AMS received a request to revise the U.S. Standards for Grades of Grapefruit (Texas and States other than Florida, California and Arizona), and the United States Standards for Grades of Oranges (Texas and States other than Florida, California and Arizona) from members of the Texas fruit and vegetable industry. Members of the Texas industry requested that these standards be revised to reflect current cultural and marketing practices and give industry greater flexibility in marketing and packaging using developing technologies. The major changes requested revised the standard pack sections of the grapefruit and orange standards, and the standard sizing section of the orange standard by redefining the requirements in each section.

AMS issued an interim final rule with request for comments on September 24, 2001 (66 FR 48785). A comment period of 60 days was provided for interested persons to respond. The comment period ended on November 23, 2001, and no comments were received.

The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. This final rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of the rule.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. 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. Accordingly, AMS has prepared this initial regulatory flexibility analysis. Interested parties are invited to submit information on the regulatory and informational impacts of this action on small entities.

There are approximately 315 producers of grapefruit and oranges in the production area and 16 handlers who would be affected by this amendment. Starting August 6, 2001, small agricultural producers have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts less than $750,000 and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000. Under this definition, the majority of grapefruit and orange producers and handlers using the grade standards in this regulation may be classified as small entities.

Using an average f.o.b. price of $8.00 per carton, 11 handlers (69 percent) could be considered small businesses. Of the approximately 315 producers within the production area, few have sufficient acreage to generate sales in excess of $750,000; therefore, a majority of producers of oranges and grapefruit who will be affected by this rule may be classified as small entities.

The main purpose of the changes was to bring the standards into conformity with current packaging and marketing practices and technologies. This rule specifically revises the standard pack sections of the grapefruit and orange standards and the standard size section of the orange standard by redefining the requirements. This rule will not impose substantial direct economic cost, recordkeeping, or personnel workload changes on small entities, and will not alter the market share or competitive position of these entities relative to large businesses. In addition, under the Agricultural Marketing Act of 1946, the use of these standards is voluntary.

The alternative option to this rule would be to leave the standards unchanged. This is not a viable alternative because amendments reflect current industry practices and are consistent with the regulations under the Oranges and Grapefruit Grown in Lower Rio Grande Valley in Texas Marketing Order (7 CFR Part 906).

This rule contains no new information or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seg.). The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

The regulations in 7 CFR part 340, “Introduction of Organisms and Products Altered or Produced Through Genetic Engineering Which are Plant Pests or Which There is Reason to Believe are Plant Pests” (referred to below as the regulations), govern the introduction (importation, interstate movement, or release into the environment) of any organism or product altered or produced through genetic engineering that is a plant pest or that there is reason to believe is a plant pest, or any product which contains such an organism that is unclassified and/or whose classification is unknown. The regulations refer to such organisms as “regulated articles.”

With certain limited exceptions, the introduction of any regulated article is prohibited unless that introduction is authorized by a permit or, for specific classes of regulated articles, the Administrator of the Animal and Plant Health Inspection Service (APHIS) has been notified of the introduction in accordance with § 340.3 of the regulations, which provides for the use, under certain circumstances, of an expedited permitting procedure called notification.

The notification option was added to the regulations in 1993 (58 FR 17044-53043, Docket No. 92-156-02) in order to expedite introductions for certain types of low risk plants with which APHIS had considerable regulatory experience. Under the notification procedure, the regulated article to be introduced must be a plant, and the types of genetic modifications to the plant must meet the eligibility criteria described in § 340.3(b). Development of those criteria was based upon the types of genetic modifications that APHIS had reviewed and evaluated many times over the preceding years of issuing permits.

At the time the regulations were amended to provide for the use of notification, the types of genetically engineered plants that had industrial uses were typically those in which nutritional components, such as oil content, were being engineered. Since APHIS had significant regulatory experience with the types of traits then being introduced into these plants, industrial plants were eligible for the notification option. In contrast, the notification regulations in § 340.3(b)(4)(iii) prohibited the use of notification for introductions of plants genetically engineered to encode compounds for pharmaceutical use, thus continuing to require a permit for such introductions, because of our lack of regulatory experience and scientific familiarity with these types of introduced traits.

Recently, a number of introductions of plants engineered to produce compounds intended for industrial use have been for traits different than what we were seeing in 1993. The more recent introductions have been for non-food, non-feed traits with which APHIS has little regulatory experience or scientific familiarity. For purposes of this rule, plants engineered to produce industrial compounds include those plants that meet the following three criteria: (1) The plants are engineered to produce compounds that are new to the plant; (2) the new compound has not been commonly used in food or feed; and (3) the new compound is being expressed for non-food, non-feed industrial uses. Industrial uses include, but are not limited to, detergent manufacturing, paper production, and mineral recovery.

Based on the expansion of the technology and the new non-food, non-feed uses of industrial plants being developed, we believe it is prudent and necessary to remove the notification option for all industrials pending the completion of our ongoing review of part 340.

With this interim rule, which will be in effect only until December 31, 2004, we amend the regulations in part 340 to remove the notification options for such plants. Therefore, for the remainder of the 2003-2004 growing seasons all introductions of plants genetically engineered to produce industrial compounds will be conducted pursuant to APHIS' rigorous permit system. We are continuing our review of this and other issues and of the regulations in part 340 generally and will announce our plans in a document published in the Federal Register within the next year.

Immediate action is necessary to strengthen our regulations with regard to the introductions of genetically engineered plants that encode compounds intended for industrial use because of our lack of regulatory experience and scientific familiarity with the kinds of traits in current and planned introductions. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the Federal Register.

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

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

This interim rule amends the regulations regarding genetically engineered organisms to require that introductions of plants genetically engineered to encode compounds for industrial use be conducted only under permit. Prior to this interim rule, such introductions could be accomplished under notification, an expedited permitting procedure.

Since 1993, only five companies and two public sector organizations have submitted notifications or applied for permits to introduce plants producing industrial compounds. From 1993 to 2001, 10 notifications of introductions of plant-made industrials (by 2 companies and 1 public sector entity) were received by APHIS. One notification was withdrawn; nine were acknowledged. In 2003, five permit applications for introductions of plant-made industrials have been received by APHIS (by three companies and one public sector entity).

It is difficult to predict how many organizations will apply for permits to introduce genetically engineered plants producing industrial compounds under the regulations in the future. Many unknowns will affect growth of the sector, including: Scientific/technological advances, consumer acceptance, market demand, production economics, the regulatory environment, intellectual property rights, and other critical factors.

Under the current notification procedure, when APHIS receives a notification, it is usually reviewed by a biotechnologist within 10 to 30 days, is forwarded to the State for further review, then returned to the applicant as either acknowledged or denied. Under the current permit procedures, it could take up to 3 months longer for each plant-made industrial compound introduction to be approved. When a permit application is received by APHIS, scientists review the application for deficiencies. If deficiencies are found, the applicant is required to respond to the noted deficiencies and the permit is either issued or denied within 120 days. The permit and proposed conditions are then sent to the State in which the introduction would occur. The State may concur or add conditions and concur.

Authorizations under notification require compliance with the performance standards described in § 340.3(c). For each notification, the responsible person must describe the procedures they will take to meet the performance standards. APHIS reviews those procedures and approves or denies the notification request. Authorizations under permit require compliance with standard permit conditions and supplemental conditions based on the risks involved in each case.

The requirement to introduce plants genetically engineered to produce industrial compounds under permit will result in an increased paperwork burden for applicants. Permits require the applicant to answer three more questions. The time per response is estimated to be 5 hours, so the total additional paperwork burden per permit could be somewhere in the neighborhood of 15 hours.

It is unlikely that the additional time for processing permits or the additional paperwork requirement would discourage applicants from applying for permits for the introduction of plants producing industrial compounds. Data on applications to introduce plants producing industrial compounds under the notification system (1993-2001) versus the permit system (2003) suggest that voluntary compliance with the permit system has not discouraged applicants thus far.

This rule is issued under Marketing Agreement and Order No. 993, both as amended (7 CFR part 993), regulating the handling of dried prunes grown in California, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California dried prune handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable dried prunes beginning on August 1, 2003, and continue until amended, suspended, or terminated. 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. Such 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 decreases the assessment rate established for the Committee for the 2003-04 and subsequent crop years from $2.60 per ton to $2.00 per ton of salable dried prunes.

The California dried prune marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of California dried prunes. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2002-03 and subsequent crop years, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from crop year to crop year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on June 26, 2003, and unanimously recommended 2003-04 expenditures of $341,000 and an assessment rate of $2.00 per ton of salable dried prunes. In comparison, last year's budgeted expenditures were $384,370. The recommended assessment rate is $0.60 lower than the rate currently in effect. The Committee was able to recommend a lower assessment rate this year because salable prune production this year is expected to be 170,500 tons, 15,500 tons higher than production last year. With a larger 2003-04 prune crop and lower budget, an assessment rate of $2.00 per ton will provide sufficient funds for Committee operations this year.

