This amendment is effective on the date published in the Federal Register in order to address the technical service delivery needs this fiscal year. The Department follows the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in the development of Departmental 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. The Department has determined that, under 5 U.S.C., 553(b)(B) good cause exists for dispensing with the notice and public comment procedures for this rule. Good cause exists because this interim final rule preserves historical means of working with governmental entities necessary to carry out technical services. Not providing for traditional relationships in carrying out technical services will result in delay in carrying out technical services and therefore implementation of the Farm Bill conservation programs.

It is not practical or in the public interest to delay implementation of the technical service provider process established as a result of the Farm Security and Rural Investment Act of 2002 (2002 Farm Bill). The 2002 Farm Bill authorized several conservation programs and provided substantial funding to implement the programs. In order to accomplish implementation, significant technical services from the private sector and public agencies are needed. Without moving expeditiously to engage public agencies in addressing this workload this fiscal year, the technical assistance funds will not be available for program participants to plan and apply needed conservation practices during the current fiscal year. This exception facilitates this critical implementation.

This limited exception does not reflect a change in the Department's commitment to developing a private sector technical service provider industry. The Department remains committed to developing private sector technical service providers. Also, this exception does not lower the technical standards public agencies must meet in order to be qualified to provide technical services through contribution agreements. Through this amendment, the Department is reaffirming its commitment to the certification process as set forth in 7 CFR part 652 while at the same time recognizing the long-standing, unique, and productive relationships the Department has had with those agencies in delivering technical services by providing for an exception to the certification process under certain limited circumstances and conditions.

This limited exception does not change the qualifications or technical requirements for providing technical services. The only change is the method used to recognize those qualifications. Public agencies have qualified technical staff to provide technical services. The limited exception in the rule allows for the efficient and effective recognition of those qualifications.

All comments submitted during this rulemaking will be considered during promulgation of a final rule.

Section 1242 of the Food Security Act, as amended by the Farm Security and Rural Investment Act of 2002 (2002 Farm Bill), require that the Secretary establish a system for approving individuals and entities to provide technical assistance to implement conservation programs under Title XII of the Food Security Act of 1985.

At 7 CFR part 652, the Department set forth a process to approve individuals, private-sector entities, and public agencies as technical service providers through a technical service provider certification process. In this rulemaking, the Department is amending 7 CFR part 652 to provide for a limited exception to the certification and payment requirements when the Department is partnering with State, local, or tribal governments to assist the Department in carrying out its duties to provide technical services. This limited exception is necessary in order to continue the Department's long-standing, unique, and productive relationship with conservation districts and other governmental entities in the provision of technical assistance. This exception is only applicable when the Department is partnering with a State, local, or tribal government in carrying out the Department's duties to provide technical services. When a governmental entity seeks to compete for procurement contracts, or cooperative agreements with the Department, or seeks to provide technical services directly to a participant as a technical service provider, the certification requirements of 7 CFR part 652 apply.

The Department has limited this exception to governmental entities and declined to expand the exception to non-governmental organizations and others for several reasons. First, the limited purpose of this amendment was to preserve and recognize the Department's long-standing, productive partnership with conservation districts and other governmental entities that have been critical in the Department's delivery of technical assistance. Government entities share the same general mission as the Department as they exist to serve the public. In addition, by carving out a limited exception, the Department also maintains the integrity of the certification process as set forth in 7 CFR part 652, which seeks to treat all parties who wish to provide technical services similarly. Moreover, the Department believes that it would be difficult to justify further expanding this exception in order to include particular groups within the private sector and not others.

During the Dust Bowl days of the 1930s, Congress declared soil and water conservation a national priority, and established the Soil Erosion Service to provide temporary emergency assistance by soil and climate experts. The success of this effort led to the establishment of a permanent agency, the Soil Conservation Service, now the Natural Resources Conservation Service (NRCS). Since the Federal government alone could not solve the problems faced by farmers and ranchers, the challenge was to determine a way to maintain a central national corps of erosion control expertise, while enabling local units of government, individuals, counties, States, and tribes to take the lead in solving the problems of soil erosion.

To encourage landowners to adopt and promote land-conservation initiatives, in 1936, the United States Department of Agriculture (USDA) created a template for State legislatures to consider in establishing conservation districts called the Standard State Soil Conservation District Law. The conservation district was classified as a “special district.” It had limited purposes, unlike a unit of general government, such as a county or city. The powers of the district included conducting surveys and research, disseminating information, conducting demonstrations of conservation practices, and carrying out prevention and control measures.

The organization of conservation districts began after State legislatures passed laws based on the 1936 standard. Fifty-two states and territories have adopted conservation district legislation, allowing landowners to create their own districts. Many Native American tribes have also established conservation districts.

Integral to the functioning of the conservation district are three-way mutual agreements between the Secretary of Agriculture, State and territorial governors or their designees, and each conservation district. Through the mutual agreements, USDA works with conservation districts to secure local guidance and gain approval for local delivery of conservation programs on the Nation's private lands. Also, NRCS enters into cooperative working agreements with conservation districts to define cooperation between NRCS and conservation districts in the conservation of natural resources. Trained NRCS conservationists work with individual farmers and ranchers, through conservation districts, to solve their specific conservation problems.

Districts are governed by a board of directors who are owners or occupiers of land within the conservation district, and are locally elected or appointed. Additionally, each board may appoint several nonvoting associate directors. Board members carry out conservation activities within the district and meet regularly to conduct business.

Conservation district employees hired by the district, such as district managers, clerks, conservationists, and technicians, aid in carrying out conservation activities. All conservation district employees are critical members of the local field office conservation team, and work directly and cooperatively with NRCS.

District employees obtain training and engineering job approval authority from NRCS to carry out conservation planning and conservation practice implementation. They generally work under the direct technical guidance of NRCS. Conservation planning and application carried out by conservation district employees must meet NRCS policy, procedures, standards, and specifications and is subject to ongoing quality assurance. This relationship, or team effort, between NRCS and conservation districts dates back more than 60 years to the formation of districts, and constitutes a unique, long-standing, well-accepted, and successful partnership for addressing the conservation needs within the district.

NRCS desires to continue this relationship with conservation districts and to approve conservation district employees to provide technical services through cooperative working agreements between NRCS and conservation districts, provided that the conservation district employees meet the requisite criteria for providing technical services. In order for conservation district employees to be approved to provide technical service provider technical services in partnership with the Department, they must meet the requirements and skill levels established in the cooperative working agreements prior to being covered under the terms of the cooperative working agreements.

The cooperative working agreements will clearly describe the terms and conditions for conservation district employees to provide technical services, including items such as meeting NRCS standards and specifications for technical services and compliance with applicable laws and regulations. When the Department is contributing financial resources through a partnership with a conservation district, such a relationship must be memorialized by a contribution agreement which sets forth all the terms and conditions of the relationship, including scope of work, compliance with standards and applicable laws, etc. Conservation districts must contribute at least 50 percent of the resources needed for implementing the contribution agreement.

While NRCS has a unique relationship with conservation districts, NRCS also has existing relationships with many other natural resource related public agencies and tribal agencies interested in providing technical services in partnership with the Department. Many public agencies have unique training and experience related to the delivery of specific conservation technical services that match the needs for technical services needed to plan and implement conservation systems and practices. To maintain those relationships, and to develop new relationships, NRCS may approve other public agency and tribal agency employees to provide technical services through the use of memoranda of understanding (MOU) between NRCS and those natural resource related agencies interested in partnering with the Department to provide technical services, provided that the public agency employees meet the requisite criteria for providing technical services. In order for public agency employees to be approved to provide technical service provider technical services in partnership with the Department, under the terms of the MOU, they must first meet the requirements and skill levels established in the MOU. As is the case with conservation districts, when the Department contributes financial resources through a partnership with public and tribal agencies, the Department will enter into a contribution agreement memorializing and setting forth the terms of the relationship. Public agencies must contribute at least 50 percent of the technical resources needed for implementing the contribution agreement.

The MOUs and contribution agreements with public and tribal agencies will reflect the terms and conditions for the public agency employees to provide technical services as technical service providers, including items such as meeting USDA standards and specifications, compliance with applicable laws and regulations and other applicable terms. Public and tribal agencies providing technical service provider assistance are liable for the technical services provided by their employees and must warrant the technical services provided.

Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993), it has been determined that this interim final rule is a significant regulatory action, and has been reviewed by the Office of Management and Budget (OMB). Pursuant to Section 6(a)(3) of Executive Order 12866, NRCS conducted an economic analysis of the potential impacts associated with the interim final rule for Technical Service Provider Assistance published in the Federal Register on November 21, 2002, and included the analysis as part of a Regulatory Impact Analysis document prepared for that interim final rule. The provisions of this interim final rule do not alter the analysis that was originally prepared. A copy of the analysis is available upon request from Gary Gross, Resource Conservationist, Natural Resources Conservation Service, P.O. Box 2890, Washington, DC 20013-2890; or by e-mail to gary.gross@usda.gov, Attention: Technical Service Provider Assistance—Economic Analysis; or at the following web address: http://www.nrcs.usda.gov.

This interim final rule has been reviewed in accordance with Executive Order 12988. The provisions of this interim final rule are not retroactive. The U.S. Department of Agriculture (USDA) has not identified any State or local laws that are in conflict with this regulation, or that would impede full implementation of this rule. In the event that such conflict is identified, the provisions of this interim final rule preempt State and local laws to the extent that such laws are inconsistent with this rule.

The Regulatory Flexibility Act is not applicable to this rule because the Secretary of Agriculture is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

The regulations promulgated by this rule do not authorize any action that may affect the human environment. Accordingly, an analysis of impacts under the National Environmental Policy Act, 42 U.S.C. 4321 et seq. , has not been performed. This interim final rule will help implement new and existing USDA conservation programs, which are subject to the environmental analyses pursuant to the National Environmental Policy Act.

Section 2702 of the Farm Security and Rural Investment Act of 2002 requires that the promulgation of regulations and the administration of Title II of said Act, which authorizes the use of certified technical service providers, be carried out without regard to Chapter 35 of Title 44 of the United States Code (commonly known as the Paperwork Reduction Act). Accordingly, these regulations, related forms, and other information collection activities needed to establish payment rates under these regulations, are not subject to review by the Office of Management and Budget under the Paperwork Reduction Act.

NRCS is committed to compliance with the Government Paperwork Elimination Act (GPEA) and the Freedom to E-File Act, which require government agencies, in general, to provide the public with the option of submitting information or transacting business electronically to the maximum extent possible, and to NRCS in particular. The forms and other information collection activities required for participation in technical services delivery under the technical service provider assistance rule, amended by this rule, are not fully implemented for the public to conduct business with NRCS electronically. However, the required standard forms discussed in this rule will be available electronically through the USDA eForms Web site, at http://www.sc.egov.usda.gov, for downloading. The regulation will be available at the NRCS homepage at http://www.nrcs.usda.gov.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, NRCS assessed the effects of this rulemaking action on State, local, and tribal governments, and the public. This action does not compel the expenditure of $100 million or more by any State, local, or tribal governments, or anyone in the private sector; therefore, a statement under Section 202 of the Unfunded Mandates Reform Act of 1995 is not required.

Pursuant to Section 304 of the Department of Agriculture Reorganization Act of 1994, Public Law 104-354, USDA classified this interim final rule as not major.

A Civil Rights Impact Analysis was completed for the interim final rule for Technical Service Provider Assistance published in the Federal Register on November 21, 2002. The provisions of this interim final rule do not alter analysis that was originally prepared. The review revealed no factors indicating any disproportionate adverse civil rights impacts for participants in NRCS programs and services who are minorities, women, or persons with disabilities. A copy of this analysis is available upon request from Gary Gross, Resource Conservationist, Natural Resources Conservation Service, P.O. Box 2890, Washington, DC 20013-2890; or by e-mail to gary.gross@usda.gov, Attention: Technical Service Provider Assistance—Civil Rights Impact Analysis; or at the following web address: http://www.nrcs.usda.gov.

This rule is issued under Marketing Agreement and Order No. 993 (7 CFR part 993), both as amended, regulating the handling of dried prunes produced in California, 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 (Department) 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 rule 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 rule suspends for five years all provisions in the order and administrative rules and regulations concerning the prune reserve and voluntary producer prune plum diversion. These changes were unanimously recommended by the PMC. This action is needed to ensure that reserve percentages would not be established, and that a prune plum diversion program would not be implemented pursuant to these provisions. During the five-year suspension period, the industry will have the opportunity to determine whether these provisions should be modified, terminated, or remain unchanged.

Section 993.90(a) states in part: “The Secretary shall terminate or suspend the operation of any or all of the provisions of this subpart, whenever he/she finds that such provisions do not tend to effectuate the declared policy of the act.”

Section 993.54 of the order provides authority for volume regulation through establishing salable and reserve percentages of prunes received by handlers (prune reserve). When the prune reserve is in effect, the salable percentage of the California prune crop may be sold to any market while the reserve percentage must be held by the handlers for the account of the PMC. Reserve prunes may be sold to meet either domestic or foreign trade demand or for use in outlets noncompetitive with normal outlets for salable prunes. Net proceeds from sales of reserve prunes are ultimately distributed to producers. The prune reserve is designed to promote orderly marketing conditions, stabilize prices and supplies, and improve producer returns.

Section 993.62 of the order authorizes a producer diversion program, which prune producers may use when a prune reserve is implemented. Section 993.162 of the administrative rules and regulations specifies implementing procedures. Under the producer diversion program, any prune producer may divert prune plums of his own production for eligible purposes and receive a diversion certificate from the PMC. The certificate may be submitted to any handler in lieu of reserve prunes and the handler may apply the quantity represented by the certificate towards his reserve obligation. Participation in this program would reduce a producer's expenses to convert prune plums into dried prunes that would ultimately be placed in a relatively low value prune reserve.

The prune reserve was last implemented in 1974 and the producer diversion program was last used in 1971. These programs were controversial in the 1970s and have become increasingly so since then. Some of the independent prune handlers who are also prune producers now oppose any regulatory marketing restrictions because they want to sell all of the prunes they have produced. If additional tonnage is needed, such handlers would buy prunes from other producers to meet their market demand. In addition, if a prune reserve is implemented, it may require these handlers to contract for additional tonnage in order to meet their reserve obligation.

Recently in 2001, when the PMC recommended using supply control techniques, some of the independent handlers and producers opposed the use of these programs. Ultimately, the supply control programs were not implemented at that time. Also, some in the industry do not support the use of these supply control provisions because the industry has successfully reduced crop sizes through other means.

Through industry and USDA funded tree pull programs, the industry has removed over 18,000 acres of prune plum trees; thus reducing the annual prune production by at least 27,000 tons of prunes over the five-year suspension period.

During the five-year suspension period, the industry will have the opportunity to either recommend that these provisions be terminated through rulemaking procedures, or recommend modifications to the provisions to make them more acceptable to all segments of the industry. In the interim, the suspension of these provisions would ensure that these provisions are not implemented. In the absence of any additional action, the provisions will automatically come back into effect at the end of the suspension period.

The PMC unanimously recommended this action at an April 3, 2003, meeting. This interim final rule suspends §§ 993.21d, 993.36(i), 993.54, 993.55, 993.56, 993.57, 993.58, 993.59, 993.62, 993.65 of the order, and §§ 993.156, 993.157, 993.158, 993.159, 993.162, 993.165 and 993.172(e) of the administrative rules and regulations in effect under the order. Portions of §§ 993.33 and 993.41(b) of the order and portions of §§ 993.173(a)(6), 993.173(b)(3), and 993.173(c)(1) of the administrative rules and regulations are also suspended. These sections of the order and administrative rules and regulations pertain to the various requirements of the prune reserve and producer diversion programs.

