off the coasts of Washington, Oregon, and California. Annual groundfish specifications and management measures are initially developed by the Pacific Fishery Management Council (Pacific Council), and are implemented by NMFS. The specifications and management measures for the 2003 fishing year (January 1 - December 31, 2003) were initially published in the Federal Register as an emergency rule for January 1 - February 28, 2003 (68 FR 908, January 7, 2003) and as a proposed rule for March 1 - December 31, 2003 (68 FR 936, January 7, 2003). The emergency rule was amended at 68 FR 4719, January 30, 2003, and the final rule for March 1 - December 31, 2003 was published in the Federal Register on March 7, 2003 (68 FR 11182). The final rule has been subsequently amended at 68 FR 18166 (April 15, 2003), at 68 FR 23901 (May 6, 2003), at 68 FR 23924 (May 6, 2003), and at 68 FR 32680 (June 2, 2003).

The following changes to current groundfish management measures were recommended by the Pacific Council, in consultation with Pacific Coast Treaty Tribes and the States of Washington, Oregon, and California, at its June 16-20, 2003, meeting in Foster City, CA. Pacific Coast groundfish landings will be monitored throughout the year, and further adjustments will be made as necessary to allow achievement of or avoid exceeding the 2003 optimum yields (OYs) and allocations.

When the 2003 specifications and management measures were developed for the Pacific Coast groundfish fishery in the fall of 2002, the Pacific Council's Groundfish Management Team (GMT) developed a bycatch scorecard to project and track estimated mortality of overfished groundfish species during 2003. This scorecard is updated throughout the year as catch data become available. At the Pacific Council's June meeting, the scorecard was updated for canary rockfish, an overfished species, with catch data based on projected harvest under inseason adjustments for the May - June cumulative period, catch in Oregon's recreational fishery, catch under Washington's spiny dogfish shark and walleye pollock exempted fishing permits (EFPs), and information on vessel participation and target species by depth from 2002 fish tickets and logbooks. Based on these data, an additional 3.5 mt of canary rockfish is available to be harvested as incidental catch, in order to allow the access to more abundant species, during 2003 without exceeding the canary rockfish OY.

In order to provide additional fishing opportunity for the trawl fishery that has been severely restricted to reduce the incidental catch of canary rockfish, the size of the trawl RCA (the area closed to most fishing with trawl gear) is being decreased during the months of July and August. At their April 7-11, 2003, meeting in Vancouver, WA, the Pacific Council recommended that preliminary observer-based trawl bycatch rates be incorporated into the bycatch model used to develop inseason adjustments to trip limits and area closures. These observer-based trawl bycatch rates indicated that canary rockfish bycatch in the trawl fishery north of 40°10′ N. lat. is higher than previously estimated. Based on that new information, in May 2003, the trawl RCA was shifted to better align with areas where canary rockfish were encountered (between latitude and longitude coordinates that approximate the 50-fm (91-m) and 200-fm (366-m) depth contours) to slow that catch of canary rockfish. Using 2.85 mt (2,850 kg) of the additional 3.5 mt (3,500 kg) of canary rockfish available for harvest during 2003, this inseason action will restore trawl fishing opportunity by returning the eastern trawl RCA boundary to latitude and longitude coordinates approximating the 75-fm (137-m) depth contour. In addition to providing fishing opportunity, moving the eastern trawl RCA boundary out into deeper waters during July and August is expected to decrease interactions between the trawl fleet and molting, soft-shelled Dungeness crab found shoreward of 50-fm (91-m). In short, during the months of July and August, the trawl RCA will extend between latitude and longitude coordinates approximating the 75-fm (137-m) and 200-fm (366-m) depth contours. During the months of September - December, the trawl RCA will remain as previously scheduled, extending between coordinates approximating the 50-fm (91-m) and 200-fm (366-m) depth contours, with a western boundary modified to incorporate petrale fishing areas during November and December.