The following table compares major budget expenditures recommended by the Committee on June 26, 2003, and major budget expenditures in the 2002-03 budget.

The assessment rate recommended by the Committee was derived by dividing anticipated expenses by the estimated salable tons of California dried prunes. Production of dried prunes for the year is estimated at 170,500 salable tons, which should provide $341,000 in assessment income. Income derived from handler assessments would be adequate to cover budgeted expenses. Interest income also would be available if assessment income is reduced for some reason. The Committee is authorized to use excess assessment funds from the 2002-03 crop year (currently estimated at $78,947) for up to 5 months beyond the end of the crop year to meet 2003-04 crop year expenses. At the end of the 5 months, the Committee refunds or credits excess funds to handlers (§ 993.81(c)).

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate is effective for an indefinite period, the Committee will continue to meet prior to or during each crop year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2003-04 budget and those for subsequent crop years will be reviewed and, as appropriate, approved by USDA.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule 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 the 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 less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.

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

This rule decreases the assessment rate established for the Committee and collected from handlers for the 2003-04 and subsequent crop years from $2.60 per ton to $2.00 per ton of salable dried prunes. The Committee unanimously recommended 2003-04 expenditures of $341,000 and an assessment rate of $2.00 per ton of salable dried prunes. The recommended assessment rate is $0.60 lower than the current rate. The quantity of assessable dried prunes for the 2003-04 crop year is now estimated at 170,500 salable tons. Thus, the $2.00 rate should provide $341,000 in assessment income and be adequate to meet this year's expenses. Interest income also would be available to cover budgeted expenses if the 2003-04 expected assessment income falls short.

The following table compares major budget expenditures recommended by the Committee on June 26, 2003, and major budget expenditures in the 2002-03 budget.

Prior to arriving at its budget of $341,000, the Committee considered information from various sources, such as the Committee's Executive Subcommittee. An alternative to this action would be to continue with the $2.60 per ton assessment rate. However, an assessment rate of $2.60 per ton in combination with the estimated crop of 170,500 salable tons would generate monies in excess of that needed to fund all the budget items for 2003-04. The assessment rate of $2.00 per ton of salable dried prunes was determined by dividing the total recommended budget by the estimated salable dried prunes. The Committee is authorized to use excess assessment funds from the 2002-03 crop year (currently estimated at $78,947) for up to 5 months beyond the end of the crop year to fund 2003-04 crop year expenses. At the end of the 5 months, the Committee refunds or credits excess funds to handlers (§ 993.81(c)). Anticipated assessment income and interest income during 2003-04 would be adequate to cover authorized expenses.

The grower price for the 2003-04 season is expected to average about the same as the estimated 2002-03 average grower price of about $800 per salable ton of dried prunes. Based on an estimated 170,500 salable tons of dried prunes, assessment revenue during the 2003-04 crop year is expected to be less than 1 percent of the total expected grower revenue.

This action decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the Committee's meeting was widely publicized throughout the California dried prune industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 26, 2003, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

This action imposes no additional reporting or recordkeeping requirements on either small or large California dried prune handlers. 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.

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

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

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

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) The 2003-04 crop year began on August 1, 2003, and the marketing order requires that the rate of assessment for each crop year apply to all assessable dried prunes handled during such crop year; (2) this rule decreases the assessment rate for assessable prunes beginning with the 2003-04 crop year; (3) handlers are aware of this action which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years; and (4) this interim final rule provides a 60-day comment period, and all comments timely received will be considered prior to finalization of this rule.

Public Law 96-221, enacted in 1980, raised the loan interest rate ceiling for federal credit unions from one percent per month (12 percent per year) to 15 percent per year. 12 U.S.C. 1757(5)(A)(vi). The law also authorized the Board to set a higher limit, after consulting with Congress, the Department of Treasury and other federal financial agencies, for a period not to exceed 18 months, if the Board determined that: (1) money market interest rates have risen over the preceding six months; and (2) prevailing interest rate levels threaten the safety and soundness of individual credit unions as evidenced by adverse trends in growth, liquidity, capital, and earnings.

On December 3, 1980, the Board determined that the foregoing conditions had been met. Accordingly, the Board raised the loan ceiling to 21 percent. In the unstable environment of the first half of the 1980s, the Board lowered the loan rate ceiling from 21 percent to 18 percent, effective May 18, 1987. This action was taken in an environment of falling market interest rates from 1980 to early 1987. The ceiling has remained at 18 percent to the present. The Board believes retaining the 18 percent ceiling will permit credit unions to continue to meet their current lending programs and permit the necessary flexibility for credit unions to react to any adverse economic developments.

The Board would prefer not to set loan interest rate ceilings for federal credit unions. Credit unions are cooperatives and establish loan and share rates consistent with the needs of their members and prevailing market interest rates. The Board supports free lending markets and the ability of federal credit union boards of directors to establish loan rates that reflect current market conditions and the interests of their members.

Congress, however, has imposed loan rate ceilings since 1934, and, as stated previously, in 1980, Congress set the ceiling at 15 percent but authorized the Board to set a ceiling in excess of 15 percent, if conditions warrant. The following analysis justifies a ceiling above 15 percent, but at the same time does not support a ceiling above the current 18 percent. The Board is prepared to reconsider this action at any time should changes in economic conditions warrant.

Although money market interest rates have generally declined, the Board of Governors of the Federal Reserve System's (the FRB's) aggressive monetary policy and larger anticipated federal budget deficits suggest money market rates will rise in the months ahead. Recent statements by the FRB Chairman Alan Greenspan and other FRB officials suggest they anticipate stronger growth in the remaining months of 2003. This growth also would lead to higher money market interest rates.

These expectations are revealed in the implied forward yield curve for the United States Treasury securities. As of July 11, 2003, the forward yield curve anticipates that: the one-year Treasury yield will rise 51 basis points; the two-year Treasury will rise 63 basis points; and the five-year Treasury will rise 57 basis points by July 11, 2004. In addition, recently there has been an increase in current interest rates, as follows in Table 1:

Lowering the ceiling now, only to revise it upward in several months, would be disruptive to credit unions, as discussed below.

For at least 499 federal credit unions, representing 8.5 percent of reporting federal credit unions, the most common rate on unsecured loans was above 15 percent at year-end 2002. While the bulk of credit union lending is below 15 percent, small credit unions and credit unions that have implemented risk-based lending programs require interest rates above 15 percent to maintain liquidity, capital, earnings, and growth. Loans to members who have not yet established credit histories or have weak credit histories have more credit risk. Credit unions must charge rates to cover the potential of higher than usual losses for such loans.

There are undoubtedly more than 499 federal credit unions charging over 15 percent for unsecured loans to such members. Many credit unions have “credit builder” or “credit rebuilder” loans but report only the most common unsecured loan rates on NCUA Call Reports. Lowering the interest rate ceiling for federal credit unions would discourage these credit unions from making certain loans and many of the affected members would have no alternative but to turn to other lenders who charge higher rates.

Small credit unions would be particularly affected by lower loan rate ceilings since they tend to have higher levels of unsecured loans, typically with lower loan balances. Table 2 shows the number of federal credit unions in each asset group where the most common rate is more than 15 percent for unsecured loans.

Should the interest rate charged on loans be subject to a 15 percent ceiling, a number of federal credit unions, where the majority of members are low-income, will incur significant financial strain. Approximately 15 percent of federal credit unions with low-income designation report loan interest rates greater than 15 percent. In contrast, only 8.5 percent of all credit unions report rates above 15 percent. Approximately 17 percent of low-income credit unions with assets less than $10 million would be affected.

These credit unions offset the cost of generating low-balance loans by charging increased interest rates. These credit unions generally are not able to provide credit card loans and, instead, grant closed-ended and open-ended loans with the prerequisite underwriting documentation. Further, these smaller credit unions generally maintain a higher expense ratio, since many are involved with high-transaction accounts requiring higher personnel costs and related operational expenses, and lack economies of scale.

Further, among the 499 federal credit unions where the most common rate is more than 15 percent for unsecured loans, 83 have 20 percent or more of their assets in this category and all but three credit unions have assets of less than $10 million. For these credit unions, lowering the rates would threaten their liquidity, capital, earnings, and growth.

The Board has concluded that conditions exist to retain the federal credit union interest rate ceiling of 18 percent per year for the period September 8, 2003 through March 8, 2005. Loans and line of credit balances existing on or before March 8, 2005 may continue to bear interest at their contractual rate, not to exceed 18 percent. Finally, the Board is prepared to reconsider the 18 percent ceiling at any time during the extension period should changes in economic conditions warrant.

The Board has determined that notification and public comment on this rule are impractical and not in the public interest. 5 U.S.C. 553(b)(3)(B). Due to the need for a planning period before the September 9, 2003 expiration date of the current rule, and the threat to the safety and soundness of individual credit unions with insufficient flexibility to determine loan rates, final action on the loan rate ceiling is necessary.