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 initial 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 1,205 producers of dried prunes in the production area and approximately 21 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000 and small agricultural service firms are defined as those having annual receipts of less than $5,000,000.

Eight of the 21 handlers (38 percent) shipped over $5,000,000 worth of dried prunes and could be considered large handlers by the Small Business Administration. Thirteen of the 21 handlers (62 percent) shipped less than $5,000,000 worth of dried prunes and could be considered small handlers. An estimated 32 producers, or less than 3 percent of the 1,205 total producers, would be considered large growers with annual incomes over $750,000. The majority of handlers and producers of California dried prunes may be classified as small entities.

This rule suspends for five years all provisions in the order and administrative rules and regulations concerning the prune reserve and voluntary producer diversion programs. These supply control programs have been and continue to be controversial in the industry. Furthermore, the industry has successfully reduced crop sizes through other means. Through industry and USDA funded tree pull programs, over 18,000 acres of prune plum trees have been removed, reducing production by at least 27,000 tons over the five-year suspension period.

This action would ensure that the reserve and diversion volume control programs are not implemented for the period of the suspension. During the five-year suspension period, the industry will have the opportunity to determine whether these provisions should be modified, terminated, or remain the same. In the absence of further rulemaking, these provisions will automatically come back into effect at the end of the suspension period. Authority to suspend these provisions of the marketing order and administrative rules and regulations is provided in § 993.90(a) of the order.

Regarding the impact of this rule on affected entities, this action could reduce the reporting and recordkeeping burden on California prune handlers and producers and reduce some of the PMC's administrative costs. Although the prune reserve and producer diversion programs have not been implemented since the 1970's and handlers and producers have not been required to file reports pertaining to these programs, suspending these provisions would reduce the potential reporting burden on handlers and producers. Suspension of the provisions eliminates the possibility of requiring handlers and producers to file reports associated with the programs. It would also reduce some of the potential PMC administrative costs of managing these programs. The PMC estimates that 21 California prune handlers would be subject to these provisions and to filing reports pertaining to these programs. Also, if a producer diversion program was implemented, it is estimated that as many as 300 producers would file forms applicable to this program. If handlers filed reports under the prune reserve program, their estimated burden would be 57 hours. If growers filed reports under the diversion program, their estimated burden would be 75.58 hours. Thus, there is a potential for reducing the estimated annual burden of 132.58 hours. The benefits of this interim final rule would apply to all prune handlers and producers, regardless of their size of operation.

The forms applicable to these programs are as follows: (1) Form PMC 4.1, Reserve Prunes Held—Handler; (2) Form PMC 4.2, Prune Reserve Tonnage Sales Agreement; (3) Form PMC 4.5, Certificate of Insurance Coverage; (4) Form PMC 5.1, Notice of Proposed Intent to Store Reserve Prunes; (5) Form PMC 8.44, Request for Replacement of Draft; (6) Form PMC 8.443, Claim for Reserve Pool Proceeds; (7) Form PMC 9.1, Notification of Desire for Deferment of Reserve Withholding; (8) Form PMC 10.1, Application for Prune Plum Diversion; (9) No form number, Proof of Diversion; and (10) No form number, Notification of Report of Diversion.

It should be noted that if the PMC determines this action is having an unfavorable impact on the industry, it could meet and recommend rescinding the suspension. Also, as previously mentioned, the provisions would automatically come back into effect at the end of the suspension period.

The PMC and industry members discussed at the PMC's April 3, 2003, meeting different alternatives to this action. The PMC discussed the possibility of amending the marketing order provisions relating to reserve and producer diversion programs but determined it would prefer to eliminate the prune reserves and producer diversion provisions from the order and administrative rules and regulations in a more timely fashion. During the suspension, the industry will have the opportunity to consider possible order amendments to these volume control provisions. Another alternative would be to terminate the marketing order. Many on the PMC and in the industry deemed termination too drastic an action and preferred to preserve the marketing order and make necessary changes to it to meet current industry needs and to reflect current industry marketing practices.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the applicable forms being suspended by this rule were approved previously by the Office of Management and Budget and assigned OMB No. 0581-0178. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

The PMC's April 3, 2003, meeting where this issue was deliberated was widely publicized throughout the prune industry and all interested persons were invited to attend the meetings and participate in the industry's deliberations. Like all PMC meetings, this meeting was a public meeting and all entities, both large and small, were able to express their views on these issues. Finally, interested persons are invited to submit information on the regulatory and informational impacts of these changes on small businesses.

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.

A 60-day comment period is provided to allow interested persons to respond to this rule. All written comments timely received will be considered before a final determination is made on this matter.

After consideration of all relevant material presented, including the PMC's recommendation, and other information, it is found that the provisions being suspended would not tend to effectuate the declared policy of the Act during the August 1, 2003, through July 31, 2008.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) This rule should be implemented as soon as possible so California dried prune producers and handlers can plan accordingly; (2) this rule relaxes requirements in the order and administrative rules and regulations related to volume control activities; (3) these changes were unanimously recommended at a public meeting and interested parties had an opportunity to provide input; and (4) a 60-day comment period is provided and all comments received will be considered prior to finalization of this rule.

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

Interested persons are invited to submit such written data, views, or arguments as they may desire. Communications should identify the regulatory docket or special condition number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. CE196.” The postcard will be date stamped and returned to the commenter.

On December 9, 2002, CenTex Aerospace applied for a Supplemental Type Certificate to modify the Raytheon/Beech Model 58. The modified Model 58 Baron will be powered by two reciprocating engines equipped with electronic engine control systems with full authority capability in place of the hydromechanical control systems.

Under the provisions of 14 CFR part 21, § 21.17, CenTex Aerospace must show that the modified Model 58 Baron meets the applicable provisions of the original certification basis of the Model 58, as listed on Type Certificate No. 3A16 issued June 18, 1957; exemptions, if any; and the special conditions adopted by this rulemaking action. The model 58 was originally certified under CAR 3, as amended to May 15, 1956, and Paragraphs 23.1385(c), 23.1387(a) and 23.1387(e) of FAR Part 23 as amended by Amendment 23-12. Noise certification under FAR Part 36, Amendment 36-10 for Model 58 S/N TH-1090 and after with applicable equivalent safety findings: CAR 3.387 for Model 58 and 58A (all serials). For Models 58 and 58A, S/N TH-1 through TH-1471, TH-1476, TH-1487, TH-1489, TH-1498 equipped per Beech Kit Dwg. 58-5012 or Models 58 and 58A, TH-1472 through TH-1475, TH-1477 through TH-1486, TH-1488, TH-1497, TH-1499 and after, equipped per Beech Dwg. 58-000059 or Beech Kit Dwg. 58-5012, compliance with ice protection has been demonstrated with FAR 23.775 of Amendment 23-7; 23.773, 23.929 and 23.1419 of Amendment 23-14; 23.1309 of Amendment 23-17; 23.1325, 23.1327, 23.1351, 23.1357 and 23.1547(e) of Amendment 23-20; 23.1416, 23.1559 and 23.1583(h) of Amendment 23-23 and 25.1323(e) of FAR 25 dated February 1, 1965.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , 14 CFR part 23) do not contain adequate or appropriate safety standards for the modified Model 58 Baron because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions, as appropriate, as defined in 11.19, are issued in accordance with § 11.38, and become part of the certification basis for the supplemental type certification basis in accordance with § 21.17(a)(2). Special conditions are initially applicable to the model for which they are issued. Should the supplemental type certificate be amended in the future to include other models that are listed on the same type data sheet and incorporate the same novel or unusual design features, the special conditions would also apply under the provisions of § 21.101(a)(1).

The Raytheon/Beech Model 58 Baron, modified by CenTex, Inc., will incorporate the following novel or unusual design features:

The Raytheon/Beech Model 58 Baron airplane modified by CenTex, Inc., will use an engine that includes an electronic control system with full authority digital engine control (FADEC) capability.

Many advanced electronic systems are prone to either upsets or damage, or both, at energy levels lower than analog systems. The increasing use of high power radio frequency emitters mandates requirements for improved high intensity radiated fields (HIRF) protection for electrical and electronic equipment. Since the electronic engine control system used on the modified Raytheon/Beech Model 58 Baron will perform critical functions, provisions for protection from the effects of HIRF should be considered and, if necessary, incorporated into the airplane design data. The FAA policy contained in Notice 8110.71, dated April 2, 1998, establishes the HIRF energy levels that airplanes will be exposed to in service. The guidelines set forth in this Notice are the result of an Aircraft Certification Service review of existing policy on HIRF, in light of the ongoing work of the Aviation Rulemaking Advisory Committee (ARAC) Electromagnetic Effects Harmonization Working Group (EEHWG). The EEHWG adopted a set of HIRF environment levels in November 1997 that were agreed upon by the FAA, JAA, and industry participants. As a result, the HIRF environments in this notice reflect the environment levels recommended by this working group. This notice states that a FADEC is an example of a system that should address the HIRF environments.

Even though the control system will be certificated as part of the engine, the installation of an engine with an electronic control system requires evaluation due to the possible effects on or by other airplane systems ( e.g. , radio interference with other airplane electronic systems, shared engine and airplane power sources). The regulatory requirements in 14 CFR part 23 for evaluating the installation of complex systems, including electronic systems, are contained in § 23.1309. However, when § 23.1309 was developed, the use of electronic control systems for engines was not envisioned; therefore, the § 23.1309 requirements were not applicable to systems certificated as part of the engine (reference § 23.1309(f)(1)). Also, electronic control systems often require inputs from airplane data and power sources and outputs to other airplane systems ( e.g. , automated cockpit powerplant controls such as mixture setting). Although the parts of the system that are not certificated with the engine could be evaluated using the criteria of § 23.1309, the integral nature of systems such as these makes it unfeasible to evaluate the airplane portion of the system without including the engine portion of the system. However, § 23.1309(f)(1) again prevents complete evaluation of the installed airplane system since evaluation of the engine system's effects is not required.

Therefore, special conditions are proposed for the CenTex modified Raytheon/Beech Model 58 Baron airplane to provide HIRF protection and to evaluate the installation of the electronic engine control system for compliance with the requirements of § 23.1309(a) through (e) at Amendment 23-49.

As discussed above, these special conditions are applicable to Model 58 Barons modified by CenTex, Inc. Should CenTex Aerospace apply at a later date to amend the supplemental type certificate to incorporate the same novel or unusual design features on another model listed on the same type certificate data sheet as the Model 58 Baron, the special conditions would apply to that model under the provisions of § 21.101.

This action affects only certain novel or unusual design features on one model, the Model 58 Baron, of airplane. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register . However the FAA finds that good cause exists to make these special conditions effective upon issuance.

1. High Intensity Radiated Fields (HIRF) Protection. In showing compliance with 14 CFR part 21 and the airworthiness requirements of 14 CFR part 23, protection against hazards caused by exposure to HIRF fields for the full authority digital engine control system, which performs critical functions, must be considered. To prevent this occurrence, the electronic engine control system must be designed and installed to ensure that the operation and operational capabilities of this critical system are not adversely affected when the airplane is exposed to high energy radio fields.

At this time, the FAA and other airworthiness authorities are unable to precisely define or control the HIRF energy level to which the airplane will be exposed in service; therefore, the FAA hereby defines two acceptable interim methods for complying with the requirement for protection of systems that perform critical functions.

(1) The applicant may demonstrate that the operation and operational capability of the installed electrical and electronic systems that perform critical functions are not adversely affected when the aircraft is exposed to the external HIRF threat environment defined in the following table:

The FAA recently received a report of a significant number of cracks along the fuselage skin lap joint on a Boeing Model 737-300 series airplane with 35,710 total flight cycles. During scheduled maintenance, fatigue cracks were found on a lap joint of the skin that extends from aft of the flight deck to the wing front spar just above the passenger windows. Some of the cracks linked up to form a 10-inch crack. The premature cracks were attributed to delaminated skin doublers. Improper processing during phosphoric anodize application of the skin panel is the cause of the delaminated skin doublers. This condition, if not corrected, could result in fatigue cracks in the lap joints and consequent rapid decompression of the airplane.

The improperly processed panels were installed on certain airplanes during manufacturing and were available to the remaining airplanes as spare parts. Therefore, Model 737-200, -200C, -300, -400, and -500 series airplanes may be subject to the identified unsafe condition.

We have issued several ADs to require inspections of lap joints; however, those inspections are not required until various times defined in those ADs, which are substantially longer than the compliance time threshold of this AD such that those compliance times do not provide a sufficient level of safety to address the identified unsafe condition.

In addition, on June 26, 2003, we issued a supplemental notice of proposed rulemaking, Rules Docket No. 98-NM-11-AD (68 FR 39485, July 2, 2003). That proposed AD would apply to certain Boeing Model 737 series airplanes including those affected by this AD, and would require, among other things, repetitive inspections for cracking of the same bonded skin panels addressed in this AD to detect delamination of the skin doublers (tear straps) from the skin panels. That proposed AD would require accomplishment of the actions specified in Boeing Service Bulletin 737-53-1179, Revision 2, dated October 25, 2001.

We have reviewed and approved Boeing Service Bulletin 737-53-1179, Revision 2, dated October 25, 2001. That service bulletin describes procedures for, among other things, a one-time internal inspection for discrepancies (including cracks, corrosion, and delamination of skin doublers) of the lap joints on both sides of the airplane, and repair of any cracking found.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD requires repetitive external detailed inspections for cracks of the fuselage skin at the upper row of fasteners on all the lap joints from body station (BS) 259 to BS 1016. Inspection of the lap joints underneath the wing-to-body fairing is not required by this AD. This AD also provides for optional terminating action for the repetitive inspections. This optional terminating action consists of the one-time internal inspection described in the service bulletin discussed previously.

Although the service bulletin specifies that operators may contact the manufacturer for disposition of certain repair conditions, this AD requires operators to repair those conditions per a method approved by the FAA, or per data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the FAA to make such findings.

We consider this AD interim action. As stated previously, we have issued a related proposed AD that is intended to require, among other things, additional inspections defined in Boeing Service Bulletin 737-53-1179. This new AD provides for those additional inspections as optional terminating action for the repetitive inspections required by this AD. However, the planned compliance time for additional inspections would allow enough time to provide notice and opportunity for prior public comment on the merits of the modification.

On July 10, 2002, we issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD.

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

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

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-165-AD.” The postcard will be date stamped and returned to the commenter.

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

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

The FAA published this direct final rule with a request for comments in the Federal Register on May 9, 2003 (68 FR 24868). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on September 4, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA publishes this direct final rule with a request for comments in the Federal Register on May 19, 2003 (68 FR 26994). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on September 4, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on May 23, 2003 (68 FR 28122) and subsequently published a correction in the Federal Register on June 3, 2003 (68 FR 33231). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on September 4, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

This amendment to 14 CFR 71 modifies the Class E airspace area at Elkhart, KS. RNAV (GPS) RWY 4, ORIGINAL SIAP, RNAV (GPS) RWY 17, ORIGINAL SIAP, RNAV (GPS) Rwy 22, ORIGINAL SIAP, RNAV (GPS) RWY 35, ORIGINAL SIAP and NDB RWY 35, AMENDMENT 1 SIAP have been developed to serve Elkhart-Morton County Airport, Elkhart, KS. The Elkhart, KS controlled airspace must be tailored to contain aircraft executing the approach procedures. This action modifies Class E airspace extending upward from 700 feet above ground level (AGL) at Elkhart, KS. An examination of controlled airspace for Elkhart, KS revealed discrepancies in the Elkhart-Morton County Airport airport reference point used in the legal description for the Elkhart, KS Class E airspace area. Class E controlled airspace at Elkhart, KS is defined, in part, by the Elkhart-Morton County Airport airport reference point. This action corrects discrepancies between the previous and revised airport reference points by modifying the Elkhart, KS Class E airspace area. It incorporates the revised Elkhart-Morton County Airport airport reference point into the Class E airspace legal description and brings the airspace area into compliance with FAA Order 7400.2E, Procedures for Handling Airspace Matters. The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

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

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2003-15453/Airspace Docket No. 03-ACE-51.” The postcard will be date/time stamped and returned to the commenter.