In the final rule announcing Pacific Coast annual specifications and management measures for March - December (68 FR 11182, March 7, 2003), a correction was made to the 75-fm (137-m) RCA boundary to prevent it from intersecting with the 100-fm (183-m) RCA boundary north of 40°10′ N. lat. This correction proved to be too coarse, resulting in the 75-fm (137-m) RCA boundary not closely following the 75-fm (137-m) depth contour in one section of the coast off Washington. Therefore, this inseason action will also correct the 75-fm (137-m) RCA boundary to better align it with the 75-fm (137-m) depth contour.

In an effort to provide for fishing opportunity along the coast while keeping groundfish species within their respective 2003 OYs, the Pacific Council recommended trip limit adjustments for the DTS fishery. The GMT and the Pacific Council's Groundfish Advisory Panel (GAP) weighed the expected catch of canary rockfish and DTS species associated with previously scheduled DTS trip limits and RCA boundaries against the expected catch of canary rockfish and DTS species associated with moving the eastern boundary of the trawl RCA south of 40°10′ N. lat. into deeper water (discussed below) when making DTS trip limit adjustments. Their goal was to provide adequate fishing opportunity while keeping the harvest of DTS species on track for the year and keeping the total mortality of canary rockfish within amounts forecast in the bycatch scorecard and within the canary rockfish OY.

Landed catch data through May 24, 2003, indicate that sablefish trawl catch was at 28 percent of the annual target with greater than 50 percent forecast to be taken within the last half of the year. There is a great deal of uncertainty in observer-based discard rates for sablefish. Should the final analysis of the observer-based discard rates result in higher estimates being used in 2003, the calculated harvest of sablefish may be greater than currently projected. Because new observer data will be available in September, the Pacific Council chose to slow the catch of sablefish during July and August, to ensure harvest opportunities through the end of the year, with the intent of increasing sablefish trawl trip limits later in the year, if possible. Therefore, the limited entry trawl sablefish limit north of 40°10′ N. lat. is decreased from the previously scheduled limit of 10,000 lb (4,536 kg) per 2 months to 9,000 lb (4,082 kg) per 2 months, providing that only large footrope or midwater trawl gear is used to land any groundfish species during the entire limit period. The limited entry small footrope trawl sablefish limit, (i.e., if small footrope gear is used at any time in any area (north or south, seaward or shoreward of the RCA) during the entire limit period) remains unchanged at 3,000 lb (1,361 kg) per 2 months. South of 40°10′ N. lat., the limited entry trawl sablefish limit is decreased from the previously scheduled limit of 12,000 lb (5,443 kg) per 2 months to 9,000 lb (4,082 kg) per 2 months.

Landed catch data through May 24, 2003, indicate that Dover sole catch was at 38 percent of the annual target. North of 40°10′ N. lat., the Pacific Council recommended that Dover sole trip limits increase to allow for Dover sole retention by those vessels fishing seaward of the RCA. South of 40°10′ N. lat., Dover sole limits were previously scheduled to increase during July and August in compensation for lack of nearshore fishing opportunity. Because nearshore fishing opportunity was restored by moving the eastern trawl RCA boundary into deeper water, Dover sole trip limits were decreased to minimize the incidental catch of overfished species. Therefore, the limited entry trawl Dover sole limit north of 40°10′ N. lat. is increased from the previously scheduled limit of 31,000 lb (14,061 kg) per 2 months to 34,000 lb (15,513 kg) per 2 months, providing that only large footrope or midwater trawl gear is used to land any groundfish species during the entire limit period. The limited entry small footrope trawl Dover sole limit, (i.e., if small footrope gear is used at any time in any area (north or south, seaward or shoreward of the RCA) during the entire limit period) remains unchanged at 12,500 lb (5,670 kg) per 2 months. South of 40°10′ N. lat., the limited entry trawl Dover sole limit is decreased from the previously scheduled limit of 35,000 lb (15,876 kg) per 2 months to 34,000 lb (15,513 kg) per 2 months.