The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a regulation may have on a substantial number of small credit unions (those under ten million dollars in assets). This final rule provides added flexibility to all federal credit unions regarding the permissible interest rate that may be used in connection with lending. The NCUA Board has determined and certifies that this rule will not have a significant economic impact on a substantial number of small credit unions.

NCUA has determined that this rule does not increase paperwork requirements under the Paperwork Reduction Act of 1995 and regulations of the Office of Management and Budget.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their regulatory actions on state and local interest. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. This rule applies only to federal credit unions and, thus, will not have substantial direct effects on the states, on the relationship between the national government and the states, nor materially affect state interests. The NCUA has determined that the rule does not constitute a policy that has any federalism implication for purposes of the executive order.

The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the Administrative Procedure Act. 5 U.S.C. 551. The Office of Management and Budget has determined that this is not a major rule.

NCUA has determined that this rule will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681 (1998).

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that applies to PWC engine models PW118, PW118A, PW118B, PW119B, PW119C, PW120, PW120A, PW121, PW121A, PW123, PW123B, PW123C, PW123D, PW123E, PW123AF, PW124B, PW125B, PW126, PW126A, PW127, PW127B, PW127E, PW127F, PW127G, PW127H, and PW127J turboprop engines was published in the Federal Register on July 3, 2002 (67 FR 44578). That action proposed to require replacing certain Stewart Warner P/N fuel heaters, installed on PWC engines, with redesigned fuel heaters.

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

Three commenters request that we call out the specific Stewart Warner fuel heater cross-referenced vendor P/N series associated with each PWC “Interchangeable Control” (IC) P/N. The commenters feel that the intent of PWC service bulletin (SB) PW100-72-21100, Revision 3, dated May 1, 2001, was to remove only those Stewart Warner fuel heaters P/N series 10718 from service and not all vendor P/Ns associated with the PWC IC P/N.

The FAA agrees. We agree that the use of the PWC IC P/N is confusing and does not achieve the intent of the SB to remove only the faulty Stewart Warner part. The details in the Proposed Requirements of this AD section are not repeated in the final rule; therefore no changes will be made to that section in the AD. However, Compliance paragraphs (a) and (b) in the AD are changed as a result of this comment.

One commenter requests that PWC SB PW100-72-21100, Revision 3, dated May 1, 2001, be included in the AD because it introduces P/N 3039798 fuel heaters. The commenter believes that the SB reference should be included as a means of compliance with the AD.

The FAA does not agree. We agree that the reference to the SB would be helpful; however, we clarify the Steward Warner P/N series fuel heaters in the AD. We feel that the SB would unnecessarily limit the acceptable replacement parts to only those listed in the SB.

One commenter requests that we rewrite the “applicable to” statement in the SUMMARY preamble from “* * * applicable to Pratt & Whitney Canada (PWC) models” to “* * * applicable to Pratt & Whitney (PWC) engine models” for clarity.

The FAA agrees. The “applicable to” statement is changed in the AD in the SUMMARY, the SUPPLEMENTARY INFORMATION, and the Applicability sections.

One commenter requests that we rewrite the “would require” statement in the SUMMARY preamble from “* * * certain part number (P/N) fuel heaters with redesigned fuel heaters” to “* * * certain Stewart Warner part number

The FAA agrees. The “would require” statement is changed in the SUMMARY, the SUPPLEMENTARY INFORMATION, and the Applicability sections in the AD.

One commenter requests that we rewrite the first sentence in the Discussion preamble from “* * * notified the FAA that an unsafe condition may exist on PWC models * * *” to “* * * notified the FAA that an unsafe condition may exist on PWC engine models * * *” for clarity.

The FAA agrees. However, the Discussion section details are not repeated in the final rule after an NPRM, and therefore, the AD remains unchanged as a result of this comment.

The same commenter requests that we add a new sentence at the end of the Discussion preamble for clarity. The sentence would read “Stewart Warner is the manufacturer of the fuel heaters involved in the reported field incidents and the only manufacturer of fuel heaters affected by this AD.”

The FAA agrees. However, the Discussion section details are not repeated in the final rule after an NPRM, and therefore, the AD remains unchanged as a result of this comment.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes described previously. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

This final rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.

For the reasons discussed above, I certify that this action: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend 14 CFR part 39 to include an AD for the specified ECF model helicopters was published in the Federal Register on April 22, 2003 (68 FR 19759). That action proposed to require replacing the neoprene seals with glass/silicone seals.

The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on the specified ECF Model helicopters delivered before July 1, 2002. The DGAC advises that neoprene seals bonded to the MGB mobile cowlings have low fire resistance, which does not meet the certification criteria. In the event of an uncontrolled fire in the engine compartment, the fire could spread to the MGB compartment.

ECF has issued Alert Service Bulletin No. 53.00.31, dated July 11, 2002 (ASB), which specifies replacing the MGB neoprene seals with glass/silicone seals that have increased fire-resistance. The DGAC classified this ASB as mandatory and issued AD 2002-537-094(A), dated October 30, 2002, to ensure the continued airworthiness of these helicopters in France.

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

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's AD system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. However, for clarity and consistency in this final rule, we have retained the language of the NPRM regarding that material.

The FAA estimates that this AD will affect 583 helicopters of U.S. registry, that it will take approximately 2 work hours per helicopter to install the seals, and that the average labor rate is $60 per work hour. Required parts will cost approximately $98. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $127,094.

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.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

The Civil Aviation Authority, (CAA), which is the airworthiness authority for the U.K., recently notified the FAA that an unsafe condition may exist on Rolls-Royce plc Trent 768-60, Trent 772-60, and Trent 772B-60 turbofan engines. The CAA advises that engines that have larger than anticipated high pressure compressor (HPC) tip clearances can lead to a corresponding loss of surge margin, resulting in low power surges.

We have reviewed Rolls-Royce plc Service Bulletin (SB) No. RB.211-71-D509, Revision 2, dated April 17, 2002. The SB describes procedures for performing low power surge margin testing. The CAA classified this SB as mandatory and issued CAA airworthiness directive, AD 005-09-2001, dated April 17, 2002, to ensure the continued airworthiness of these airplanes in the U.K.

Although none of these affected engine models are used on any airplanes that are registered in the United States, the possibility exists that the engine models could be used on airplanes that are registered in the United States in the future. Since an unsafe condition has been identified that is likely to exist or develop on other Rolls-Royce plc Trent 768-60, Trent 772-60, and Trent 772B-60 turbofan engines of the same type design, this AD is being issued to prevent a possible dual-engine in-flight surge, which could result in loss of control of the airplane. This AD requires initial and repetitive surge margin testing of engines. You must do these actions in accordance with the service bulletin described previously.

This engine model is manufactured in the U.K., and is type certificated for operation in the United States under section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. In keeping with this bilateral airworthiness agreement, the CAA has kept the FAA informed of the situation described above. We have examined the findings of the CAA, reviewed all available information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.

Since there are currently no domestic operators of these Rolls-Royce plc Trent 768-60, Trent 772-60, and Trent 772B-60 turbofan engines, notice and opportunity for prior public comment are unnecessary. Therefore, a situation exists that allows the immediate adoption of this regulation.

On July 10, 2002, we issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs our AD system. This regulation now includes material that relates to special flight permits, alternative methods of compliance, and altered products. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

Surge margin testing is considered an interim action. Rolls-Royce plc may introduce redesigned parts in the future to resolve the cause of the surge problem.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “AD Docket No. 2003-NE-28-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. If a person contacts us through a nonwritten communication, and that contact relates to a substantive part of this AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend the AD in light of those comments.

We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications with you. You may get more information about plain language at http://www.plainlanguage.gov.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD 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.

For the reasons discussed above, I certify that the regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2003-NE-28-AD” in your request.

Commission Rule 30.4 requires that persons that solicit or accept orders, and funds related thereto, from customers located in the U.S. for trading on futures exchanges located outside the U.S. must register as futures commission merchants. Commission Rule 30.10 permits persons to petition for exemption from any Part 30 rule. Under Rule 30.10, the Commission has issued numerous orders to foreign futures exchanges that petition, on behalf of their members, for relief from compliance with the Commission's Part 30 rules based on the members' substituted compliance with their home country regulatory framework. The Commission's Order under Rule 30.10 as published in the Federal Register incorrectly identified the order recipient, ASXF, as the ASX Futures Exchange Party Limited. ASXF has informed the Commission that the abbreviation “Pty” stands for “Proprietary” and not “Party.”

As published, the Order contains errors that may be misleading and need clarification.

Accordingly, the publication on July 1, 2003 of an Order, which was the subject of FR Doc. 03-16516, is correct as follows:

On page 39006, in the first column, in the Summary, line 5, and in the second column, in the Supplementary Information, second paragraph, line 3, the word “Party” is corrected to read “Proprietary” in both instances.