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

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Aircraft navigating on J-147 currently use the 076° radial of the Beckley, WV, VORTAC for the route segment between Beckley VORTAC and the RHODE Intersection. A flight inspection has revealed that the 076° radial has become unusable for navigation. The FAA issued a Notice to Airmen informing aviation users that this segment of J-147 is unusable. The FAA is realigning J-147 in order to by-pass the unusable radial and restore the route to service.

This action amends 14 CFR part 71 by revising a segment of J-147 between the Beckley VORTAC and the RHODE Intersection. Due to limitations of the Beckley VORTAC, the radial between Beckley and RHODE Intersection is unusable for navigation. Specifically, this action realigns J-147 from Beckley, WV, VORTAC to Greenbrier, WV, VORTAC, then to RHODE Intersection. This alignment will bypass the unusable Beckley radials and permit restoration of the full length of J-147 for navigation. This action will enhance the management of air traffic in the affected area. A satisfactory flight inspection of the realigned route segment has been completed.

Section 553(b) permits the agency to forego notice and comment rulemaking when the agency finds that such notice would be impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b). In this instance, the full length of J-147 is currently unusable, thus adopting this change by final rule restores J-147 to use in its entirety. This enhances safety and the management of the airspace system. Thus notice and comment in this instance is contrary to the public interest.

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

Jet routes are published in paragraph 2004 of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The jet route listed in this document will be published subsequently in the order.

The PEAKE Intersection is a navigation fix located along the segment of V-167 that extends between the Providence VORTAC and the Marconi VOR/DME. PEAKE also serves as the initial approach fix for the instrument landing system (ILS) approach to Runway 24 at the Vineyard Haven Airport, Martha's Vineyard, MA. The PEAKE Intersection has been moved slightly in order to place the fix directly on the straight-in ILS course to the Vineyard Haven Airport. As a result of this move, the Marconi VOR/DME radial that is used to form the PEAKE Intersection must be shifted by one degree, from 211° to 212°.

This action amends Title 14 CFR part 71 (part 71) by making a minor change in the legal description of VOR Federal Airway V-167. The PEAKE Intersection has been moved slightly in order to align the fix with the centerline of the ILS final approach course to Runway 24 at the Vineyard Haven Airport, MA. Due to this move, the Marconi VOR/DME radial that is used to form the PEAKE Intersection must be shifted by one degree, from 211° to 212°. This minor amendment ensures that the PEAKE Intersection remains properly aligned with the affected segment of V-167, and enhances the efficiency and safety of aircraft operations in the area.

Section 553(b) permits an agency for good cause to forego notice and comment rulemaking when such action is impracticable, unnecessary, or contrary to the public interest. Since this action merely involves a minor editorial change in the legal description of one Federal airway, which is necessary for system efficiency and safety, and does not involve a change in the dimensions or operating requirements of that airspace, I find that notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

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

Domestic VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The airway listed in this document will be published subsequently in the order.

The Tuscaloosa VORTAC is located 4.4 nautical miles northeast of the Tuscaloosa Municipal Airport, Tuscaloosa, AL. The airport and the VORTAC currently share the same name and three-letter location identifier ( i.e. , TCL). The FAA's policy regarding the naming of navigation aids (NAVAID) states that a “NAVAID with the same name as the associated airport should be located on that airport. When the retention of the airport name at an off-airport NAVAID could lead to a potentially confusing situation, the NAVAID name should be changed.” There have been instances where the shared name/location identifier at Tuscaloosa has resulted in confusion in pilot/air traffic controller communications. Since the airport and the VORTAC are both located in an area lacking air traffic control radar coverage at low altitudes, confusion over aircraft clearance limits and/or routing could lead to a situation that would compromise aviation safety. To eliminate future confusion and enhance safety, the FAA has determined that the Tuscaloosa VORTAC name and identifier should be changed.

This action amends 14 CFR part 71 by revising the legal descriptions of VOR Federal Airways V-18, V-66, V-245, and V-417, which include the Tuscaloosa, AL, VORTAC as part of their route structures. Currently, the Tuscaloosa VORTAC and the Tuscaloosa Municipal Airport share the same name and location identifier. The fact that the VORTAC and the airport are not co-located has led to confusion among users and presents a potential safety problem. In order to alleviate this problem, the “Tuscaloosa VORTAC” is being renamed the “Crimson VORTAC” and its location identifier is being changed to “LDK.” This rulemaking action is being taken to change all references in the affected VOR Federal airway route descriptions that read “Tuscaloosa, AL” to read “Crimson, AL.” This action makes an additional minor correction to the legal description for V-66 by adding the State abbreviation “TX” following the first use of the word “Hudspeth.” This abbreviation was inadvertently omitted in the previous legal description.

Section 553(b) permits an agency for good cause to forego notice and comment rulemaking when such action would be impracticable, unnecessary, or contrary to the public interest. In this instance, the FAA finds that this action is needed to improve safety and eliminate confusion. Thus, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest.

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

VOR Federal airways are published in paragraph 6010(a), of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document will be published subsequently in the Order.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1D, Policies and Procedures for Considering Environmental Impacts. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In the case of any qualified stock purchase, section 338 allows a purchasing corporation to elect to treat the target corporation as having sold all of its assets at the close of the acquisition date at fair market value and then treats the target corporation as a new corporation that purchased all of its assets as of the beginning of the day after the acquisition date. Section 338 was enacted to replace former section 334(b)(2) and to repeal the Kimbell-Diamond doctrine. See H.R. Rep. No. 97-760 at 536 (1982), 1982-2 C.B. 600, 632 (reflecting that section 338 replaces “any nonstatutory treatment of a stock purchase as an asset purchase under the Kimbell-Diamond doctrine”). In Kimbell-Diamond Milling Co. v. Commissioner , 14 T.C. 74, aff'd per curiam, 342 U.S. 827 (1951), the court held that the purchase of the stock of a target corporation for the purpose of obtaining its assets through a prompt liquidation should be treated by the purchaser as a purchase of the target corporation's assets with the purchaser receiving a cost basis in the assets.

Rev. Rul. 2001-46 (2001-2 C.B. 321) considers whether the step transaction doctrine should apply to treat certain acquisitions of stock of a target corporation followed by mergers of the target corporation into the acquiring corporation as reorganizations under section 368(a)(1)(A). In Situation 1 of that ruling, Corporation X owns all of the stock of Corporation Y. Pursuant to an integrated plan, X acquires all of the stock of Corporation T in a statutory merger of Y into T (the “Acquisition Merger”), with T surviving. In the Acquisition Merger, the T shareholders exchange their T stock for consideration, 70 percent of which is X voting stock and 30 percent of which is cash. Following the Acquisition Merger and as part of the plan, T merges into X in a statutory merger (the “Upstream Merger”). If viewed separately from the Upstream Merger, the Acquisition Merger would qualify as a qualified stock purchase. If viewed separately from the Acquisition Merger, the Upstream Merger would qualify as a liquidation described in section 332. However, if the step transaction doctrine were applied to the Acquisition Merger and the Upstream Merger, the integrated transaction would be treated as an integrated acquisition of T's assets by X in a single statutory merger qualifying as a reorganization under section 368(a).

Considering the appropriate treatment of the Acquisition Merger and the Upstream Merger, Rev. Rul. 2001-46 examines, among other authorities, Rev. Rul. 67-274 (1967-2 C.B. 141) and Rev. Rul. 90-95 (1990-2 C.B. 67). In Rev. Rul. 67-274, a corporation's acquisition of stock of a target corporation that, viewed independently, qualifies as a reorganization under section 368(a)(1)(B), is followed by a liquidation of the target corporation into the acquiring corporation that, viewed independently, qualifies as a liquidation described in section 332. Rev. Rul. 67-274 holds that the transaction is an acquisition by the acquiring corporation of the target corporation's assets in a reorganization under section 368(a)(1)(C). In Rev. Rul. 90-95, a subsidiary of the acquiring corporation merges into the target corporation with the target corporation shareholders receiving solely cash in exchange for their stock. Immediately following this merger, the target corporation merges into the acquiring corporation. Rev. Rul. 90-95 rules that the first step is accorded independent significance from the subsequent liquidation of the target corporation and, therefore, is treated as a qualified stock purchase, regardless of whether an election under section 338 is made.

In Rev. Rul. 2001-46, the IRS concluded that treating the Acquisition Merger and the Upstream Merger as a single statutory merger of T into X would not violate the policy underlying section 338 because that treatment results in a transaction that qualifies as a reorganization under section 368(a)(1)(A) in which X acquires the assets of T with a carryover basis under section 362, not a cost basis under section 1012. Finally, Rev. Rul. 2001-46 states that the IRS and Treasury are considering whether to issue regulations that would reflect the general principles of the revenue ruling, but would allow taxpayers to make an election under section 338(h)(10) with respect to a step in a multi-step transaction that, viewed independently, is a qualified stock purchase and is pursuant to a written agreement that requires, or permits, the purchasing corporation to cause a section 338(h)(10) election in respect of such step to be made. The IRS requested and received comments on this issue.

The IRS and Treasury have studied the comments received in response to the request made in Rev. Rul. 2001-46, all of which urge the IRS and Treasury to allow taxpayers to make section 338(h)(10) elections in certain transactions as contemplated by Rev. Rul. 2001-46. These final and temporary regulations adopt this recommendation and provide that the step transaction doctrine will not be applied if a taxpayer makes a valid section 338(h)(10) election with respect to a step in a multi-step transaction, even if the transaction would otherwise qualify as a reorganization, if the step, standing alone, is a qualified stock purchase. The IRS and Treasury are continuing to study the other comments received. In particular, the IRS and Treasury are considering whether any amendments to the portion of the regulations under section 338 related to the corporate purchaser requirement are appropriate.

These final and temporary regulations are applicable to acquisitions of stock occurring on or after the date of publication of the regulations.

These final and temporary regulations are necessary in order to provide taxpayers with immediate guidance regarding the validity of certain elections made under section 338(h)(10). Accordingly, good cause is found for dispensing with the notice and public procedure pursuant to 5 U.S.C. 553(b)(B) and with providing a delayed effective date pursuant to 5 U.S.C. 553(d)(1) and (3). For applicability of the Regulatory Flexibility Act, please refer to the cross-reference notice of proposed rulemaking published elsewhere in this issue of the Federal Register . These final and temporary regulations have been submitted to the Chief Counsel of Advocacy of the Small Business Administration for comment on their impact on small businesses.

The principal authors of these final and temporary regulations are Daniel Heins and Mary Goode, Office of Associate Chief Counsel (Corporate). However, other personnel from the IRS and Treasury Department participated in their development.

The IRS' obligation under section 6104 of the Code to make certain information open to public inspection is satisfied by making the information available to the public at such times and places as the IRS shall reasonably prescribe. The existing regulations provide that copies of the information that the IRS must make open to public inspection shall be available to members of the public upon written request. Currently, § 301.6104(a)-6(d) provides that the IRS will charge a “fee” for copies of material available to the public under section 6104(a)(1) of the Code, including approved applications for recognition of tax-exempt status and supporting papers. Currently, § 301.6104(b)-1(d)(4) provides that the Commissioner may prescribe a “reasonable fee” for copies of material available to the public under section 6104(b) of the Code, including certain information furnished on exempt organization annual information returns.

These temporary regulations amend the existing regulations to clarify that any fee assessed by the IRS in the exercise of its discretion, whether in the case of requests for photocopies, or for special media ( e.g. , computer printouts, transcripts, CD-ROM reproductions), shall be no more than the fee under the IRS' FOIA fee schedule. For paper copies, the IRS' FOIA fee schedule, at 26 CFR 601.702(f)(3)(iv), grants the first 100 pages free of charge to requesters other than commercial use requesters, but otherwise sets a per-page copying fee applicable to all requesters. The IRS' FOIA fee schedule, at 26 CFR 601.702(f)(5)(iii)(B), also authorizes fees based on the actual costs of non-paper products, such as computer disks.

Currently, § 301.6104(d)-1(d)(3)(i) provides that an exempt organization required to furnish copies to a requester may charge a copying fee corresponding to that which the IRS may charge. These temporary regulations amend existing regulation § 301.6104(d)-1(d)(3)(i) to make clear that an exempt organization may charge the applicable per-page copying fee—for any number of pages—under the IRS' FOIA fee schedule. An exempt organization need not provide the first 100 pages of copies free of charge to requesters other than commercial use requesters as the IRS does.

Through December 18, 2002, the IRS' FOIA fee schedule set fees of $1.00 for the first page and $.15 for each subsequent page of exempt organization returns and related documents. 26 CFR 601.702(f)(5)(iv)(B). Effective December 19, 2002, the fees are to be established by the Commissioner from time to time. 26 CFR 601.702(f) as updated at 67 FR 69673, 69682. Currently, the Commissioner has established fees of $.20 per page, up to 8 1/2 by 14 inches, made by photocopy or similar process, and actual cost for other types of duplication. 31 CFR 1.7(g)(1)(i), (ii) and (iii).

These temporary regulations amend § 301.6104(a)-6(d) and § 301.6104(b)-1(d)(4) to provide that the fees the IRS charges for furnishing copies of materials available to the public under § 301.6104(a)-6(d) and § 301.6104(b)-1(d)(4) shall be no more than under the IRS' FOIA fee schedule.

These temporary regulations also amend § 301.6104(d)-1(d)(3)(i) to make clear that an exempt organization may charge the applicable per-page copying fee under the IRS' FOIA fee schedule—without regard to any otherwise applicable fee exclusion for the first 100 pages.

It has been determined that this Treasury Decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these temporary regulations. For applicability 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, these temporary regulations will be submitted to the Chief Counsel of the Small Business Administration for comment on their impact on small businesses.

The principal author of these temporary regulations is Sarah Tate, Office of Associate Chief Counsel (Procedure & Administration), Disclosure & Privacy Law Division.

The Coast Guard is implementing the permanent safety zones in 33 CFR 165.909 (published July 3, 2002, in the Federal Register , 67 FR 44588), for fireworks displays in the Captain of the Port Milwaukee Zone during July 2003. The following safety zones are in effect for fireworks displays occurring in the month of July 2003:

U.S. Bank (Firstar) Fireworks. This safety zone will be enforced on July 3, 2003 from 9:20 p.m. until 10:10 p.m. In the event of inclement weather, the rain date will be during these same times on July 4, 2003.

Festa Italiana Fireworks. This safety zone will be enforced on July 17th through the 20th, 2003 from 10 p.m. until 10:30 p.m.

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 a NPRM. Publishing a NPRM, which would incorporate a comment period before a final rule could be issued, would be contrary to the public interest since immediate action is needed to protect the public 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 .

This rule is required to provide for the safety of life on navigable waters because numerous swimmers will be crossing navigable channels in the commercial port of San Juan. This rule creates a safety zone area that will prohibit non-participating vessels from entering the safety zone during the event without the authorization of the Captain of the Port of San Juan, Puerto Rico. The safety zone area is based on a rectangular shape starting at point 1, La Puntilla Final, Coast Guard Base at position 18°27′33″ N 066°07′00″ W, then South to point 2, Catano Ferry Pier at position 18°26′36″ N 066°07′00″ W, then East to point 3, Punta Catano at position 18°26′40″ N 066°06′48″ W, then North to point 4 at position 18°27′40″ N 066°06′49″ W and back to origin.

Law enforcement vessels can be contacted on VHF Marine Band Radio, Channel 16 or telephone number (787) 729-2041. The United States Coast Guard Communications Center will notify the public via Broadcast Notice to Mariners VHF Marine Band Radio, Channel 22 when the zone is activated.