Landed catch data indicate that shortspine thornyhead catch is higher than expected (44 percent of the annual target through May 24, 2003). Shortspine thornyhead is a long-lived species that cannot sustain aggressive harvest rates. This makes it a constraining species for the DTS complex fishery, because coincidental catch of shortspine thornyhead may prevent the harvest of Dover sole and longspine thornyhead. In order to keep the shortspine thornyhead catch within its 2003 OY while allowing for shortspine thornyhead retention during pursuit of sablefish or Dover sole with small footrope trawl gear, the Pacific Council recommended an adjustment to shortspine thornyhead trip limits. Therefore, the limited entry trawl shortspine thornyhead limit north of 40°10′ N. lat. is decreased from the previously scheduled limit of 2,800 lb (1,270 kg) per 2 months to 2,400 lb (1,089 kg) per 2 months, providing that only large footrope or midwater trawl gear is used to land any groundfish species during the entire limit period. The limited entry small footrope trawl shortspine thornyhead limit, (i.e., if small footrope gear is used at any time in any area (north or south, seaward or shoreward of the RCA) during the entire limit period) is increased from the previously scheduled zero retention limit to 1,000 lb (454 kg) per 2 months. South of 40°10′ N. lat., the limited entry trawl shortspine thornyhead limit is decreased from the previously scheduled limit of 3,100 lb (1,406 kg) per 2 months to 2,400 lb (1,089 kg) per 2 months.

Landed catch data through May 24, 2003, indicate that longspine thornyhead catch was at 32 percent of the annual target. Because of the coincidental catch of shortspine thornyhead with longspine thornyhead in combination with moving the eastern boundary of the trawl RCA into deeper water during July and August, the catch ratio of shortspine to longspine thornyheads is expected to increase. In response to reduced trip limits for shortspine thornyhead and the need to maintain the catch ratio of 5 lb (2.27 kg) longspine thornyhead to 1 lb (0.45 kg) shortspine thornyhead, the Pacific Council also recommended an adjustment in longspine thornyhead trip limits. Therefore, the limited entry trawl longspine thornyhead limit north of 40°10′ N. lat. is decreased from the previously scheduled limit of 14,000 lb (6,350 kg) per 2 months to 11,500 lb (5,216 kg) per 2 months, providing that only large footrope or midwater trawl gear is used to land any groundfish species during the entire limit period. The limited entry small footrope trawl longspine thornyhead limit, (i.e., if small footrope gear is used at any time in any area (north of south, seaward or shoreward of the RCA) during the entire limit period) is increased from the previously scheduled zero retention limit to 5,000 lb (2,268 kg) per 2 months. South of 40°10′ N. lat., the limited entry trawl longspine thornyhead limit is decreased from the previously scheduled limit 16,000 lb (7,257 kg) per 2 months to 11,500 lb (5,216 kg) per 2 months.

Landed catch of nearshore rockfish in the limited entry fixed gear and open access fisheries off northern California is lower than anticipated through May 24, 2003. In an effort to enable the northern California fishery to achieve its nearshore rockfish harvest guideline, the trip limits for minor nearshore rockfish are increased from the previously scheduled limit of 3,000 lb (1,361 kg) per 2 months, no more than 900 lb (408 kg) of which may be species other than black or blue rockfish, to 4,000 lb (1,814 kg) per 2 months, no more than 1,200 lb (544 kg) of which may be species other than black or blue rockfish. This trip limit increase is consistent with Oregon′s plans to proceed toward their nearshore rockfish catch cap. However, because the Oregon fishery is proceeding on schedule with their harvest of black and blue rockfish, this trip limit increase may require Oregon to take independent, State action at a later date to constrain their nearshore rockfish fishery in order to stay within their black rockfish catch cap.