We are amending Rule 17a-5(c) 1 under the Securities Exchange Act of 1934 (“Exchange Act”). We proposed these amendments for comment in November 2002.2

A broker-dealer that carries customer accounts must generally send its full balance sheet to each of its customers twice a year under section 17(e)(1)(B) of the Exchange Act and Exchange Act Rule 17a-5(c). Rule 17a-5(c) requires the broker-dealer to send an audited balance sheet within 105 days of the date of the audited balance sheet and an unaudited balance sheet (dated six months after the date of the audited balance sheet) within 65 days of the date of the unaudited balance sheet. The full balance sheet includes footnote disclosures required by generally accepted accounting principles (“GAAP”) and a footnote disclosing the amount of net capital the broker-dealer held as of the balance sheet date and the minimum amount of net capital we required the broker-dealer to hold as of that date.3 There are currently approximately 400 broker-dealers subject to the rule that carry a total of approximately 103 million public customer accounts.4

When we adopted Rule 17a-5(c) on June 30, 1972,5 our goal was for broker-dealers to “directly” send a customer essential information so that a customer could “judge whether his broker or dealer is financially sound.”6 We adopted the Rule in response to the failures of many broker-dealers holding customer funds and securities in the period between 1968 and 1971. When first adopted, Rule 17a-5(c) required a broker-dealer to send its balance sheet to its customers five times a year. We later reduced this to two times a year.7

In a letter of February 26, 2001, the staff of the Commission's Division of Market Regulation (“Division”) provided no-action relief to allow a broker-dealer to send its balance sheet with its next mailing of quarterly customer account statements after the expiration of the time limits prescribed by Rule 17a-5(c), provided that the broker-dealer also sent certain updated net capital information.8 Further, the Commission has provided that, with the consent of the customer, a broker-dealer may send its balance sheet electronically.9

In July 1998, the Securities Industry Association (“SIA”) 10 requested additional relief on behalf of broker-dealers due to the cost of sending a full balance sheet to each customer.11 Full balance sheets for large broker-dealers may be six or more pages long, primarily due to the footnote disclosures required by GAAP.

In response to the request for relief, we issued a conditional exemptive order establishing a two-year pilot program ending December 31, 2001 that permitted a broker-dealer that elected to take advantage of the exemption to send only a “financial disclosure statement” to its customers containing summary information regarding its net capital when it otherwise would have had to send its customers its full balance sheet, as long as it also provided customers with a toll-free number to call for a free copy of its full balance sheet and made its full balance sheet available to customers on its Internet Web site.12 The exemptive order required that the financial disclosure statement include certain of the broker-dealer's net capital information as of the balance sheet date and information on how to obtain the broker-dealer's full balance sheet, at no cost to customers, by accessing the broker-dealer's Internet Web site or by calling a toll-free telephone number to promptly obtain the customer's choice of either a paper copy or an electronic copy. The no-action relief allowing a broker-dealer to send its financial information with its next mailing of quarterly customer account statements after the expiration of the Rule 17a-5(c) time limits as long as it also sent certain updated net capital information also applied to broker-dealers taking advantage of the exemption. These broker-dealers would therefore send customers net capital information as of the balance sheet date, as required by the exemptive order, and updated net capital information, as required by the no-action relief.

A broker-dealer taking advantage of the exemption and the no-action relief could send its financial disclosure statement with the updated net capital information to its customers and publish its balance sheet on its Web site at the time of its next mailing of quarterly customer account statements after the expiration of the Rule 17a-5(c) time limits. For example, a broker-dealer with a fiscal year end of November 30 is required by Rule 17a-5(c) to send an audited balance sheet to customers by March 15 (105 days after November 30). The broker-dealer would use a calendar year for its mailings of quarterly customer account statements. If the broker-dealer sends its first quarterly customer account statements at the beginning of April, the no-action relief allows it to send its audited balance sheet with certain updated net capital information to its customers with those first quarterly account statements. If the broker-dealer takes advantage of the exemption and the no-action relief, it could send its financial disclosure statement and updated net capital information to its customers with the first quarterly account statements at the beginning of April and publish its November 30 audited balance sheet on its Web site at the same time.

The pilot program was designed to reduce the cost to broker-dealers of complying with Rule 17a-5(c) while making it as easy as possible for customers to get the information they need to evaluate the financial soundness of a broker-dealer that may be holding their cash and securities. Participation in the pilot program was voluntary, and broker-dealers that participated in the pilot program were the firms that were likely to benefit most from taking advantage of the exemption.

In December 2001, we extended the pilot program for one year, until December 31, 2002.13 As of July 2002, 29 broker-dealers holding a total of about 40 million customer accounts participated in the pilot program. In November 2002, we extended the pilot program to June 30, 2003.14 As of June 2003, 3 additional broker-dealers holding a total of approximately 300,000 customer accounts were taking advantage of the exemption.

1. To encourage and facilitate involvement by Indian tribes in the areas over which the Commission has jurisdiction, the Commission is issuing this policy statement to articulate its commitment to promote a government-to-government relationship between itself and federally-recognized Indian tribes. The policy statement recognizes the sovereignty of tribal nations and the Commission's trust responsibility to Indian tribes. The policy statement also establishes a tribal liaison position. Finally, the policy statement establishes certain actions specific to the hydroelectric program. Part 2 of the Commission's regulations will be amended to implement the policy.

2. This policy statement evolved out of the recent rulemaking proceeding to develop an improved process to prepare and review license applications for non-federal hydropower projects.1 To ensure that tribal issues were addressed in the rulemaking, the Commission held special tribal forums in October and November 2002. As a result of several requests at those forums, the Chairman appointed a tribal liaison for the rulemaking proceeding.2

3. After the Notice of Proposed Regulation (NOPR) was issued in February 2003, Commission staff held regional public and tribal outreach meetings in March and April 2003 to discuss the NOPR.3 The Commission also held drafting sessions, including a special tribal session (Tribal Group), to attempt to reach consensus on a number of issues raised in the NOPR. The final rule is being issued concurrently with this policy statement.4

4. In written comments and meetings on the hydro rule,5 Indian tribes discussed the Commission's trust responsibility as it relates to treaty rights, legislation, and executive orders. Several tribes stated that as sovereign entities, they have government-to-government consultation rights that differ from those applicable to agencies and the general public, because they must be determined by mutual agreement between the Commission and individual tribes in a case-specific and issue-specific context.6 However, the tribes also stated that the Commission should specifically establish its tribal consultation process in its regulations.7

5. The Commission, in its NOPR, proposed to establish a tribal liaison for the hydroelectric licensing program. This proposal was supported by all of the commenting tribes and the Advisory Council on Historic Preservation.8 One commenter recommended that the liaison should be available not only for hydro matters, but also for other Commission programs.9 There was a consensus among the commenters that the liaison should not be a clerical position, but should be a staff person with substantive knowledge of the process that will be followed.10

6. In addition, commenters suggested various roles and responsibilities for a Tribal Liaison. These include facilitating government-to-government consultation by directing tribes to the right person or persons to deal with substantive or policy issues; ensuring that communications are maintained between tribal representatives and Commission staff throughout the proceeding;11 assisting tribal knowledge of and participation in the Commission's processes;12 educating Commission staff about tribes and the trust responsibility and treaty obligations,13 assisting tribes in learning how to access and effectively use the informational resources of the Commission's Web site;14 and informing tribes of activities at a project during licensing and throughout the term of a license that may affect tribal resources on or off the reservation.15

7. GLIFWC and Menominee stated that, because the process for government-to-government consultation needs to be developed in agreement with each tribe, the roles and responsibilities of the tribal liaison cannot be fully determined at the outset, but must evolve in response to the development of tribal-specific agreements.

8. The Tribal Group essentially endorsed all of these proposed roles and added several others, including: coordinating with tribal liaisons at other agencies; becoming educated about the rights of Indians; assisting tribes in making known their issues and views on compliance with treaties; ensuring that tribes are informed of studies and information with cultural-resource or treaty-rights implications; managing communications between the Commission and tribes when the ex parte regulations are applicable; facilitating communications between applicants and tribes; facilitating informal dispute resolution between applicants and tribes; helping to determine which tribes may be affected by likely future hydropower relicensing applications or original license applications; and informing potentially affected tribes about potential future relicensing applications.

9. While most commenters recommended that the tribal liaison should be non-decisional staff, Skokomish and NW Indians proposed that the tribal liaison should play an active role in the substantive resolution of licensing proceedings. NW Indians recommended that the tribal liaison or liaisons should be educated about individual tribes and their interests in specific proceedings and should act as their advocate within the Commission.

10. Various commenters indicated that there are too many tribes and too many tribe-specific, case-specific, and interrelated regional or watershed issues for one person to understand and act upon. Some suggested appointing multiple liaisons based on regions of the country, watersheds or river basins, or sub-regions within a state.16 Pacific Legacy suggested that the efforts of the Commission's liaison should be complemented by a liaison from each tribe for each project, to be funded by the applicant. The Tribal Group stated that the tribal liaison should be a regional position, with an overall coordinator position at the Commission's headquarters.