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. The Coast Guard expects the economic impact of this safety zone to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of Department of Homeland Security is unnecessary because entry into the safety zone is prohibited for a limited time and vessels will still be able to transit around the safety zone and may be allowed to enter the safety zone with the express permission of the Captain of the Port of San Juan or his designated representative.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this rule would have a significant economic effect upon 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 safety zone will only be in effect for a limited time and vessels will be able to transit around the zone and may be allowed to enter the safety zone with the express permission of the Captain of the Port of San Juan, Puerto Rico or his designated representative.

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

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 requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implication 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 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 considered the environmental impact of this rule and concluded under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation.

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 Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs as a significant energy action has not designated it. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

On May 13, 2003, we published a temporary final rule (TFR) entitled Safety Zone; Mission Creek Waterway, China Basin, San Francisco Bay, California in the Federal Register (68 FR 25503), which was preceded by a notice of proposed rulemaking (NPRM), which was published in the Federal Register (68 FR 13244) on March 19, 2003 which afforded the public a comment period. This rule has been in effect since 1 a.m. (PDT) May 1, 2003 and will expire at 1 a.m. (PDT) September 1, 2004. The enforcement period for the safety zone for the first phase of this project was published as commencing on May 1, 2003, and lasting for 2 months, to expire at 1 a.m. June 28, 2003. Due to project delays, the safety zone for the first phase of this project will now last for a 3-month period, vice a 2-month period, expiring on July 28, 2003. The second phase of this project remains as previously published, commencing April 1, 2004, lasting for a 5-month period. Both periods will be enforced 24 hours a day.

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 construction delays to this project were unforeseeable and not realized until the final 30-day phase of this 2-month project, thus not allowing enough time for this rule to be published a full 30 days prior to making this rule effective. Accordingly, since timely rehabilitation to the bridge (which is discussed in the Background and Purpose section) is crucial to the safety of this bridge, the channel closure must be extended for another 4-week period, starting June 29, 2003, which is less than 30 days after the publication of this rule.

The San Francisco Department of Public Works requested a waterway closure on Mission Creek for the purpose of performing significant work to the Fourth Street Bridge. The Fourth Street Bridge was erected across the Mission Creek Waterway at the China Basin in 1917, and was determined eligible for listing in the National Register of Historic Places in 1985 as part of the California Department of Transportation (Caltrans) Historic Bridge Inventory. Caltrans, Division of Structures, evaluated the Fourth Street Bridge and recommended that the bridge be brought up to current seismic safety standards. In view of extensive corrosion to the steel components and concrete approaches of the bridge, Caltrans has also placed traffic load limitations over this bridge. Three primary objectives are to be met in rehabilitating the Fourth Street Bridge: (i) Seismically retrofit the structure while not significantly altering the historical appearance of the bridge; (ii) Repair the damage to the concrete approaches and several steel and concrete members of the movable span, and (iii) Reinitiate light rail service across the bridge.

The first phase of this project, which began May 1, 2003, will entail the removal of the lift span and will now take approximately 3 months to complete vice the previously published 2 months. During this period, the channel will be closed at the Fourth Street Bridge to boating traffic. The second phase of this project will entail the construction of the north and south approaches, the new counterweight and its enclosing pit; but for the most part, boating traffic will not be affected during this phase. The last phase of this project will entail the replacement of the lift span and aligning the bridge to accept the light rail track system, which will take approximately five months, scheduled to begin April 1, 2004. During this period, the channel will be closed at the Fourth Street Bridge to boating traffic.

The Fourth Street Bridge Project is funded by Federal Highway Administration and State of California. The state funding restricts the construction to a start date before August 2003 and completion by September 2005. Any delays or deferrals in construction will impact the secured funding for the project.

There are two major environmental issues that restrict the construction in the channel, namely the annual pacific hearing-spawning season that runs from December 1 to March 31 and noise constraint in the water for steelhead from December 1 to June 1. Any demolition, pile driving and excavation in the water during those time periods will be monitored and restricted for possible impact on the fish.

The Fourth Street Bridge Project is part of the larger Third Street Light Rail Project and many public presentations on the project's components, channel closure schedules, impacts to surrounding uses and project duration have been made by the City and Port of San Francisco. The Third Street Light Rail Advisory Group was created as a forum to keep the public informed on the progress being made on the Third Street Light rail project. Also, this project has been presented at several Mission Bay Citizen Advisory Committee meetings. At these meetings, the public was notified of the project components, impacts and the need to temporarily close the waterway. Specific to the Fourth Street Bridge project, an Environmental Assessment, required by the Federal Highway Administration and Caltrans, (under the National Environmental Protection Act) was conducted by the City of San Francisco. A public hearing regarding the Environmental Assessment was held on January 17, 2002 at San Francisco Arts College, Timken Lecture Hall, 1111 8th Street in San Francisco, California, and was well attended.

In January 2003, the City of San Francisco advised the Coast Guard Captain of the Port that two channel closures would be necessary in order to accomplish the Fourth Street Bridge project. The Coast Guard met with various City and Port officials to ensure that there would be minimal impacts on involved and potentially involved entities. Those entities that will be affected by this one-month extension have been notified and concur with this enforcement period extension.

This temporary safety zone in the navigable waters of Mission Creek surrounding the construction site of the Fourth Street Bridge will be enforced during the course of a 3-month period, which started on May 1, 2003 and again for a 5-month period, starting April 1, 2004. Both periods will be enforced 24 hours a day.

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).

Although this safety zone does restrict boating traffic past the fourth street bridge, the effect of this regulation will not be significant as this waterway is very small with limited boating traffic.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. For the same reasons set forth in the above Regulatory Evaluation, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule is not expected to have a significant economic impact on any substantial number of entities, regardless of their size.

This safety zone will not have a significant impact on a substantial number of small entities for the following reasons. Although the channel closure will restrict water access to a small number of boats, including houseboats who have moorings in Mission Creek Harbor, the channel closure will not impact land access to these houseboats during the bridge closures. The City of San Francisco, Department of Public Works and the Port of San Francisco have been in close consultation with the Mission Creek Harbor Association to assist boat owners affected by this project. As a result, the Mission Creek Harbor Association has a lease agreement with the Port of San Francisco for both houseboats and pleasure boats to moor outside of the affected closure area for the duration of the first channel closure that commences on May 1, 2003. Payment of all leases has been extended for one month, to coincide with the new expiration date of July 28, 2003. A similar resolution has been met for the second closure that is scheduled to commence on April 1, 2004.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offer 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, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

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 contains no 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. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not 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 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 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.lD, 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 there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because we are establishing a safety zone.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES.

On March 14, 2003, the United States Postal Service, in conformance with section 3623 of the Postal Reorganization Act (39 U.S.C. 101 et seq. ), filed a request for a recommended decision by the Postal Rate Commission (PRC) on the establishment of Customized MarketMail as a minor classification change. The PRC designated this filing as Docket No. MC2003-1.

On June 6, 2003, pursuant to 39 U.S.C. 3624, the PRC issued to the Governors of the Postal Service its Opinion and Recommended Decision Approving Stipulation and Agreement on Customized Market Mail Minor Classification Changes, Docket No. MC2003-1. The PRC recommended that the Postal Service proposal for Customized MarketMail be established as a permanent classification.

On June 27, 2003, the Governors of the Postal Service approved the recommended decision and the Board of Governors established an implementation date of August 10, 2003, on which the approved classifications for Customized MarketMail take effect. This final rule contains the DMM standards adopted by the Postal Service to implement the decision of the Governors.

The Postal Service has therefore determined to issue these standards as published in the proposed rule, with minor modifications, as issued on May 21, 2003, in the Federal Register (68 FR 27760-27767). In that proposed rule, the Postal Service requested comments from the public and the mailing industry.

In order to simplify further the requirements for CMM, the Postal Service has initiated the following modifications or clarifications to the proposed rule:

• Addition of Postal Service flat trays as a container option.

• Addition of three distinct content identifier numbers for CMM prepared in Postal Service containers (letter trays, flat trays, and sacks), including the required “MAN” to ensure the mail is manually handled.

• Addition of a mailing standard requiring the submission of a sample CMM piece along with an extra copy of the completed postage statement corresponding to the CMM mailing at the time of mailing.

The Postal Service received comments from four distinct entities: a mailing association, a printing and graphics company, a promotional products company, and a Postal Service employee.

One of the commenters expressed a general objection to CMM. This comment is outside the scope of the final rule.

Three of the commenters praised the Postal Service for its proposed changes to mailing standards that currently prohibit nonrectangular pieces that are 1/4 inch thick or less. They stated that this minor classification change will provide new and more creative opportunities for advertising mailers to reach their customers and, at the same time, strengthen the viability of mail as an advertising medium.

These same three commenters expressed their concern about potential cost barriers for some mailers wishing to use this new service. In particular, these commenters stated that, because of the necessary requirement to enter mail at the delivery unit under a limited set of methods, many mailers would not be able to afford the production costs, postage costs, and then the transportation costs in order to consider CMM a viable choice for either ongoing business needs or occasional marketing campaigns.

The same three commenters believed that adding both Parcel Post drop shipment and First-Class Mail drop shipment (open and distribute at destination office) would provide two more effective and, in many cases, more economical means to enter CMM pieces at the required delivery unit. Parcel Post would provide lower costs than either Priority Mail or Express Mail drop shipment, and First-Class Mail drop shipment would allow sending either one piece or a handful of pieces to a particular delivery unit.

The Postal Service contemplated that this minor classification change would complement existing rates and services and only existing Postal Service infrastructures for mail processing, transportation, and delivery would be used for this high-end service. By using the current transportation networks and mail processing and delivery systems already in place, the Postal Service would be able to introduce this product efficiently. In addition, the Postal Service established simpler and less stringent preparation standards than those required for other types of Standard Mail, including the elimination of the minimum required number of pieces per package and container.

Mindful of the need to make this new service competitive, the Postal Service will offer four practical methods to reach the delivery unit:

• Normal entry procedures for mailers who already have paid the appropriate fees (including the annual mailing fee) at the Post Office of mailing. If the Post Office of mailing is also the site from which carriers deliver the destinating mail or the site in which distribution is made to Post Office boxes, the mail can be verified and accepted at that office like any other mailing. This method is especially useful for local mailers taking CMM to small Post Offices. If the Post Office has multiple stations and branches, the mailer could handle the mail similarly to a plant-verified drop shipment (PVDS) as long as the applicable documents are used. In either case, this entry method is useful and inexpensive for local mailers either preparing the mail themselves or working with a third-party mail preparation house. It eliminates the need for using Express Mail or Priority drop shipment altogether and adds only the transportation costs to the total mailing expenditures.

• Plant-verified drop shipment for either local mailers or national mailers (or mailers working with a third party). Here the mail is verified at origin either in the mailer's plant or at the business mail entry unit (BMEU) at the origin post office serving the mailer's plant. Postage and fees are paid under a valid permit at the post office generally serving the mailer's plant. The shipments are then shipped on the mailer's or agent's transportation to the various destination Postal Service facilities, where the shipments are compared with the proper drop shipment form and then accepted as mail by the Postal Service. For small mailings, a mailer can certainly engage the services of an agent who makes regular drops either locally or nationally, saving considerable costs associated with this method.

• Priority Mail drop shipment for budget-conscious mailers needing an efficient and effective entry method that generally provides two- to three-day service. Mailers can prepare the pieces either directly into Priority Mail sacks or use Postal Service letter trays that are properly labeled. Moreover, mailers can obtain special Priority Mail mailing boxes, envelopes, tape, and labels from the Postal Service at no additional charge. Mailers may also use their own mailing cartons and envelopes for this drop shipment method.

• Express Mail drop shipment for mailers needing a fast entry method that generally provides overnight service with tracking and tracing. This entry method, though more expensive than Priority Mail, also provides a postage refund for the Express Mail portion if the drop shipment fails to be delivered by the guaranteed delivery time. Moreover, mailers can obtain special Express Mail mailing boxes, envelopes, tape, and labels from the Postal Service at no additional charge. Mailers may also use their own mailing cartons and envelopes for this drop shipment method.

First-Class Mail as a drop shipment method may not have widespread use owing to the 13-ounce maximum weight limit imposed on that class of mail. For example, if a mailer prepared 3-ounce CMM pieces, that mailer could place no more than four such pieces in one First-Class Mail envelope. Postal Service drop shipment services—both Express Mail and Priority Mail—were originally designed to carry large quantities of lower rate mail such as Standard Mail letter or small parcels.

In regard to the pricing between Priority Mail drop shipment and any proposal to use a Parcel Post drop shipment alternative, see the following table. Taking an average of zone 4 for lighter weight categories, the differences between the two subclasses of mail are not always significant. Mailers wanting to use Parcel Post would likely select the inter-bulk mail center (BMC) machinable rates rather than the less expensive intra-BMC rates for pieces entering and destinating in the service area of the same BMC. The lower intra-BMC rates would be more likely only for localized mailings. Furthermore, when the postage cost for the Priority Mail portion is divided by the actual number of enclosed pieces and thus spread out over each piece, the price differences can be as small as a few extra cents per piece.

Although at this time the Postal Service does not plan to introduce new services such as Parcel Post drop shipment or First-Class Mail drop shipment, it will study these ideas and determine their merits and their impact on mailer costs, other classes of mail, mail processing changes, software modifications for customers preparing manifested mail and other possible costs resulting from any such addition to current services.

One commenter also urged the Postal Service to pursue relaxing or modifying some of the mail preparation standards in the proposed rule as one way of improving the affordability of CMM for mailers wanting to use this new service. Specifically, the mailing association believed that the Postal Service should develop and implement the necessary procedures to identify and track CMM by revenue, volume, and cost. Collecting such data would help in reviewing the various costing components of CMM and possibly inform future proposals for rate changes that would make CMM more economical for a wider range of mailers.

The Postal Service believes that the only stringent mail preparation standards for some mailers might be those requiring destination delivery unit entry. Otherwise, CMM is probably easier to prepare than any other presorted mail at any other rate. Except for the required minimum of 200 pieces for each mailing, CMM does not require that minimum volumes be sent to a single destination delivery unit. In addition, there are no minimums for the number of pieces prepared in packages or placed into containers. Moreover, mailers may use letter trays, flat trays, or sacks, as well as mailer-supplied containers.

As part of the Stipulation and Agreement, the Postal Service will undertake a data collection and reporting plan. Specifically, the Postal Service will amend the appropriate postage statements to require separate identification of CMM. Data from the postage statements would then be collected and analyzed to estimate both the annual volume and revenue of CMM. Under the terms of the Stipulation and Agreement, the Postal Service would report estimates of CMM volume and revenue annually to the Postal Rate Commission. Data reporting would continue until the conclusion of the next omnibus rate proceeding. As a result of the settlement, participants interested in revisiting the impact of CMM would be equipped with statistics that would aid in framing an analysis of CMM in a future rate case.

One commenter contended that counterstacking nonuniform CMM pieces could pose additional problems and work for the mailer and the Postal Service. The commenter did not believe counterstacking was necessary because CMM mailers are obligated to deliver the mail to the delivery unit using their own transportation. The commenter also noted that counterstacking requires the mailer to reorient the pieces based on their unevenness, which is generally a manual process. The Postal Service employee receiving the counterstacked packages is then required to turn the pieces around for efficient reading and casing. This commenter also questioned how a mailer would counterstack pieces that measured 7/1000 inch thick on each edge and 3/4 inch thick in the middle.

The Postal Service requires the packaging of all CMM pieces—whether those pieces are transported by the mailer or sent using Express Mail or Priority Mail drop shipment—in order to minimize the potential for damage to the pieces. Moreover, for nonuniform CMM pieces, the mailer must also counterstack the pieces to ensure stability of packages throughout transportation and processing. Counterstacking is already a widely observed practice by mailers producing certain types of flat-size mailpieces not only to stabilize packages of such pieces but also to create uniform packages that take up less space in the mailing containers. Although it would be permissible to create pieces with extreme dimensions of thickness, packaging of such pieces is still possible because there is no minimum number of pieces for a package. In the case the commenter mentioned, the mailer could line several pieces in a row and then shrinkwrap those pieces to unitize the package.

For the reasons presented in the proposed rule and those noted above in this final rule, and in consideration of the public comments received, the Postal Service adopts the following changes in the Domestic Mail Manual, which is incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

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

The SIP is a living document which the State can revise as necessary to address the unique air pollution problems in the State. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997, (62 FR 27968) EPA revised the procedures for incorporating by reference Federally-approved SIPs, as a result of consultations between EPA and OFR. The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997, Federal Register document. On October 22, 2002, EPA published a document in the Federal Register (67 FR 64999) beginning the table for Mecklenburg County, North Carolina IBR material. In this document EPA is doing the update to the material being IBRed.

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 8, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office. EPA has established an official public rulemaking file for this action under GA-60, GA-61-200332. The official public file 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 rulemaking file does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the contact listed in the For Further Information Contact section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 9 to 3:30 excluding federal Holidays.

2. Copies of the State submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the State Air Agency.

Air Protection Branch, Georgia Environmental Protection Division, Georgia Department of Natural Resources, 4244 International Parkway, Suite 120, Atlanta, Georgia 30354. Telephone (404) 363-7000.

3. Electronic Access. You may access this Federal Register document electronically through the Regulation.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on Federal rules that have been published in the Federal Register , the Government's legal newspaper, and are open for comment.

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

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking GA-60, GA-61-200332.” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

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

i. E-mail. Comments may be sent by electronic mail (e-mail) to martin.scott@epa.gov, please including the text “Public comment on proposed rulemaking GA-60, GA-61-200332.” in the subject line. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

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

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

2. By Mail. Send your comments to: Scott M. Martin, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Please include the text “Public comment on proposed rulemaking GA-60, GA-61-200332.” in the subject line on the first page of your comment.

3. By Hand Delivery or Courier. Deliver your comments to: Scott M. Martin; Regulatory Development Section; Air Planning Branch; Air, Pesticides and Toxics Management Division 12th floor; U.S. Environmental Protection Agency Region 4; 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 9:00 to 3:30 excluding federal Holidays.

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

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

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

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

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

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

On July 1, 2002, and January 10, 2003, the GAEPD submitted revisions to the Georgia SIP. These revisions pertain to Chapter 391-3-1 Rules for Air Quality Control and Chapter 391-3-20 Enhanced Inspection and Maintenance. The revisions are described below.

Rule 391-3-1.01(nnnn) “Procedures for Testing and Monitoring Sources of Air Pollutants” was amended to include the most recent version of the test manual dated April 3, 2002.

Rule 391-3-1-.02(2)(a)(7) “Excess Emissions” was amended to add circumstances in which subparagraphs (i) and (ii) will not apply. Subparagraphs (i) and (ii) allow excess emissions during startup, shutdown, or malfunction provided that certain criteria for minimizing emissions are met. Currently the only exception to this allowance is for equipment subject to New Source Performance Standards (NSPS). This amendment expands this exclusion to any State or federal regulation that specifically states that an emission standard applies during startup, shutdown, and malfunctions.

Rule 391-3-1-.02(c) “Incinerators” was amended to exempt Commercial/Industrial/Solid Waste Incinerators (CISWI) as they will be subject to the more stringent New Source Performance Standard (NSPS) for CISWI.

Rule 391-3-1-.02(2)(g) “Sulfur Dioxide” was amended to exclude kraft pulp mill recovery furnaces. This portion of the rule was not intended to apply to kraft pulp mill recovery boilers. Therefore, the change in wording was made to clarify that these units are exempt from rule 391-3-1-.02(2)(g). Kraft pulp mills are regulated under rule 391-3-1-.02(2)(gg).

Rule 391-3-1-.02(2)(jjj) “NO X Emissions from Electric Steam Generating Units” was amended to make the existing, less stringent, requirements of the rule inapplicable once the more stringent provisions of the rule became effective May 1, 2003.

Rule 391-3-20-.03(7) “Covered Vehicles; Exemptions” was amended to update a reference to the Department of Revenue to the Department of Motor Vehicle Safety. The Department of Motor Vehicle Safety now manages the vehicle registration database in Georgia.

Rule 391-3-20-.06(5) “On-Road Testing” was amended to revise the requirements for payment of emission reinspections as it relates to high emitting vehicles identified by remote sensing.

Rule 391-3-20-.19(2) “Management Contractor” was amended to update a reference to the Department of Revenue.

Rule 391-3-20-.21(3) “Program Administration Fees” was amended to remove a reference to disbursement of the administrative fees.

Rule 391-3-1-.01(nnnn) “Procedures for Testing and Monitoring Sources of Air Pollutants” was amended to include the most recent version of the test manual dated September 25, 2002.

Rule 391-3-20-.04 “Emission Inspection Procedures” subparagraph (2)(b)(1) was amended to remove an outdated reference date.

Rule 391-3-20-.17 “Waivers” was amended to update the repair waiver cost for test year 2003.

EPA is approving the aforementioned changes to the Georgia SIP because they are consistent with the Clean Air Act and Agency requirements.

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective September 8, 2003 without further notice unless the Agency receives adverse comments by August 8, 2003.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on September 8, 2003 and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 8, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

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

On March 25, 2003 (68 FR 14382-14388), we proposed to approve the 1-hour ozone maintenance plan for Santa Barbara County nonattainment area (“Santa Barbara”), including the motor vehicle emissions budgets, and to grant the State's request that we redesignate the area to attainment, in accordance with Clean Air Act (“CAA”) section 107(d)(3)(E). The maintenance plan and budgets are contained in the Final 2001 Clean Air Plan (“CAP”), which was adopted by the Santa Barbara County Air Pollution Control District (“SBCAPCD”) on December 19, 2002, and submitted by the California Air Resources Board on February 21, 2003. The proposal contains detailed information on the SIP submittal and our evaluation of the submittal against applicable CAA provisions and EPA policies relating to 1-hour ozone maintenance SIPs and budgets.

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

We received no public comment on our proposed action.

In this document, we are finalizing our proposed approval of the Final 2001 CAP for Santa Barbara as meeting applicable provisions for 1-hour ozone maintenance plans, under CAA sections 175A and 110(k)(3). As part of this action, we are finalizing approval of the following specific plan elements. We indicate on which page of our proposal the element is discussed.

(1) Approval of the emission inventories for 1999, 2005, 2010, and 2015, including a growth conformity allowance for the Vandenberg Air Force Base, under CAA section 172(c)(3) and 175A—68 FR 14384.

(2) Approval of the maintenance demonstration through 2015, under CAA section 175A—68 FR 14384-5.

(3) Approval of the SBCAPCD commitment to continue ambient monitoring of the 1-hour ozone NAAQS, under CAA section 175A—68 FR 14385.

(4) Approval of the SBCAPCD commitment to track progress through triennial updates to verify maintenance of the 1-hour ozone NAAQS, under CAA section 175A—68 FR 14385.

(5) Approval of the contingency measures, under CAA section 175A(d)—68 FR 14385 (Table 2). 1

(6) Approval of the 2005 and 2015 motor vehicle emissions budgets for volatile organic compounds (VOC) and nitrogen oxides (NO X ), under CAA sections 176(c)(2) as adequate for maintenance of the 1-hour ozone NAAQS and for transportation conformity purposes—68 FR 14385-14386.

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 8, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

• Crop Production (NAICS 111, e.g.)

•  Animal Production (NAICS 112, e.g.)

• Food Manufacturing (NAICS 311, e.g.)

•  Pesticide Manufacturing (NAICS 32532, e.g.)

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-2003-0220. 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. To access the OPPTS Harmonized Guidelines referenced in this document, go directly to the guidelines at http://www.epa.gov/opptsfrs/home/guidelin.htm .

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 20, 2002 (67 FR 12990) (FRL-6824-4), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C. 346a, as amended by FQPA (Public Law 104-170), announcing the filing of a pesticide petition (PP 7F4845) by Syngenta Crop Protection, Inc., P.O. Box 18300, Greensboro, NC 27419. That notice included a summary of the petition prepared by Syngenta Crop Protection, Inc., the registrant. There were no comments received in response to the notice of filing.

The original petition requested that 40 CFR 180.505 be amended by establishing a tolerance for combined residues of the insecticide emamectin benzoate, 4′-epi-methylamino-4′-deoxyavermectin B 1 benzoate (a mixture of a minimum of 90% 4′-epi-methylamino-4′-deoxyavermectin B 1a and a maximum of 10% 4′-epi-methlyamino-4′deoxyavermectin B 1b benzoate), and its metabolites 8,9 isomer of the B 1a and B 1b component of the parent insecticide in or on the raw agricultural commodities fruiting vegetables (except Cucurbits) group at 0.02 parts per million (ppm), Brassica leafy vegetables group at 0.025 ppm, leafy vegetables (except Brassica ) group at 0.1 ppm, cottonseed at 0.025 ppm, cotton gin byproducts at 0.5 ppm.

Based on the EPA analysis of the residue chemistry and toxicological databases, the petition was subsequently revised to express the tolerance as the combined residues of emamectin, (a mixture of a minimum of 90% 4 " -epi-methylamino-4 " -deoxyavermectin B 1a and maximum of 10% 4 " -epi-methylamino-4 " -deoxyavermectin B 1b ) and its metabolites 8,9-isomer of the B 1a and B 1b component of the parent (8,9-ZMA), or 4 " -deoxy-4 " -epi-amino-avermectin B 1a and 4 " -deoxy-4 " -epi-amino-avermectin B 1b ; 4 " -deoxy-4 " -epi-amino avermectin B 1a (AB 1a ); 4 " -deoxy-4 " -epi-( N -formyl- N -methyl)amino-avermectin (MFB 1a ); and 4 " -deoxy-4 " -epi-( N -formyl)amino-avermectin B 1a (FAB 1a ), in or on Brassica leafy vegetables (crop group 5) at 0.05 ppm; turnip greens at 0.05 ppm; cotton, undelinted seed at 0.025 ppm; cotton gin byproduct at 0.05 ppm; leafy vegetables (except Brassica ) (crop group 4) at 0.10 ppm; fruiting vegetables (crop group 8) at 0.02 ppm; and tomato paste at 0.15 ppm. In addition, tolerances are established for indirect or inadvertent combined residues of emamectin (MAB 1a + MAB 1b isomers) and the associated 8,9-Z isomers (8,9-ZB 1a + 8,9-ZB 1b ) in or on milk and fat of cattle, goats, hogs, horses, and sheep at 0.003 ppm; meat byproducts, except liver, of cattle, goats, hogs, horses, and sheep at 0.005 ppm; liver of cattle, goats, hogs, horses, and sheep at 0.020 ppm; and meat of cattle, goat, hogs, horses, and sheep at 0.002 ppm. Note that the tolerance expression in 40 CFR 180.505 is being changed from emamectin benzoate to emamectin since the enforcement method, Method 244-92-3, Revision 1, analyzes residues of emamectin MAB 1 isomers (not emamectin benzoate), 8,9-ZMA, AB 1a , MFB 1a , and FAB 1a in/on crops.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(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....”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

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. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for a tolerance for combined residues of emamectin, (a mixture of a minimum of 90% 4 " -epi-methylamino-4 " -deoxyavermectin B 1a and maximum of 10% 4 " -epi-methylamino-4 " -deoxyavermectin B 1b ) and its metabolites 8,9-isomer of the B 1a and B 1b component of the parent (8,9-ZMA), or 4 " -deoxy-4 " -epi-amino-avermectin B 1a and 4 " -deoxy-4 " -epi-amino-avermectin B 1b ; 4 " -deoxy-4 " -epi-amino avermectin B 1a (AB 1a ); 4 " -deoxy-4 " -epi-( N -formyl- N -methyl)amino-avermectin (MFB 1a ); and 4 " -deoxy-4 " -epi-( N -formyl)amino-avermectin B 1a (FAB 1a ), in or on Brassica leafy vegetables (crop group 5) at 0.05 ppm; turnip greens at 0.05 ppm; cotton, undelinted seed at 0.025 ppm; cotton gin byproduct at 0.05 ppm; leafy vegetables (except Brassica ) (crop group 4) at 0.10 ppm; fruiting vegetables (crop group 8) at 0.02 ppm; and tomato paste at 0.15 ppm. In addition, tolerances are established for indirect or inadvertent combined residues of emamectin (MAB 1a + MAB 1b isomers) and the associated 8,9-Z isomers (8,9-ZB 1a + 8,9-ZB 1b ) in or on milk and fat of cattle, goats, hogs, horses, and sheep at 0.003 ppm; meat byproducts, except liver, of cattle, goats, hogs, horses, and sheep at 0.005 ppm; liver of cattle, goats, hogs, horses, and sheep at 0.020 ppm; and meat of cattle, goat, hogs, horses, and sheep at 0.002 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies 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. The nature of the toxic effects caused by emamectin are discussed in Table 1 of this unit as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies reviewed.

The dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intraspecies differences.

As explained below in Unit III.D.3, EPA determined that the special FQPA SF be reduced to 1x. However, EPA also determined that an additional 3x Modifying Uncertainty Factor (UF M ) is required for application of the endpoint (based on the 15-day mouse neurotoxicity study) to acute- and short-term scenarios, to account for the steepness of the dose-response curve and the severity of effects at the LOAEL (death and neuropathology). A 3x UF M was judged to be adequate (as opposed to a 10X) because: (1) A NOAEL was established in this study; (2) although the effects of concern are seen after repeated dosing, the NOAEL here is used for a single exposure risk assessment; and (3) the most sensitive endpoint in the most sensitive species is selected. For intermediate- and chronic/long-term scenarios, EPA determined that a 10x UF M is required to account for steepness of the dose-response curve, severity of effects at the LOAEL (death and neuropathology), and the use of a short-term study for long-term risk assessment.

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor (SF) is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic population adjusted dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA SF.

For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.

The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x 10 -6 or one in a million). Under certain specific circumstances, MOE calculations will be used for the carcinogenic risk assessment. In this non-linear approach, a “point of departure” is identified below which carcinogenic effects are not expected. The point of departure is typically a NOAEL based on an endpoint related to cancer effects though it may be a different value derived from the dose response curve. To estimate risk, a ratio of the point of departure to exposure (MOE cancer = point of departure/exposures) is calculated. A summary of the toxicological endpoints for emamectin used for human risk assessment is shown in the following Table 2:

1. Dietary exposure from food and feed uses . Tolerances have been established (40 CFR 180.505) for the combined residues of emamectin and its metabolites, in or on a variety of raw agricultural commodities and livestock. Tolerances range from 0.002 to 0.05. Risk assessments were conducted by EPA to assess dietary exposures from emamectin in food as follows:

i. Acute exposure . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one day or single exposure. The Dietary Exposure Evaluation Model (DEEM ® ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1994-1996 and 1998 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the acute exposure assessments: A highly refined, Tier 3, acute dietary exposure assessment was conducted for the general U.S. population and various population subgroups. This was a probabilistic assessment using anticipated residue estimates from the current and previously submitted field trial data as well as EPA percent crop treated (PCT) estimates for a number of commodities. PCT estimates used were 1% for cotton commodities; 52% for head lettuce; 2.5% for the subgroup 4A (leafy greens); 20% for the subgroup 4B (leaf petioles), the group 5 ( Brassica leafy vegetables), and peppers; and 11% for tomatoes and its processing commodities. Anticipated residues were used for group 5 ( Brassica leafy vegetables), group 4 (leafy vegetables (except Brassica )), and group 8 (fruiting vegetables). The calculation of anticipated residues for tomatoes (a representative commodity in group 8) used the following approach: For residues of MAB 1a and MAB 1b which were below the limit of detection ( < LOD), calculation was based on the MAB 1a and MAB 1b ratio of 9:1; a residue value of 0.0005 ppm (½ LOD) for MAB 1a and a residue value of 0.000055 ppm (1/9 of the ½ LOD or 1/18 LOD) for MAB 1b was reported in the assessment. For residues of L'649 and (L'599 + L'831), a residue value of 0.0005 ppm (the ½ LOD) was reported if residues were below the limit of detection ( < LOD). Anticipated residue levels of 0.0003 ppm for milk and skim milk, and 0.0009 ppm for cream were used. The recommended tolerance level residues were used for all other crops and meat products. Additionally, default DEEM ® (version 7.76) concentration factors were used when necessary.