11. The Commission recognizes the unique relationship between the United States and Indian tribes as defined by treaties, statutes, and judicial decisions. Indian tribes have various sovereign authorities, including the power to make and enforce laws, administer justice, and manage and control their lands and resources. Through several Executive Orders and a Presidential Memorandum,17 departments and agencies of the Executive Branch have been urged to consult with Federally-recognized Indian tribes in a manner that recognizes the government-to-government relationship between these agencies and tribes. In essence, this means that consultation should involve direct contact between agencies and tribes and should recognize the status of the tribes as governmental sovereigns.

12. We are including in Part 2 of the Commission's regulations, “General Policy and Interpretations,” a statement of our policy on these matters.18 It applies to all of the Commission's program areas.19 For the hydroelectric licensing program, the policy applies to all licensing proceedings, regardless of which process is used. The policy statement was developed from our review of the written policies of other Federal agencies concerning the trust responsibility and government-to-government consultation.20

13. The policy statement recognizes the unique relationship between the Federal government and Indian tribes as defined by treaties, statutes, and judicial decisions. It acknowledges the Commission's trust responsibilities. It states that the Commission will endeavor to work with the tribes on a government-to-government basis and will seek to address the effects of proposed projects on tribal rights and resources through consultation pursuant to trust responsibilities, the statutes governing the Commission's authority,21 and in the Commission's environmental and decisional documents. It notes that the Commission functions as a neutral, quasi-judicial body and as such is bound by the Administrative Procedure Act and Commission rules regarding off-the-record communications.22 It states that the Commission will assure tribal issues and interests are considered in making decisions. The policy statement also establishes a tribal liaison position. For the hydroelectric program, it states that the Commission will notify tribes before or at the time the licensee files its notice of intent, and will consider comprehensive plans prepared by tribes or intertribal organizations.

14. The tribal liaison will seek to educate Commission staff about tribal governments and cultures and to educate tribes about the Commission's various statutory functions and programs. The tribal liaison will work with the tribes during Commission proceedings, to ensure that the tribes' views are appropriately considered at every step of the process. The tribal liaison will act as a guide for the tribes to Commission processes, and will strive to ensure that consultation requirements are met.

15. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have significant adverse effect on the human environment.23 The Commission has categorically excluded certain actions from this requirement because they would have no significant effect on the human environment.24 Included among the exclusions are rules that are clarifying, corrective, or procedural, or that do not substantively change the effect of the regulations being amended.25 This policy statement is procedural in nature and therefore falls under this exception. Consequently, no environmental analysis is necessary.

16. The Regulatory Flexibility Act of 1980 (RFA)26 generally requires a description and analysis of final rules that will have a significant economic impact on a substantial number of small entities.27 Pursuant to section 605(b) of the RFA, the Commission hereby certifies that this policy statement will not have a significant economic impact on a substantial number of small entities.

17. The OMB requirements require that OMB approve certain information collection requirements imposed by agency rules.28 However, this policy statement contains no information reporting requirements, and therefore is not subject to OMB approval.

18. In addition to publishing the full text of this document in the Federal Register, the Commission also provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during regular business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

19. From the Commission's Home Page on the Internet, this information is available in the Federal Energy Regulatory Records Information System (FERRIS). The full text of this document is available on FERRIS in PDF and WordPerfect format for viewing, printing, and/or downloading. To access this document in FERRIS, type the docket number of this docket, excluding the last three digits, in the docket number field. User assistance is available for FERRIS and the Commission's Web site during regular business hours. For assistance, contact FERC Online Support at FERCOnlineSupport@ferc.gov or toll-free at (866) 208-3676, or for TTY, contact (202) 502-8659.

20. These regulations are effective September 5, 2003. The provisions of 5 U.S.C. 801 regarding Congressional review of final rules does not apply to this final rule, because the rule concerns agency procedure and practice and will not substantially affect the rights of non-agency parties.

Before Commissioners: Pat Wood, III, Chairman; William L. Massey, and Nora Mead Brownell. I. History

1. On February 21, 2003, the Federal Energy Regulatory Commission (Commission) issued a final rule in Order No. 630 establishing procedures for the public to use to submit and request access to critical energy infrastructure information (CEII) that would otherwise not be available to them under the Freedom of Information Act, 5 U.S.C. 552 (FOIA). Order No. 630 is the most recent step the Commission has taken to protect information regarding critical energy infrastructure since the September 11, 2001 terrorist attacks on the United States. On October 11, 2001, the Commission took the initial step of issuing a policy statement in Docket No. PL02-1-000 removing from easy public access certain previously public documents.1 On January 16, 2002, the Commission issued a notice of inquiry in Docket No. RM02-4-000 to determine what regulatory changes, if any, should be made to restrict unfettered general public access to CEII.2 Later that year, the Commission issued a notice of proposed rulemaking and statement of revised policy in the same docket, proposing procedures for submitting and requesting CEII and the creation of a new position of CEII Coordinator.3 The Commission issued the final rule in Order No. 630 approximately five months later.4

2. On March 21, 2003, the Transmission Access Policy Study Group (TAPS) filed a timely request for rehearing of Order No. 630. The Commission granted rehearing for the limited purpose of further reconsideration on April 21, 2003. TAPS filed a motion on May 27, 2003 seeking to supplement its prior request for rehearing, and asking that the Commission consider comments filed by TAPS and the American Public Power Association (APPA) regarding the notice of proposed rulemaking in Docket No. RM03-6-000, Amendments to Conform Regulations with Order No. 630, IV FERC Stats. & Regs. ¶ 32,569 (2003).5

3. As discussed in more detail below, the Commission denies TAPS's request for rehearing. Nevertheless, the Commission is revising Order No. 630 to reflect its experience in implementing the final rule. Specifically, this order revises Order No. 630 to change the CEII filing instructions, the CEII request procedures, and the instructions for requesting rehearing of the CEII Coordinator's decision.

4. In its request for rehearing, TAPS claims that the CEII rule creates “a conflict between deadlines placed on intervenors in Commission proceedings * * * and the time frames for the release of CEII.” TAPS Request at p. 1. TAPS cites as an example rate filings under section 205 of the Federal Power Act. According to TAPS, the Commission's CEII request process would likely take at least 20 business days to complete, thus preventing an intervenor from gaining access to relevant CEII until after the 21-calendar day limit for filing interventions and protests had passed. The Commission disagrees. Initially, a potential intervenor would typically not require access to CEII in order to file a notice of intervention or motion to intervene. As for a protest, as discussed in Order No. 630, it is unlikely that there will be CEII contained in a section 205 filing, which typically must be acted on within 60 days, or any other filing with statutory deadlines, and in the unusual case where there is such information, it is likely that there will be enough publicly available information to enable an intervenor to respond to the filing.6 Moreover, in the unlikely event that there is need for an intervenor to obtain access to CEII, the intervenor may request a reasonable extension of time to file a protest. Separately, as most intervenors in section 205 rate cases, the typical cases where statutory deadlines are relevant, have ongoing relationships with the filing utility, they can always contact the filing utility directly.

5. Moreover, as noted in Order No. 630, the issue is not new. Prior to enactment of the CEII rule, a company could make a filing with a request for confidential treatment under 18 CFR 388.112. To date the Commission is unaware of this right preventing someone from filing a timely intervention or protest, or participating meaningfully in a Commission rate proceeding. There is no reason to think that the issue is any more acute under the CEII rule.

6. TAPS notes that the Commission has found portions of Form No. 715 data to be CEII, and TAPS claims that “geographic markets cannot be properly defined without assessing transmission capability and constraints.” 7 While knowledge of transmission capacity and constraints may better enable intervenors to participate effectively in merger and market rate proceedings, Order No. 630 should not prevent intervenors from getting such information. Form No. 715 is an annual filing that may be obtained through the CEII request procedures by those with a need for the information. In addition, nothing in Order No. 630 affects the requirement in Part 37 of the Commission's regulations regarding Open Access Same-Time Information Systems (OASIS). Under 18 CFR 37.6, transmission providers are required to post transmission capability, transmission service products and prices, ancillary service offerings and prices, specific transmission and ancillary services requests and responses, transmission service schedules information, and other transmission-related communications. Neither this rule, nor the changes proposed in the NOPR in Docket No. RM03-6-000, affects the obligations of transmission providers to continue to provide this information. Accordingly, interested parties should have adequate information on hand to respond to filings made pursuant to sections 203, 205 and 206 of the Federal Power Act, 16 U.S.C. 824b, 824d, and 824e.