The acute dietary exposure estimates are below EPA's level of concern ( < 100% aPAD) at the 99.9 th exposure percentile for the general U.S. population (29% of the aPAD) and all other population subgroups. The most highly exposed population subgroup is children 3-5 years old, at 58% of the aPAD. The acute assessment was highly refined, however, inclusion of additional PCT data and modified concentration/processing factors could aid in further refining the acute dietary assessment.

ii. Chronic exposure . In conducting this chronic dietary risk assessment the (DEEM ® ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1994-1996 and 1998 nationwide CSFII and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: For chronic exposure and risk assessment, an estimate of the residue level in each food or food-form (e.g., orange or orange juice) on the food commodity residue list is multiplied by the average daily consumption estimate for that food/food form. The resulting residue consumption estimate for each food/food-form is summed with the residue consumption estimates for all other food/food-forms on the commodity residue list to arrive at the total average estimated exposure. Exposure is expressed in mg/kg body weight/day and as a percent of the cPAD. This procedure is performed for each population subgroup. A somewhat refined Tier 2 chronic dietary exposure assessment was conducted for the general U.S. population and various population subgroups. The assumptions of the assessment were tolerance level residues for all commodities except milk (for which anticipated residue estimates were used), and PCT estimates for a number of commodities. PCT estimates used were 0.4% for cotton commodities; 26% for head lettuce; 1.5% for the subgroup 4A (leafy greens); 10% for the subgroup 4B (leaf petioles), the group 5 ( Brassica leafy vegetables), and peppers; and 6% for tomatoes and its processing commodities. Anticipated residue levels of 0.0003 ppm for milk and skim milk, and 0.0009 ppm for cream were used. The recommended tolerance level residues were used for all other crops and meat products. Additionally, default DEEM ® (version 7.76) concentration factors were used when necessary.

The chronic dietary exposure estimates are below HED's level of concern ( < 100% cPAD) for the general U.S. population (19% of the cPAD) and all population subgroups. The most highly exposed population subgroup is children 1-2 years old, at 34% of the cPAD. The chronic assessment was somewhat refined; inclusion of ARs, additional PCT information, and modified concentration/processing factors would further refine the chronic dietary assessment.

iii. Cancer . Emamectin is classified as a “not likely” human carcinogen based on the lack of evidence of carcinogenicity in male and female rats or male and female mice at doses that were judged to be adequate to assess the carcinogenic potential of the chemical.

iv. Anticipated residue and percent crop treated (PCT) information . Section 408(b)(2)(E) of the FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide chemicals that have been measured in food. If EPA relies on such information, EPA must require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. Following the initial data submission, EPA is authorized to require similar data on a time frame it deems appropriate. As required by section 408(b)(2)(E) of the FFDCA, EPA will issue a data call-in for information relating to anticipated residues to be submitted no later than 5 years from the date of issuance of this tolerance.

Section 408(b)(2)(F) of the FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if the Agency can make the following findings: Condition 1, that the data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue; Condition 2, that the exposure estimate does not underestimate exposure for any significant subpopulation group; and Condition 3, if data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by section 408(b)(2)(F) of the FFDCA, EPA may require registrants to submit data on PCT.

The Agency used PCT information as detailed above under Unit III.C.1.i and III.C.1.ii Different PCTs and anticipated residues were used for the acute versus the chronic dietary risk from food and feed uses as explained in these units.

The Agency believes that the three conditions listed in Unit III.C.1.iv have been met. With respect to Condition 1, PCT estimates for existing registrations are derived from Federal and private market survey data, which are reliable and have a valid basis. EPA uses a weighted average PCT for chronic dietary exposure estimates. This weighted average PCT figure is derived by averaging State-level data for a period of up to 10 years, and weighting for the more robust and recent data. A weighted average of the PCT reasonably represents a person's dietary exposure over a lifetime, and is unlikely to underestimate exposure to an individual because of the fact that pesticide use patterns (both regionally and nationally) tend to change continuously over time, such that an individual is unlikely to be exposed to more than the average PCT over a lifetime. For acute dietary exposure estimates, EPA uses an estimated maximum PCT. The exposure estimates resulting from this approach reasonably represent the highest levels to which an individual could be exposed, and are unlikely to underestimate an individual's acute dietary exposure. For new uses, PCT estimates are based on the use of existing alternative insecticides against insects that emmamectin will control. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which emamectin may be applied in a particular area.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for emamectin in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of emamectin.

The Agency uses the First Index Reservoir Screening Tool (FIRST) or the Pesticide Root Zone/Exposure Analysis Modeling System (PRZM/EXAMS), to produce estimates of pesticide concentrations in an index reservoir. The screening concentration in ground water (SCI-GROW) model is used to predict pesticide concentrations in shallow groundwater. For a screening-level assessment for surface water EPA will use FIRST (a tier 1 model) before using PRZM/EXAMS (a tier 2 model). The FIRST model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. While both FIRST and PRZM/EXAMS incorporate an index reservoir environment, the PRZM/EXAMS model includes a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.

None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would ever exceed human health levels of concern.

Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %RfD or %PAD. Instead, drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to emamectin they are further discussed in the aggregate risk Unit III.E.

Refined (Tier II) surface water concentrations were developed for emamectin and its metabolites with the PRZM/EXAMS model, using an index reservoir scenario for the aerial and ground applications of emamectin on cotton. The model assumes that emamectin is applied at the maximum label rate (0.015 lb active ingredient/acre with a maximum of 0.09 lb active ingredient/acre/season for the dispersable granule; and 0.016 lb active ingredient/acre with a maximum of 0.064 lb active ingredient/acre/season for the emulsifiable concentrate). The results indicate that emamectin and its metabolites have a very low potential to reach surface waters as dissolved species. However, emamectin does have the potential to reach surface water bodies through erosion of soil particles to which the compound is sorbed. One percent of the application rate is assumed to drift from the application site during ground application. For the additional proposed aerial application, 5% of the application rate is assumed to drift from the application site to water bodies.

Surface water and ground water EECs are based on the PRZM/EXAMS and SCI-GROW models respectively. The EECs of emamectin for acute exposure are estimated to be 0.298 parts per billion (ppb) for surface water from aerial application and 0.293 ppb for surface water from ground application. The EEC for chronic exposure is estimated to be 0.080 ppb for surface water. Ground water EECs are based on the Tier I SCI-GROW model. The EEC of emamectin for both acute and chronic exposure is estimated to be 0.006 ppb for ground water.

3. From non-dietary exposure . The term “residential exposure” is used in this preamble to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Emamectin is not registered for use on any sites that would result in residential exposure.

4. Cumulative exposure to substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, 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 does not have, at this time, available data to determine whether emamectin has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, emamectin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that emamectin has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).

1. In general . Section 408 of the FFDCA provides that EPA shall apply an additional ten-fold 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 data base on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans.

2. Prenatal and postnatal sensitivity . EPA concluded that there is low concern, and no residual uncertainty, for pre- and/or postnatal toxicity resulting from exposure to emamectin, based on the following:

i. There is no quantitative or qualitative evidence of increased susceptibility of rat and rabbit fetuses to in utero exposure in developmental studies. There is no quantitative evidence of increased susceptibility of rat offspring in the two generation reproduction study, however, an increase in qualitative susceptibility was determined. EPA determined that the concern is low because:

(a) There was a clear NOAEL for offspring toxicity.

(b) Effects unique to offspring (decreased fertility in F 1 adults, and clinical signs (tremors and hind limb extensions during and following lactation)) were seen at the same dose that caused parental systemic toxicity (decreased body weight gain and histopathological lesions in the brain and spinal cord).

(c) The decreased fertility seen in F 1 adults may have been due to histopathological lesions in the brain and central nervous system (seen in both F 0 and F 1 generations), rather than due to a direct effect on the reproductive system.

ii. There is evidence of increased qualitative and quantitative susceptibility in the rat developmental neurotoxicity study, but EPA determined that the concern is low because: Although multiple offsping effects (including decreased pup body weight, head and body tremors, hind limb extension and splay, changes in motor activity and auditory startle) were seen at the highest dose, and no maternal effects were seen at any dose, there was a clear NOAEL for offspring toxicity at the low dose, and the offspring LOAEL (at the mid dose) is based on a single effect seen on only one day (decreased motor activity on PND 17) and no other offspring toxicity was seen at the LOAEL.

3. Conclusion . EPA concluded that the toxicology database was complete for FQPA purposes and that there are no residual uncertainties for pre-/post-natal toxicity. Based on the quality of the data, EPA determined that the special FQPA SF should be reduced to 1x. However, as explained in Unit III.3.B. of this preamble, EPA determined that an additional 3x or 10x modifying uncertainty factor should be used for short-term or intermediate-term exposure, respectively. The recommendation for the 1x FQPA SF is based on the following:

• The toxicological database is complete for FQPA assessment.

• The acute dietary food exposure assessment utilizes anticipated residue estimates based on carefully reviewed field trial data and PCT data verified by EPA for several commodities (100% crop treated was assumed for remaining commodities). By using the 99.9 th percentile exposure values for comparison to the aPAD, actual risks are not likely to be underestimated.

• The chronic dietary food exposure assessment utilizes tolerance level residue estimates and PCT data verified by EPA for several commodities (100% crop treated was assumed for remaining commodities). This assessment is somewhat refined and based on reliable data that is not likely to underestimate exposure/risk.

• The dietary drinking water assessment utilizes water concentration values generated by model and associated modeling parameters which are designed to provide conservative, health protective, high-end estimates of water concentrations which will not likely be exceeded.

• There are no proposed or existing residential uses for emamectin.

To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates DWLOCs which are used as a point of comparison against the model estimates of a pesticide's concentration in water (EECs). DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water [e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + residential exposure). This allowable exposure through drinking water is used to calculate a DWLOC.

A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the USEPA Office of Water are used to calculate DWLOCs: 2 liter (L)/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: Acute, short-term, intermediate-term, chronic, and cancer.

When EECs for surface water and ground water are less than the calculated DWLOCs, EPA concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which EPA has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because EPA considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, EPA will reassess the potential impacts of residues of the pesticide in drinking water as a part of the aggregate risk assessment process.

1. Acute risk . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure (at the 99.9 th percentile) from food to emamectin will occupy 29% of the aPAD for the U.S. population, 23% of the aPAD for females 13 years and older, 51% of the aPAD for all infants ( < 1 year old) and 58% of the aPAD for children 3-5 years old. In addition, there is potential for acute dietary exposure to emamectin in drinking water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the aPAD, as shown in the following Table 3:

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to emamectin from food will utilize 19% of the cPAD for the U.S. population, 17% of the cPAD for females 13 years and older, 9% of the cPAD for all infants ( < 1 year old) and 34% of the cPAD for children 1-2 years old. There are no residential uses for emamectin that result in chronic residential exposure to emamectin. In addition, there is potential for chronic dietary exposure to emamectin in drinking water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the following Table 4:

3. Short-term risk . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Emamectin is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

4. Intermediate-term risk . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Emamectin is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

5. Aggregate cancer risk for U.S. population . Emamectin is classified as a “not likely” human carcinogen based on the lack of evidence of carcinogenicity in male and female rats or male and female mice at doses that were judged to be adequate to assess the carcinogenic potential of the chemical. Therefore, EPA does not expect it to pose a cancer risk. As a result, a quantitative cancer dietary exposure analysis was not performed.

6. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to emamectin residues.

An analytical method (HPLC-fluorescence) for the enforcement of tolerances for residues of emamectin and its metabolites in/on plant commodities has been validated by EPA and submitted to the FDA for inclusion in the Pesticide Analytical Manual (PAM) Vol. II. In addition, an analytical method (HPLC-fluorescence) for the enforcement of tolerances for residues of emamectin and its metabolites in/on ruminant commodities has been submitted to EPA for review. The ruminant method has been validated by an independent laboratory but EPA validation is required as a condition of registration.

There are currently no Codex, Canadian, or Mexican maximum residue limits on emamectin or its metabolites.

The following studies must be submitted as conditions for product registrations related to these tolerances: A storage stability study for cotton seed, gin byproducts, and processed commodities which reflect the storage intervals and conditions of the submitted field trial and processing studies; additional storage stability studies to support 19 month storage intervals for bell pepper and tomatoes; a new tomato processing study with tomatoes treated at an exaggerated rate (up to 5x the maximum proposed seasonal application rate); three additional spinach field trials conducted in Regions X, VI, and II (one study each) based on OPPTS Guidelines 860.1500; and a 28-day inhalation study using the CF-1 mouse. In addition, a successful method validation by EPA is required for the high performance liquid chromatography-fluorescence method submitted for residues in ruminant commodities; the registrant is required to make any necessary modifications resulting from the EPA method review.

Therefore, the tolerance is established for combined residues of emamectin, (a mixture of a minimum of 90% 4 " -epi-methylamino-4 " -deoxyavermectin B 1a and maximum of 10% 4 " -epi-methylamino-4 " -deoxyavermectin B 1b ) and its metabolites 8,9-isomer of the B 1a and B 1b component of the parent (8,9-ZMA), or 4 " -deoxy-4 " -epi-amino-avermectin B 1a and 4 " -deoxy-4 " -epi-amino-avermectin B 1b ; 4 " -deoxy-4 " -epi-amino avermectin B 1a (AB 1a ); 4 " -deoxy-4 " -epi-( N -formyl- N -methyl)amino-avermectin (MFB 1a ); and 4 " -deoxy-4 " -epi-( N -formyl)amino-avermectin B 1a (FAB 1a ), in or on Brassica leafy vegetables (crop group 5) at 0.05 ppm; turnip greens at 0.05 ppm; cotton, undelinted seed at 0.025 ppm; cotton gin byproduct at 0.05 ppm; leafy vegetables (except Brassica ) (crop group 4) at 0.10 ppm; fruiting vegetables (crop group 8) at 0.02 ppm; and tomato paste at 0.15 ppm. In addition, tolerances are established for indirect or inadvertent combined residues of emamectin (MAB 1a + MAB 1b isomers) and the associated 8,9-Z isomers (8,9-ZB 1a + 8,9-ZB 1b ) in or on milk and fat of cattle, goats, hogs, horses, and sheep at 0.003 ppm; meat byproducts, except liver, of cattle, goats, hogs, horses , and sheep at 0.005 ppm; liver of cattle, goats, hogs, horses, and sheep at 0.020 ppm; and meat of cattle, goat, hogs, horses, and sheep at 0.002 ppm. Note that the tolerance expression in 40 CFR 180.505 is being changed from emamectin benzoate to emamectin since the enforcement method, Method 244-92-3, Revision 1, analyzes residues of emamectin MAB 1 isomers (not emamectin benzoate), 8,9-ZMA, AB 1a , MFB 1a , and FAB 1a in/on crops.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2003-0220 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 8, 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 VI.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-2003-0220, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.1. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule establishes a tolerance 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 tolerance 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).

You may be 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 the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have 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-2003-0134. 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. To access the OPPTS Harmonized Guidelines referenced in this document, go directly to the guidelines at http:// www.epa.gov/opptsfrs/home/guidelin.htm.

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 November 21, 2001 (66 FR 58481) (FRL-6802-2), EPA issued a notice pursuant to section 408(d)(3) of the FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 1F6316) by Platte Chemical Company, 419 18th Street, Greeley, CO 80632. As required by section 408(d)(2)(A)(i)(I), this notice included a summary of the petition prepared by the petitioner Platte Chemical Company. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of diallyl sulfides.

New 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) 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) 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) 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 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.

DADs are a composition of diallyl sulfides that includes diallyl monosulfide, diallyl disulfide, diallyl trisulfide, and diallyl pentasulfide. They are naturally occurring compounds found in Allium crops, including onion and garlic and are partially responsible for the distinctive odor of garlic. The end-use product, Alli-Up is proposed for use as a soil fumigant solution for the control of white rot ( Sclerotium cepivorum ) in garlic, leeks, onions, and shallots. It contains 90% of DADs in a liquid formulation (8.3 lbs of active ingredient per gallon). Application is recommended for any field that shows evidence or has a history of white rot infestations. When applied to infected soils in conjunction with a rotational crop, DADs will mimic the presence of an Allium crop, which will in turn stimulate the germination of white rot spores ( sclerotia ). The germinated spores will subsequently perish since no host crop is present. The product is applied through conventional soil fumigation equipment such as an enclosed shanking system.

Toxicity studies submitted in support of the tolerance exemption petition, and the Agency reviews are compiled in the public docket established for this action under the docket ID number OPP-2003-0134.

1. Acute oral toxicity (OPPTS Harmonized Guideline 870.1100; 152-10; Master Record Identification Number (MRID) 45422907) . Five male and 5 female rats were dosed with 200, 600, and 1,000 milligram/kilogram (mg/kg) and 10 of each were dosed with 5,000 mg/kg. The acute oral LD 50 was determined at 346 mg/kg. Treated rats displayed a number of abnormalities including breathing abnormalities, wobbly gait, decreased defecation, decreased activity, and pilo-erection. The abnormalities are attributed to hemolytic anemia as it is experienced by rodents when feeding on materials rich on sulfur and derived from onion and garlic.

2. Acute dermal toxicity (OPPTS Harmonized Guideline 870.1200; 152-11; MRID 45422908) . Five male and 5 female rats were dosed with 1,500, 1,750, and 2,000 mg/kg, observed daily and weighed weekly. The acute dermal LD 50 of DADs in male rats was determined to be 1,826 mg/kg, in female 2,009 mg/kg, and in sexes combined 1,967 mg/kg, or a Toxicity Category II.

3. Primary eye irritation (OPPTS Harmonized Guideline 870.2400; 152-13; MRID 45422909) . Six rabbits were administered DADs in the right eye with the left eye serving as an untreated control. Exposure of the test article produced corneal opacity in 3/6 test eyes at the 1 or 24-hour scoring interval. Conjunctivitis was noted in 6/6 test eyes at the 1-hour testing interval. The conjunctival irritation resolved completely in all animals by study day 14. Under the conditions of the test, DADs are considered a moderate eye irritant, and Toxicity Category III for eye irritation.

4. Primary dermal irritation (OPPTS Harmonized Guideline 870.2500; 152-14; MRID 45422910) . These compound are Toxicity Category II for dermal irritation. Severe skin reactions of the rabbits exposed, with evident erythema grade 2 and 1 at 1 hour post-exposure were observed.

5. Dermal sensitization (OPPTS Harmonized Guideline 870.2600; 152-15; MRID 45422911) . A dermal sensitization potential test for DADs was evaluated using guinea pigs. DADs were found to be contact dermal sensitizers in guinea pigs, in accordance with the Buehler test.

6. Mutagenicity (OPPTS Harmonized Guideline 870.5195; MRID 45422912) . A Salmonella /mammalian-microsome reverse mutation assay (Ames Test) was done using DADs. The assay evaluated the test article for its ability to induce reverse mutations at the histidine locus in the genome of specific Salmonella typhimurium tester strains in both the presence and absence of an exogenous metabolic activation system of mammalian microsomal enzymes derived from Arocolr TM induced rat liver. The results of the assay indicate that under the conditions of the study, DADs did not cause a positive increase in the number of histidine revertants per plate of any of the tester strains either in the presence or absence of the microsomal enzymes prepared from the Arocolr TM induced rat liver (S9). As a result, Diallyl disulfide, the main component of DADs, are not considered mutagenics.

 Acute inhalation toxicity (OPPTS Harmonized Guideline 870.1300; 152-12).

 Mammalian mutagenicity tests (OPPTS Harmonized Guideline 870.5195) except for an Ames test.

 90-Day feeding (1 species) (OPPTS Harmonized Guideline 870.3100).

 90-Day dermal (1 species) (OPPTS Harmonized Guideline 870.3250).

 90-Day inhalation (1 species) (OPPTS Harmonized Guideline 870.3465).

 Teratogenicity (1 species) (OPPTS Harmonized Guideline 870.3700).

 Chronic exposure (OPPTS Harmonized Guideline 870.4100) (Tier III)

 Oncogenicity (OPPTS Harmonized Guideline 870.4200) (Tier III)

DADs are naturally present in garlic and other Allium crops and in fields planted with these crops. In spite of the long history of garlic consumption and exposure to DADs by humans, no immunotoxic effects, such as induced dysfunction or inappropriate suppressive or stimulatory responses in components of the immune system of humans or test animals have been reported and are not expected from the exposure to DADs. As a result, the waiver requests listed above were approved.

In examining aggregate exposure, FFDCA section 408 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).

The product Alli-Up containing DADs is intended for agricultural use as a soil fumigant for the purpose of suppression of onion white rot ( Sclerotia cepivorum ). The presence of DADs in the soil will stimulate the pathogen to become active and seek out its host, an Allium sp., which is not present. The pathogen will then perish. DADs in the soil are then subject to microbial breakdown and adsorption to soil particles. By the time the soil is prepared and ready for a new crop, most DADs have already dissipated. As a result, when new crops are planted, the likelihood of DADs residue present in the mature crop is considered low.

1. Food . From food and feed uses. As explained above, the presence of DADs residue in food is unlikely. Moreover, the primary source for human exposure to DADs would occur through the consumption of garlic, other Allium crops or garlic derived products. There have been no reports of adverse reactions to humans resulting from the consumption of Allium crops and derived products. The over-all toxicology profile of DADs suggests that the risk associated with acute exposures by the oral route would be low.

2. Drinking water exposure . Since Alli-Up will only be used as a soil fumigant, there is little if any, potential for drinking water exposure from pesticide drift in the surface water. Moreover, DADs in the soil are then subject to microbial breakdown and adsorption to soil particles and dissipation in the air. Therefore, the level of residues that might get into the ground water or surface water would most likely be negligible.

The potential for non-dietary exposure to DADs for the general population is unlikely because potential use sites are commercial agricultural. Since the material is shanked into the treated soil during commercial applications, any odor present would be similar to that of a commercial garlic field or to that arising from freshly cut or pressed garlic as found in a typical household kitchen. EPA is unaware of any reports of adverse reactions to humans resulting from Allium crops and derived products odor or consumption.

Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, 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 does not have, at this time, available data to determine whether DADs have a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, DADs do not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that DADs have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).

1. In general . Section 408 of the FFDCA 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 data base on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans.

2. Prenatal and postnatal sensitivity . Based on the lack of observed developmental toxicity, EPA has concluded there is reasonable certainty that no harm to infants, children, or adults will result from aggregate exposure to DADs residues. Exemption of DADs from the requirements of a tolerance should pose no significant risk to humans or the environment.

3. Conclusion . There is reasonable certainty that no harm will result from aggregate exposure to residues of diallyl sulfides to the U.S. population. This includes all anticipated dietary exposures and all other exposures for which there is reliable information. The Agency has arrived at this conclusion based on the low levels of toxicity, the long history of safe consumption of garlic and onions which naturally contain diallyl sulfides, and the lack of exposure. Levels of exposure resulting from use of diallyl sulfides would be significantly lower than those found in the U.S. population's consumption of onion and garlic foods (raw, cooked and processed). Moreover, the Agency concludes that diallyl sulfides is non-toxic to humans, including infants and children. Thus, there is 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. As a result, EPA has not used a margin of exposure (safety) approach to assess the safety of diallyl sulfides.

Based on the preceding assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to DAD residues.

EPA is required under section 408 of the FFDCA to develop a screening program to determine whether certain substances (including all pesticide active and other ingredients) “may have an effect in humans that is similar to an effect produced by a naturally occurring estrogen, or other such endocrine effects as the Administrator may designate.” Following the recommendations of its Endocrine Disruptor Screening and Testing Advisory Committee (EDSTAC), EPA determined that there is no scientific basis for including, as part of the program, the androgen and thyroid hormone systems in addition to the estrogen hormone system. EPA also adopted EDSTAC's recommendation that the program include evaluations of potential effects in wildlife. For pesticide chemicals, EPA will use FIFRA and, to the extent that effects in wildlife may help determine whether a substance may have an effect in humans, FFDCA authority to require wildlife evaluations. As the science develops and resources allow, screening of additional hormone systems may be added to the Endocrine Disruptor Screening Program (EDSP). When the appropriate screening and/or testing protocols being considered under the Agency's Endocrine Disruptor Screening Program have been developed, DADs may be subjected to additional screening and/or testing to better characterize effects related to endocrine disruption.

Based on available data, no endocrine system-related effects have been identified with consumption of DADs. In addition, DADs do not share any structural similarity to any known endocrine disruptive chemical.

EPA is establishing an exemption from the requirement of a tolerance for the reasons stated above. Because a tolerance exemption does not establish numerical limit for the amount of the pesticide chemical residues that may be present, and for the reasons stated above that led the Agency to conclude that a tolerance exemption was warranted, the Agency has concluded that an analytical method is not necessary for enforcement purposes for DADs.

No Codex maximum residue levels are established for residues of DADs in or on any food or feed crop. There are no established tolerances or exemptions from tolerance for DADs in the United States. The Agency has classified DADs as a biochemical pesticide.

Based on the toxicology data submitted, there is reasonable certainty no harm will result from aggregate exposure of residues of DADs to the U.S. population, including infants and children, This includes all anticipated dietary exposures and all other exposures for which reliable data were submitted, accepted and reviewed. The Agency has no reports of adverse reactions of humans resulting from Allium crops and derived products' odor or consumption. As a result, EPA establishes an exemption from tolerance requirements pursuant to FFDCA section 408(c) and (d) for residues of DADs in or on garlic, leeks, onions, and shallots.

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 of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) 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 FFDCA sections 408 and 409. 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-2003-0134 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 8, 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 IX.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.2. Mail your copies, identified by docket ID number OPP-2003-0134, 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.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule 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 final rule implements measures contained in Framework 38 to the FMP. Details concerning the justification for and development of Framework 38 and the implementing regulations were provided in the preamble to the proposed rule (68 FR 27774, May 21, 2003) and are not repeated here.

The Exempted Grate Raised Footrope Trawl Fishery Area is an inshore area in the GOM extending to the Loran 44500 line and northward along the coast of Maine. This area most closely represents the historical whiting fishery and the area utilized by the fishermen who participated in the experimental whiting grate fisheries between 1996 and 2002. During the development of this framework adjustment, the Council considered three options for the fishery area, including the area option implemented by this final rule. The first option was the largest area under consideration and included an offshore component to the area implemented. Another option was the smallest area under consideration and represented a subset of the area implemented, where past experimental fishing was concentrated. The area implemented was selected by the Council, following an endorsement by the Plan Development Team (PDT), even though sampling was not conducted throughout the entire area. The area was selected because there were sufficient similarities (species composition, hydrography, habitat, current flow, bottom topography) between it and the subset where the experiment occurred to suggest that bycatch in the area implemented may be similar to that observed in the experiments. Thus, the rate of capture of regulated species is not expected to differ over the area implemented.

The season for the GOM Grate Raised Footrope Trawl Fishery is July 1- November 30. This period encompasses the traditional seasonal presence of whiting along the coast of Maine in the GOM and the period of documented catch and bycatch during research trials and experimental small mesh fisheries permitted by NMFS between 1996 and 2002. The PDT expressed support for a season from July 1 to November 30, based on documented catch rates and experimental data from 2001 and 2002, which were reviewed by the PDT in detail.

During the development of this framework adjustment, the Council considered establishing a season for this fishery from June 1 to November 30, but ultimately decided to eliminate the month of June from consideration after evaluating the data. These data show that the coastal whiting fishery started in July and ended in November.

The majority of experimental tows with the proposed sweepless trawl were conducted during October and November 2001 and 2002. Past experience demonstrates that the catches of whiting are generally lower and the bycatch of regulated species is relatively higher during these months than during the summer. Given that the 2001 and 2002 data for the proposed sweepless trawl show low absolute bycatch of regulated species during October and November, the gear is expected to fish with even lower bycatch during the summer.

There are several gear specifications for this fishery, including net specifications for the raised footrope trawl, that are consistent with those in the Cape Cod Bay whiting fishery, a requirement to use a sweepless trawl, and a requirement to use a Nordmore-style grate with a maximum bar spacing of 50 mm (1.97 inches). There is also a minimum codend mesh requirement of 2.5 inches (6.35 cm) (square or diamond mesh). Vessels may use net strengtheners in this fishery, provided that they are consistent with the existing net strengthener provisions for 2.5 inch (6.35 cm) mesh.

There is a maximum whiting/offshore hake possession limit of 7,500 lb (3,402 kg) for this fishery. Vessels using mesh larger than the minimum 2.5 inches (6.35 cm) may not possess more than 7,500 lb (3,402 kg) of whiting/offshore hake.

Incidental catch restrictions ensure that the net is fished properly and remains off the ocean bottom. The incidental catch restrictions mirror those incorporated into the Cape Cod Bay raised footrope trawl fishery, with the addition of a prohibition on the possession of dogfish. Vessels participating in the GOM Grate Raised Footrope Trawl Fishery may retain red hake, squid, butterfish, mackerel, alewife, and herring up to the amounts allowed by the regulations for those species, provided they comply with all regulations for those species. The following additional restrictions apply: A prohibition on the possession of regulated species (Atlantic cod, witch flounder, American plaice, yellowtail flounder, winter flounder, windowpane flounder, haddock, pollock, redfish, and white hake), monkfish, lobsters, skates, crabs, longhorn sculpin, sea raven, summer flounder (fluke), ocean pout, and spiny dogfish.

The prohibition on the possession of monkfish, lobsters, and skates help to ensure that fishermen rig the net correctly, so that the footrope is not in contact with the sea floor and thus, much less likely to catch these species. The prohibition on crabs, longhorn sculpin, sea raven and dogfish is designed to reduce the damage to whiting, a soft bodied fish, from abrasion and puncture, as well as to encourage keeping the footrope off the sea floor. Except for a few juveniles, very few dogfish are retained by the grate raised footrope trawl net, as they are too large to pass through the grate.

The PDT will annually review sea sampling data from the fishery and develop recommendations, as necessary, to ensure that groundfish bycatch remains at a minimum. Because this is a seasonal fishery, the Council may modify the specifications for this fishery through a framework adjustment to the FMP prior to the next season, if the PDT recommends adjustments to address regulated species bycatch.