7. Finally, TAPS's supplemental filing indicates a concern that the Commission's CEII access procedures have somehow supplanted other mechanisms for obtaining CEII. For example, TAPS notes that “[r]egional reliability councils, RTOs and OASIS sites have procedures in place today that provide market participants with secure access to CEII,” and goes on to state that “[t]he Commission should not interfere with these existing mechanisms—and indeed should build upon them to ensure secure access to CEII.” 8 The Commission does not intend to interfere with these mechanisms. Order No. 630 deals exclusively with the way in which information is submitted to and disseminated by the Commission; it is not intended to limit the ability of companies, reliability councils, RTOs and others to share CEII with those with a need for it. In fact, the Commission recognizes that these entities are often in the best position to judge the legitimacy of such requesters, and the Commission encourages these entities to provide information to legitimate requesters, reducing the number of CEII requests that the Commission itself must process.

8. The Commission is making several changes to the instructions in 18 CFR 388.112 regarding submission of CEII. The first change is to add an instruction in § 388.112(a)(3) regarding the filing of non-Internet public (NIP) information.9 In Order No. 630, the NIP instructions appeared only in the preamble text. The Commission has decided for the sake of clarity to integrate NIP into the instructions in § 388.112 of its regulations. It is easier for filers to be able to rely on instructions in the regulations themselves without having to look at the preamble language in order to get complete instructions on preparing a filing. Accordingly, in order to include NIP in 18 CFR 388.112, the title of the section is changed from “Requests for privileged treatment of documents submitted to the Commission” to “Requests for special treatment of documents submitted to the Commission.” The instructions in § 388.112(b) of the Commission's regulations are being revised to specify that NIP information should be segregated from other public information, and to direct filers to file the same number of NIP volumes that they file of other public volumes. This is because NIP is circulated to staff in the same manner that public information is circulated. The only difference at the Commission between NIP information and public information is that NIP information is not available to the public through the on-line Federal Energy Regulatory Records Information System (FERRIS). NIP information is available, however, in the Commission's Public Reference Room.

9. The instructions in Order No. 630 regarding submission of CEII were incorporated largely into the Commission's then-existing regulation at 18 CFR 388.112 regarding requests for privileged treatment of documents. That existing regulation specified that an original and fourteen copies of public documents should be filed. This requirement was based on the Commission's generic filing regulation found at 18 CFR 385.2004, which states that “[a]ny person filing under this chapter must provide an original of the filing and fourteen exact copies, unless otherwise required by statute, rule or order.” Unfortunately, however, unlike 18 CFR 385.2004, the regulation at 18 CFR 388.112 did not allow for situations where fewer or more than fourteen copies are required.10 The language in § 388.112 of the Commission's regulations therefore is being revised to require for public volumes, an original plus the requisite number of copies for that particular type of filing.

10. Order No. 630 specified that one version of CEII material be filed, mirroring the existing requirement for only one version of privileged information. Generally, in order to ensure tight control over privileged information such as trade secret information, the Commission prefers to receive only one version of such information. However, staff has found that having only one version of CEII material makes it difficult to process filings. The Commission has therefore determined that having two additional copies of CEII material will facilitate more efficient processing of filings containing CEII. Consequently, the filing provisions at §§ 388.112(b)(2)(A)(ii) and (B)(ii) of the Commission's regulations are being revised to require an original and two copies of material containing CEII. The rule regarding the number of privileged filings will remain the same, requiring that one be filed.

11. The Commission is also revising the filing instructions in 18 CFR 388.112(b) to remove language directing filers to segregate CEII and privileged material wherever practical into separate documents or appendices, and instead directing filers to file CEII, privileged, and NIP in separate “volumes.” Since Order No. 630 became effective, the Commission has received numerous filings that have been difficult to process because of confusion regarding which portions are public, which are NIP, which are CEII, and which are privileged. The staff in the Office of the Secretary and the staff in the Office of the Executive Director who process filings and are responsible for placing documents into FERRIS are not the same staff that review the documents for substantive content. The processing staff does not have the time to read each filing page-by-page to see where materials may be marked for special treatment in the middle of a document. By using the term “volume,” the Commission is specifying that materials for which special treatment is sought be physically separate from other portions of the filing, making for easier processing, with less of a chance for NIP, CEII, or privileged information to inadvertently be logged in as standard public information. The Commission is also deleting parallel filing instructions that allowed filers to redact material from a filing instead of using the separate volume approach. The redaction approach results in numerous versions of the same material being filed, increasing filer costs, staff processing time, and the possibility of confusion. For this reason, the regulation will no longer include a redaction option in 18 CFR 388.112.

12. In addition, the Commission is revising the filing provisions to reflect that filings should be marked and packaged according to instructions provided by the Secretary's Office. In Order No. 630, the Commission provided detailed instructions in 18 CFR 388.112(b) regarding the marking, packaging, and filing of CEII. The Commission has now determined to provide general instructions in the regulatory text with more detailed information provided in instructions from the Secretary's Office. This allows the Commission more flexibility and will permit the details to be modified as the need arises. Key elements, such as the numbers of copies required, are still covered by the regulation itself.

13. The Commission is revising the language in paragraphs (c), (d), and (e) of § 388.112 of its regulations to specifically reference CEII requests. In Order No. 630, the language in these provisions refers to both traditional privileged information and CEII as privileged information. To eliminate the potential for confusion, the Commission believes it is necessary to clearly distinguish between CEII and materials that companies have traditionally submitted with requests for privileged treatment, such as confidential information or Privacy Act information. Accordingly, the Commission is amending § 388.112(c) of its regulations to clarify that it applies to claims for CEII status as well as privileged claims. Similarly, the Commission is amending 18 CFR 388.112(d) to include language to clarify that it is relevant to CEII requests. The Commission also is amending § 388.112(e) of its regulations to clarify that the Commission will notify submitters prior to releasing information for which the submitter has requested CEII treatment. In addition, language is added in both 388.112(d) and (e) to clarify that the five days referred to in each are calendar days.

14. After several months of experience processing CEII requests, the Commission is changing 18 CFR 388.113 to make certain minor changes to its CEII request procedures. The Commission is amending § 388.113(d)(3)(i) of its regulations to require that CEII requesters sign their CEII. Although 18 CFR 385.2005(a) already requires that any filing made with the Commission be signed, the Commission is revising § 388.113(d)(3)(i) to specify that CEII requests should be signed. As with § 385.2005, the purpose of the signature is to verify that the signer knows the contents of the filing and that “the contents are true as stated to the best knowledge and belief of the signer.”11 In addition, the Commission is amending that same section to require requesters to provide their birth name and any other names that they may have had or been known by in addition to their current name. This will help the Commission verify the identity of the requester where the birth name or other names do not match the requester's current name. Finally, 18 CFR 388.113(d)(3)(i) is being revised to read that requests “must” contain specific information listed in the regulation.12 This will make it more clear that the information is mandatory.

15. In response to requests from Federal agencies, the Commission is also revising the CEII request regulations at § 388.113(d)(3)(i) to require less personal information from a Federal agency requester who requests information in an official capacity. Employees at Federal agencies are subject to background checks as a condition of their Federal employment. Consequently, Federal employees require less screening prior to gaining access to CEII. The Commission, therefore, is adding a sentence to 18 CFR 388.113(d)(3)(i) to clarify that “Federal agency employees making requests on behalf of Federal agencies may omit their social security number, and date and place of birth.”

16. The Commission also is adding language at the end of § 388.112(d)(ii) of its regulations to direct that “[C]opies of requests for rehearing of the CEII Coordinator's decision should be served on the CEII Coordinator and the Associate General Counsel for General Law.” This will facilitate the Commission's processing of rehearing requests by ensuring that relevant staff is notified of the request as soon as possible.

17. Order No. 630 listed information that the Commission considers to be CEII because it provides more than simply location information. In error, that listing included “environmental resource reports for LNG facilities.”13 It should have read “environmental resource report 13 for LNG facilities,” which contains engineering and design information for liquified natural gas facilities.14

18. This rule, as well as the final rule in RM03-6, represents the Commission's best efforts to achieve a delicate balance between the due process rights of interested persons to participate fully in its proceedings and its responsibility to protect public safety by ensuring that access to CEII does not facilitate acts of terrorism. The Commission believes that it has struck an appropriate balance; however, it intends to monitor the experiences under these two rules to ensure that it has done so. Therefore, in six months the Commission will solicit public comment to determine whether submitters or requesters of CEII are experiencing any problems with the new processes.

19. The Office of Management and Budget's (OMB's) regulations require that OMB approve certain information collection requirements imposed by agency rule.15 OMB approved the final rule issued in Order No. 630 on May 2, 2003. Two changes have been made to the information collection requirements in this order on rehearing. The number of copies of CEII have been changed from one original to an original plus two copies in order to facilitate staff review of filings. This requirement does not exceed OMB's restriction against requiring more than an original plus two copies and does not change the burden estimates.16 In addition, the revised rule requires requesters to identify any other names by which they have been known, and to give the dates they used such names. This requirement is intended to verify the identity of the requester. OMB regulations provide an exemption where a person is required to provide only facts that are necessary for identification.17 Again, this change does not change the burden estimates. Although the Commission believes these changes are not substantive or material changes requiring OMB approval, a courtesy copy is being submitted to OMB.

20. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.18 Included in the exclusions are rules that are clarifying, corrective, or procedural or that do not substantively change the effect of the regulations being amended. This rule is clarifying and procedural in nature and therefore falls under the exceptions; consequently, no environmental consideration is necessary.

21. The Regulatory Flexibility Act of 1980 (RFA)19 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The Commission is not required to make such analyses if a rule would not have such an effect. The Commission certifies that this rule does not have such an impact on small entities.

22. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

23. From FERC's Home Page on the Internet, this information is available in the Elibrary or the Federal Energy Regulatory Records Information System (FERRIS). The full text of this document is available on FERRIS in PDF and WordPerfect format for viewing, printing, and/or downloading. To access this document in FERRIS, type the docket number excluding the last three digits of this document in the docket number field.

24. User assistance is available for FERRIS and the FERC's Web site during normal business hours via e-mail at FERCOnlineSupport@ferc.gov or toll-free at (866) 208-3676, or TTY, contact (202) 502-8659, or through the Public Reference Room at (202) 502-8371 Press 0.

25. The revisions implemented in this order on rehearing of the rule are effective September 5, 2003.

26. The provisions of 5 U.S.C. 801 regarding Congressional review of final rules do not apply to this final rule, because the rule concerns agency procedure and practice and will not substantially affect the rights of non-agency parties.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Montana program on April 1, 1980. You can find background information on the Montana program, including the Secretary's findings, the disposition of comments, and conditions of approval in the April 1, 1980, Federal Register (45 FR 21560). You can also find later actions concerning Montana's program and program amendments at 30 CFR 926.15, 926.16, and 926.30.

By letter dated May 7, 2002, Montana sent us an amendment (SATS No. MT-023-FOR, Administrative Record No. MT-20-01) to its program under SMCRA (30 U.S.C. 1201 et seq.). Montana sent the amendment: (1) In response to letters dated March 29, 1990; June 5, 1996; January 13, 1997; and June 26, 1997 (Administrative Record Nos. MT-60-07, MT-60-09, MT-60-10, and MT-60-11) that we sent to Montana in accordance with 30 CFR 732.17(c), (2) in response to the required program amendments at 30 CFR 926.16(e)(9), and (3) to include the changes made at its own initiative.

We announced receipt of the proposed amendment in the July 15, 2002, Federal Register (67 FR 46434). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (Administrative Record No. MT-20-06). We did not hold a public hearing or meeting because one was not requested. The public comment period ended on August 14, 2002. We received comments from one private citizen.

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

Montana proposed minor wording, editorial, punctuation, grammatical, and recodification changes to the following previously-approved rules and statutes.

We note that as a result of the reorganization of the natural resources function of the Montana State Government in 1995, which transferred the authority to regulate coal mining under SMCRA from the Department of State Lands to the Department of Environmental Quality (Department), all of the Montana program rules were recodified from Title 26 Chapter 4 to Title 17 Chapter 24 of the Administrative Rules of Montana.

Because these changes are minor, we find that they will not make Montana's rules or statutes less effective than the corresponding Federal regulations or less stringent than SMCRA. We approve the proposed revisions.

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

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

Montana proposed to revise its definition of “approximate original contour” to: (1) Eliminate the phrase which includes terracing or access roads in the reclaimed area; (2) change “refuse” to “waste;” (3) add the requirement that depressions, except as provided at ARM 17.25.503(1), are eliminated; and (4) eliminate the statement which reads “Permanent water impoundments may be permitted where the department determines that they are in compliance with ARM 17.24.504.”

The Federal statute at SMCRA Sec. 701(2) and the Federal regulation at 30 CFR 701.5 include the phrase concerning terracing or access roads in the reclaimed area. The Federal regulations use the term “coal refuse piles.” The Federal statute and regulations do not specify the elimination of depressions. The Federal regulatory definition of “approximate original contour” (AOC) contains the phrase concerning the option of permitting of permanent water impoundments; SMCRA does not.

Montana states that it does not need to specify terracing or access roads as part of the reclaimed area, as elsewhere in the State program (ARM 17.24.501 and 17.24.501A), all affected areas must be graded to AOC. The reclamation and grading of roads to be returned to AOC is specifically addressed at ARM 17.24.605 in the Montana program. Both the Federal statute and regulations address grading to achieve AOC for the reclamation of disturbed areas and roads (30 CFR 816.102/817.102; 816.150(b), (c), & (f)/817.150(b), (c), & (f); and Sec. 515(b)(3) of SMCRA), in addition to the definition of AOC. The preamble does not address the need or reason to repeat this reclamation guidance in both sections. Therefore, because Montana contains the requirement to regrade and reclaim all disturbed areas to AOC elsewhere in the State program other than the definition of AOC, OSM finds the Montana proposal to be no less effective than the Federal regulations and no less stringent than SMCRA.

Concerning use of the term “waste” instead of “refuse,” Montana stated that “waste” is defined in the state program whereas “refuse” is not. Some States prefer to use the term “waste” instead of “refuse,” with New Mexico's program as an example. Because Montana has chosen to use and define the term “waste” instead of “refuse,” OSM approves Montana's revision as being no less effective than the Federal regulations.

Montana proposed to add the statement that depressions, except as provided in ARM 17.24.503(1), be eliminated. This requirement is not contained in the Federal definition of AOC but rather at 30 CFR 816.102(h). Montana also contains this requirement in its program at ARM 17.24.503. OSM finds no conflict with also including this requirement in the definition of AOC. OSM finds the Montana proposal to be no less effective than the Federal regulations.

Montana proposed to eliminate the phrase concerning the option of permitting permanent water impoundments if they are in compliance with ARM 17.24.504. This phrase is not an integral part of the definition of AOC and is only contained in the Federal regulatory definition of AOC, not in SMCRA. The preamble does not require this phrase for the definition of AOC. Both 30 CFR 816.49(b)/817.49(b) and ARM 17.24.504 allow permanent impoundments in reclaimed areas providing certain conditions are met. Therefore, OSM finds this revision to be no less effective than the Federal regulations.

Montana did not propose any revisions to these definitions. However, in the narrative included in the submittal, Montana addressed a required program amendment at 30 CFR 926.16(e)(9) that was imposed in a final rule dated August 19, 1992 (57 FR 37436). The amendment required Montana to delete the modifier “non-coal” from the organic materials prohibited in these fills. Under the Federal definitions, these fills may consist of “any material, other than organic material.” The Montana definitions allow “any material other than non-coal organic material.”

In its narrative, Montana stated that under its definitions, the same materials are allowed, and excluded, as under the Federal definitions. It references earlier arguments in a letter to OSM dated February 19, 1993. The differences in the Montana and OSM positions on this issue stem from whether the terms “coal” and “organic” are used in an engineering sense or in a general natural-science sense. In an engineering sense, OSM considers coal to be rock, not an organic material, and “organic” to indicate biological materials that have undergone little decomposition (and hence are, from an engineering point of view, unstable). Montana uses “organic” in a general natural-science sense, to indicate that the material consists of molecules with a carbon framework. Montana argues that, as understood in the natural-science sense, its definitions exclude all organic materials other than those derived from coal, including all of the engineering-unstable materials excluded by the Federal regulations. Further, Montana's definitions allow only coal-derived materials, which are also allowed under the Federal regulations.

Based on this discussion, we agree with Montana that its definitions are not inconsistent with the Federal definitions, and that the Montana program definitions need not be revised. The required program amendment will be further addressed in a finding below regarding another part of the required amendment (applying to permit application requirements), at ARM 17.24.305.

Montana has proposed various revisions to its ownership and control (O&C) regulations. Montana previously proposed various programmatic revisions to ownership and control in MT-003-FOR. However, in the final rule notice on MT-003-FOR dated February 12, 2002 (67 FR 6395), OSM deferred on Montana's ownership and control regulations. This was because OSM revised the Federal regulations in response to recent legal challenges contesting the validity of OSM's regulations. OSM published a final rule Federal Register notice dated December 19, 2000 (65 FR 79663), on revised ownership and control regulations. A new 30 CFR part 732 letter concerning ownership and control will be sent to the States in the future to advise them of changes they need to make to their program in order to be no less effective than the newly revised Federal regulations. Until such time as OSM issues revised O&C guidance concerning necessary programmatic revisions to the States, OSM defers on the proposed Montana revisions concerning ownership and control.

Montana proposed to revise this rule (1) To delete the term “professional geologist,” (2) to change “registered professional engineer” to “licensed professional engineer,” and (3) to allow licensed professional land surveyors to prepare and certify materials except for maps, plans, and cross-sections for sedimentation ponds and spoil disposal facilities.