The Council desires 10-percent observer coverage in this fishery. No later than 2006, NMFS, in consultation with the PDT, will determine if the level of observer coverage is sufficient to monitor catch and bycatch in this fishery with an acceptable level of precision. If practicable, the level of desired observer coverage will be adjusted (increased or decreased) consistent with that analysis. The PDT may recommend adjustments to the level of observer coverage prior to 2006, based on information examined during the annual review described above.

During the comment period, which ended June 5, 2003, one written comment on the proposed rule was received from the Maine Department of Marine Resources (ME DMR).

Comment : The ME DMR strongly supports the measures in the proposed rule to implement Framework 38, is committed to limited monitoring of this whiting fishery, and requested that NMFS also provide resources to assist in monitoring.

Response: NMFS concurs with the ME DMR's support of the management measures in Framework 38, and acknowledges the ME DMR's commitment to monitoring and request for monitoring assistance.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

Included in this final rule is the Final Regulatory Flexibility Analysis (FRFA) prepared pursuant to 5 U.S.C. 604(a). The FRFA incorporates the IRFA, the comments and responses to the proposed rule, and the analyses completed in support of this action. A copy of the IRFA is available from the Council (see ADDRESSES ).

A description of the reasons why this action is being considered, and the objectives of and legal basis for this action, is contained in the preamble to the proposed rule and is not repeated.

One comment was received during the comment period on the proposed rule, although it did not pertain to the IRFA. No significant issues were raised and, therefore, no changes to the proposed rule were required to be made as a result of public comments.

According to the Small Business Administration standards, any fish harvesting or hatchery business is a small business if it is independently owned and operated and not dominant in its field of operations and if it has annual receipts of not in excess of $3.5 million. Approximately 50 vessels are expected to participate in this exempted fishery. All of these vessels meet the criteria for “small entities” and therefore, all alternatives and analyses contained in Framework 38 necessarily reflect impacts on small entities.

Framework 38 does not contain any new recordkeeping, reporting, or compliance requirements.

The Council prepared an economic analysis that describes the economic impact that this rule will have on small entities. A summary of the analysis follows:

The Council considered the no action alternative--not establishing an exempted grate raised footrope trawl fishery. Implementation of the no action alternative would preclude fishermen from engaging in the small mesh silver hake fishery in the inshore GOM. This would result in lost opportunities to harvest whiting, and therefore, fishermen would be unable to earn additional revenue from this fishery (i.e., upwards of $1 million per year).

Slight variations to the action being implemented were considered by the Council as follows: Beginning the season in June; increasing the size of the exemption area; less restrictive gear restrictions or less restrictive incidental catch allowances. Several of these options (larger area, longer season) may have resulted in increased economic benefits to the participants compared with the action selected. However, there was sufficient uncertainty regarding bycatch rates of regulated multispecies associated with these options, and the Council considered the risk to associated bycatch species (particularly regulated multispecies) to be too great to warrant implementation of these options. Furthermore, the dissimilarities between the inshore area (Options 2A and 2B), specifically, differences in depth, temperature, bottom type, and community composition, caused the Council to conclude that they could not reasonably extrapolate the results of the experiment to the offshore component (Option 1). The uncertainty resulted from the lack of experimental data in the largest area and during the month of June. Because the experiment had not been conducted in the largest area, there were no data to support a decision to allow an exempted fishery in the area outside of the proposed area. Similarly, there were no experimental data during the month of June, but data from May indicated significantly higher bycatch rates than during the proposed season. Due to a lack of data on bycatch rates during the month of June and from the largest area, the exemption could not be justified. Therefore, the Council made a precautionary decision to constrain the exempted fishery to the season and area in which experimental data demonstrated low bycatch rates.

The economic effects resulting from the exempted grate raised footrope trawl fishery are not expected to be significant to the economy as a whole or to the fishing industry in general. The retrospective analysis included in the Framework 38 document indicates that there would be approximately 50 vessels expected to participate in this exemption fishery and they are expected to share in a possible $1 million increase in revenue (an additional $20,000 in annual revenue per participating vessel). Analyses included in the Framework 38 document indicate that the initial fishery using the grate raised footrope trawl would not be expected to expand quickly, but will allow bait fishing activities to occur and will likely result in activity levels similar to those that occurred in 1996. Given that the conditions under which the grate raised footrope trawl exemption fishery may be conducted (gear, area, season, etc.) are almost identical to the conditions under which the experimental fishery was operated, it is expected that a similar number of vessels, with similar characteristics (size, tonnage, homeport) as those that participated in the experimental fisheries and described in detail in the Framework 38 document, will participate in and benefit from this exemption fishery. The economic benefits, although not significant overall (approximately $1 million to the fishery as a whole), will be important to participating vessels (approximately $20,000 in increased annual revenue), especially those along the coast of Maine and in smaller ports adjacent to the Gulf of Maine.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule, or group of related rules, for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide will be sent to all holders of permits issued for the NE multispecies fishery. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from the Regional Administrator (see ADDRESSES ) and may be found at the following web site: http://www.nmfs.gov/ro/doc/nero.html .

Pursuant to 5 U.S.C. Section 553 (d)(1), the Assistant Administrator for Fisheries, NOAA, (AA) waives the 30-day delayed effectiveness period of the implementing regulations. Currently, the minimum mesh size and possession limit restrictions implemented under the Northeast Multispecies FMP prevent this fishery from occurring. Although these measures impose new regulations on participants in the GOM whiting grate raised footrope trawl fishery, the overall program to implement the exemption fishery relieves existing restrictions that prevent the fishery from occurring without these measures. Specifically, this fishery has been operating for the past several years on an experimental basis. This action will benefit the silver hake resource by allowing fishermen to target an abundant stock (whiting), thereby reducing the need to target less abundant and less stable stocks (Gulf of Maine cod). This rule relieves the restrictions that would otherwise prevent the exempted fishery from occurring. Any additional restrictions implemented through this rule are necessary constraints placed on the exemption fishery to protect the resource from overharvest and to ensure that compliance with the regulations governing the exemption fishery can be adequately monitored and enforced. Overall, this rule has a beneficial impact on the fishing industry by providing an opportunity to fish for whiting off the coast of Maine. Because there is no longer an experimental fishery, there is a need to implement these regulations in order to allow fishers to participate in the small mesh silver hake exempted fishery, currently off-limits because of existing restrictions.

Fishing, Fisheries, Reporting and recordkeeping requirements.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2003 TAC of Pacific ocean perch for the Western Regulatory Area was established as 2,700 metric tons (mt) by the final 2003 harvest specifications for groundfish in the GOA (68 FR 9924, March 3, 2003).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2003 TAC for Pacific ocean perch in the Western Regulatory Area will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,500 mt, and is setting aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the Western Regulatory Area of the GOA.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to exceeding the 2003 TAC for Pacific ocean perch in the Western Regulatory Area of the GOA, and therefore reduce the public's ability to use and enjoy the fishery resource.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2003 TAC of Pacific ocean perch for the Eastern Aleutian District was established as 3,238 metric tons (mt) by the final 2003 harvest specifications for groundfish in the BSAI (68 FR 9907, March 3, 2003).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2003 TAC for Pacific ocean perch in the Eastern Aleutian District will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,938 mt, and is setting aside the remaining 300 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the Eastern Aleutian District of the BSAI.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to exceeding the 2003 TAC for Pacific ocean perch in the Eastern Aleutian District, and therefore reduce the public's ability to use and enjoy the fishery resource.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the exclusive economic zone of the Bering Sea and Aleutian Islands Management Area (BSAI) under the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP). The North Pacific Fishery Management Council (Council) prepared, and NMFS approved, the FMP under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801, et seq. ). Regulations implementing the FMP appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

NMFS published a proposed rule to raise the maximum retainable percentage of pollock roe from 7 to 9 percent on February 11, 2003 (68 FR 6865), with comments invited through March 13, 2003. Two letters of comment were received by the end of the comment period and are responded to in the response to comments section. Additional background on the development of roe stripping regulations and the purpose and need for this action are contained in the preamble to the proposed rule.

This final rule raises the maximum retainable percentage of pollock roe from 7 to 9 percent to accommodate increased roe recovery rates that have been attained by industry since the passage of the American Fisheries Act (AFA). Under the AFA, vessels in the BSAI pollock fishery have formed voluntary cooperatives that have eliminated the open access race for fish that characterized the BSAI pollock fishery before the AFA. Under these AFA cooperatives, participating catcher/processors and motherships have been able to dramatically improve product recovery rates by slowing down their operations, using more refined production techniques, and fishing more selectively. This increase in productivity under the AFA was examined in detail in the final Environmental Impact Statement prepared for AFA-related Amendments 61/61/13/8 to the FMPs for the groundfish, crab, and scallop fisheries off Alaska.

In addition to these general gains in productivity, catcher/processors and motherships have achieved higher roe recovery rates under the AFA through an increased ability to time their fishing activity to coincide with periods of peak roe recovery and through an increased ability to selectively target schools of large mature pollock. When circumstances are ideal, some catcher/processors and motherships have reached or exceeded the current 7-percent limit.

In 1999, the Council examined roe recovery rates by catcher/processors in the BSAI and concluded that sufficient rationale existed to raise the maximum retainable roe amount to 9 percent. After reviewing data on roe recovery rates, NMFS agreed with the Council's rationale.

To determine the appropriate roe retention limit under the AFA, NMFS examined roe recovery information from the 2000, 2001, and 2002 roe seasons, which were managed under AFA cooperatives. During this time period, AFA catcher/processors and motherships processed 26,286 mt of pollock roe and 826,913 mt round-weight equivalent of primary pollock products for an aggregate roe recovery rate of 3.2 percent for the 2000-2002 roe seasons. However, during each of the 3 years, certain vessels were able to achieve roe recovery rates that exceeded 7 percent during weeks of peak roe recovery. In 2000, one catcher/processor achieved roe recovery rates of 8.0 and 9.0 percent during two reporting weeks in March. In 2001, seven catcher/processors exceeded the 7-percent limit during the week of March 24. During that week, these seven catcher/processors achieved an aggregate roe recovery rate of 8.4 percent. In 2002, only one catcher/processor exceeded the 7-percent limit, with a roe recovery rate of 8.3 percent during the week of March 17. During this 3-year time period, these excesses totaled 185.6 mt of roe product, or 61.9 mt annually.

This action also affects non-AFA catcher/processors that engage in directed fishing for other groundfish species in the BSAI and encounter incidental catch of pollock. The maximum retainable percentage of pollock is 20 percent for vessels engaged in directed fishing for other groundfish species. Existing requirements at 50 CFR 679.27 require vessels engaged in directed fishing for groundfish other than pollock to retain all incidental catch of pollock up to the 20-percent maximum retainable percentage limit. Such vessels also are allowed to recover roe from their incidental catch of pollock. Under this final rule, catcher/processors that are engaged in directed fishing for species other than pollock also are allowed to retain pollock roe up to the 9-percent limit.

NMFS received two comment letters by the end of the comment period on the proposed rule, both in favor of this action, but questioning the need for any retention limit. These comments are summarized and responded to here.

Comment 1: The United States Surimi Commission (USSC) supports the proposed increase in the roe-retention limit but would prefer a total removal of the roe retention restriction on the grounds that such a limit is redundant and unnecessary in light of subsequently adopted management measures that more effectively govern utilization rates onboard at-sea processing vessels in the BSAI pollock fishery. Since the passage of the AFA, the catcher/processors represented by USSC are producing nearly 50 percent more processed pollock per ton of catch than they were prior to the passage of the AFA. While overall roe recovery rates still average less than 7 percent, it is not unusual for vessels to encounter schools of fish at certain times of the year and in certain areas where the actual roe content of the catch exceeds 7 percent. In such instances, fishermen are faced with the dilemma of having to throw away the most valuable product they make in order to comply with an antiquated rule that was designed over a decade ago to discourage wasteful fishing and processing practices that are no longer extant in the fishery. An increase in the retention limit from 7 to 9 percent would help reduce the number of such instances. It would not, however, completely eliminate the possibility of vessels having to discard roe as roe recovery rates sometimes exceed 9 percent.

The better solution would be to eliminate the roe retention limit altogether. Although a roe retention limit may have been necessary in the past, it has long since outlived its usefulness insofar as the avoidance of wasteful fishing practices are concerned. Furthermore, all AFA catcher/processors now carry 2 full-time federal observers, must weigh all their catch on NMFS certified flow scales, and must comply with the requirements of the improved retention/improved utilization (IR/IU) program, which mandates 100 percent retention of pollock. Each of these measures are more than adequate to ensure that vessels are complying with the statutory ban on roe-stripping. For these reasons, the USSC would prefer to see the roe retention limit eliminated altogether rather than an upwards adjustment of an arbitrary limit that could still result in fishermen having to throw away portions of the most valuable product they produce. Such a result would seem to be dictated by National Standard 7's mandate that management measures “minimize costs and avoid unnecessary duplication.”

Response: As noted in the preamble to the proposed rule, the Council and NMFS considered and rejected the alternative of eliminating the roe retention limit for two reasons:

First, AFA cooperatives that have produced a more rationalized fishery are not necessarily permanent. AFA cooperatives, which are voluntary organizations, could dissolve at any point in the future if the members no longer believe that remaining in cooperatives is in their interest. The fishery then could potentially return to a race-for-fish in which wasteful practice could again emerge. By raising the retention limit so that it does not exceed 9 percent, this rule provides a direct incentive to continue participation in the AFA cooperatives which have contributed to the higher utilization of raw product and the increased efficiency of higher roe yields.

Second, non-AFA catcher/processors engaged in directed fisheries for other species are required to retain incidental catch of pollock up to the 20-percent maximum retainable percentage. The 9 percent maximum retainable roe percentage is an additional measure to reduce incentives by vessel operators to sort incidental catch of pollock for roe bearing fish. Such activity could increase discard amounts in a manner inconsistent with the intent of regulations intended to prevent roe stripping and reduce discard amounts under IR/IU. Therefore, maintaining a regulatory limit on roe retention is prudent to prevent the potential for a return to the practice of roe stripping in the event that the current AFA cooperatives chose to dissolve and to continue to limit the practice of roe stripping by vessels in non-AFA fisheries.

NMFS examined roe recovery data from 2000 to 2002 demonstrating that recovery rates have increased during some weekly periods from less than 7 percent to 8 and 9 percent. This data suggests that a recovery rate of 9 percent represents a current upper limit for AFA catcher processors and motherships. This rate of 9 percent is sufficient to capture the benefits of a higher recovery rate while avoiding the costs associated with discarding roe. Therefore, NMFS has determined that establishing a 9 percent roe retention limit is consistent with National Standard 7.

Comment 2: The At-sea Processors Association (APA) questions the need for any limit on the percentage of roe that may be retained in the BSAI pollock fishery given that: (1) There is no economic or other incentive for vessels in the directed pollock fishery to conduct roe stripping under the current management regime, (2) other rules and regulations now make roe stripping illegal and impractical, and (3) even a 9 percent cap could still result in the undesirable consequence of forcing fishermen to discard their most valuable product. For all of these reasons, APA would prefer to see the pollock roe retention cap eliminated altogether in the directed pollock fishery. On the other hand, if elimination of the cap is not an option in the context of the current rulemaking, it is essential that the cap be raised to the maximum extent possible. The current 7 percent cap is unrealistically low. It unnecessarily forces fishermen to discard a very valuable product and thwarts efforts to extract more value (and more edible protein) out of the nation's limited fishery resource.

Response: See response to comment 1.

This final rule amends 50 CFR 679.20(g) by raising the maximum allowable roe retention percentage from 7 to 9 percent for pollock harvested in the BSAI. No changes were made from the proposed rule.

The Administrator, Alaska Region, NMFS, determined that this final rule is necessary for the conservation and management of the BSAI groundfish fishery and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule would not have a significant economic impact on a substantial number of small entities. No comments were received regarding the economic impact of this action. As a result, a regulatory flexibility analysis was not prepared.