In the August 19, 1992, Federal Register notice (57 FR 37436), OSM placed a required program amendment (30 CFR 926.16(e)(9)) on Montana to submit proposed revisions to remove parts of the State program which the OSM Director could not approve, but which had been promulgated by Montana. Those parts of the State program that OSM requested be removed included the phrases “registered land surveyor,” and “or a registered land surveyor” at ARM 26.4.305(2)(b) and 26.4.321(3) (now ARM 17.24.305(2)(b) and 17.24.321(3)). ARM 17.24.321(3) was revised as required in program amendment MT-003-FOR which was approved in a final rule published on February 12, 2002 (67 FR 6395). ARM 17.24.305(2)(b) and ARM 17.24.924(15) are addressed in this submittal, MT-023-FOR.

In its May 7, 2002, submittal, Montana proposed that maps, plans, and cross-sections required under certain sections of ARM 17.24.305 must be prepared by, or under the direction of, and certified by a qualified licensed professional engineer with assistance from experts in related fields, except that: (1) Maps and cross-sections required under certain sections of ARM 17.24.305 may be prepared by, or under the direction of, and certified by a qualified licensed professional land surveyor with assistance from experts in related fields, and (2) maps, plans, and cross-sections for sedimentation ponds and spoil disposal facilities may be prepared only by a qualified licensed, professional engineer. Montana states that MCA 37-67-101(6) provides that licensed professional land surveyors can prepare and certify mine maps and cross-sections but not plans. Montana has deleted the undefined term of “professional geologist.” Montana has also replaced “registered” with “licensed” which reflects current State practices.

OSM placed the required program amendment on the Montana program as OSM did not interpret the MCA as authorizing registration procedures for registered land surveyors to perform such tasks as preparing and certifying plans and cross-sections for: Mineral storage, cleaning and loading areas; storage areas for soil, spoil, coal waste, and garbage or other debris; water diversions and facilities for collection, conveyance, treatment, storage, and discharge of water; and explosives storage and handling facilities. In this submission, Montana maintains that the MCA does allow licensed professional land surveyors to prepare and certify mine maps and cross-sections, but not plans. Therefore, Montana has revised the language to reflect these duties.

We agree with Montana that many of the materials required by this rule may be prepared by surveyors, particularly descriptive maps and cross-sections of existing features, or cross-sections that interpolate between sections of plans prepared by an engineer. But Montana also notes that surveyors may not design and plan many structures. In addition to the provision here at (2)(b)(ii) specifying certain materials that must be prepared by engineers, we reviewed the performance standards in Chapters 5 through 10 (i.e., ARM 17.24.501-17.24.1018). We found that in those Chapters, where the exact plans, cross-sections, and maps are specified, preparation and certification by an engineer (as opposed to a surveyor) is specified where required. Therefore, we agree with Montana that qualified licensed professional land surveyors may prepare and certify some of these materials, and those they may not are adequately specified by subsection (2)(b)(ii) of this rule and the specific performance standards of Chapters 5-10 of the rules. Therefore, we approve Montana's proposal.

As noted above, we earlier required Montana to remove this language in a required program amendment codified at 30 CFR 926.16(e)(9). Based on this approval, that requirement is no longer applicable. In addition, 30 CFR 926.16(e)(9) required Montana to revise: (1) The definitions of “head-of-hollow fill” and “valley fill” at ARM 17.24.301; (2) 17.24.321(3) regarding surveyors; and (3) delete an alternate underdrain variance at 17.24.924(14) (now (15)). We note that in this final rule, we have removed the requirement to revise the fill definitions (see Finding C.2. above). Further, the Montana program at 17.24.321 and 17.24.924 was revised as required in a final rule published on February 12, 2002 (67 FR 6395). Therefore, all of the changes required by 30 CFR 926.16(e)(9) have been completed or removed. Accordingly, we are removing the required program amendment.

In the May 7, 2002, submittal, Montana proposed revisions to combine the requirements for railroad systems (now labeled “railroad loops”) with the requirements for roads at ARM 17.24.301, 17.24.321, 17.24.601, 17.24.603, 17.24.605, and 17.24.607. Also, Montana has prescribed that roads performance standards are applicable to haul roads and access roads. In this section concerning transportation facilities plans, Montana has made many editorial revisions to reflect these programmatic changes. In addition, Montana has specified that plans for low-water crossings of perennial and intermittent stream channels must be submitted and demonstrate that protection will be maximized in accordance with the performance standards of the ARM 17.25.600 series. Montana also specifies that ramp roads will be shown on the maps.

The Montana revisions have Federal counterparts at 30 CFR 780.37 (784.24 for underground mines) which require that such information be included in roads systems plans and drawings. The Federal regulations do not specify that railroad systems be included on road systems maps, so Montana is adding an extra requirement. The Federal requirements contain specifications for low-water crossings and intermittent stream channels at 30 CFR 780.37(a) relating to the hydrology performance standards. The Federal regulations at 30 CFR 780.37/784.24 contain the requirement that primary roads be certified by a qualified registered professional engineer with experience in the design and construction of roads. Secondary roads (access roads) need only be shown on road systems maps, and not certified. The Federal definition of “road” at 30 CFR 701.5 excludes “ramp roads.”

Therefore, the Director finds that the Montana revisions are no less effective than the Federal counterpart and approves them.

Montana proposed to delete the requirement that, when an application concerns Federal lands, the Department issue its findings on the same day that the Federal regulatory authority issues its findings. Montana explained that they consider the language proposed for deletion to be obsolete, because the Federal regulatory authority (OSM) no longer prepares written findings on Federal lands, that being the sole responsibility of the State.

Under the Federal Land Program at 30 CFR part 740, and the State-Federal Cooperative Agreement at 30 CFR 926.30, Montana has sole responsibility for findings related to permit approval or denial under SMCRA and OSM retains some responsibilities related to other Federal laws. Further, since the language proposed for deletion did not include the defined term “Federal coal regulatory authority,” but rather the undefined term “federal regulatory authority,” the language proposed for deletion might possibly refer to other Federal agencies.

Nevertheless, we find that the deleted language was directory, not mandatory. Further, there is no corresponding Federal requirement. This deletion does not affect the authority or jurisdiction of any Federal agency. In particular, we note that under the State-Federal Cooperative Agreement at 30 CFR 926.30 VI.C.3., the Department may approve a SMCRA mining permit prior to Secretarial approval of a mining plan document, provided that the applicant is advised that authorization to mine is not complete. For these reasons, we find that the deletion is not inconsistent with any Federal requirement, and we approve the deletion.

Montana proposed to: (1) Move former ARM 17.24.416(2)(c) to (1)(d); (2) eliminate (2)(b) concerning the extension of permit boundaries beyond the existing permit; (3) revise the cross-reference at proposed (2)(c); and (4) make other grammatical revisions.

Montana states that the elimination of (2)(b) concerning amendments to permits is due to its coverage under major permit revisions: All the provisions of ARM 17.24.401-405 and the performance standards of subchapters 3, 5, 6, 7, 8, 9, and 10. Montana reasons that permit renewals and major permit revisions are distinct processes and should be differentiated. The Federal regulations require that any extension to the area covered by the permit, except incidental boundary revisions, shall be made by a new permit application. This is addressed by Montana at ARM 17.24.417(1).

At 30 CFR 774.15 concerning permit renewals, the Federal regulations allow the renewal form to be set by the regulatory authority (RA) with certain minimum requirements necessary for submission. Montana addresses permit application criteria at ARM 17.24.401 to 17.24.405.

Montana states that the revised cross-reference at (2)(c), from the statutes at MCA 82-4-225 and 82-4-232 to ARM 17.24.1104(1), is a correction. This subsection requires that prior to approving a permit renewal, the Department shall require any additional performance bond. The Federal regulations at 30 CFR 774.15(b)(2)(v) contain a similar provision. The other revisions proposed by Montana to ARM 17.24.416 are non-substantive revisions. We believe that the Montana program contains permit renewal and permit revision provisions substantively identical to the Federal regulations. Thus, we find the proposed Montana revisions are no less effective than the Federal regulations and approve the revisions.

Montana proposed to delete rule ARM 17.24.501A, altering and moving some of its provision to rule 17.24.501, and deleting others. Revisions, deletions, and additions were also proposed for 17.24.501. Revisions not discussed below are minor editorial or codification changes.

At 17.24.501(1), Montana proposed to delete an allowance for an operator to obtain more time for backfilling and grading; a similar provision was proposed to be added at paragraph (6) and will be discussed below. Montana also proposed to delete a provision that required additional bond in cases of extended time allowance. We note, however, that ARM 17.24.1104(1) would still allow the Department to adjust the bond amount “as standards of reclamation change.” The Federal regulations do not have any specific provision requiring additional bonding for extended backfilling and grading times, except for the general bond adjustment clause at 30 CFR 800.30(a). Therefore, we find that this proposed deletion is not inconsistent with the Federal requirements.

At paragraph (4)(intro), Montana proposed to add a new provision incorporating a part of existing 17.24.519A(1)(a), requiring that all final grading be to approximate original contour, that final slopes be graded to prevent slope failure, may not exceed the angle of repose, and must have a static safety factor of 1.3. This is substantively the same as the Federal requirements at 30 CFR 816/817.102(a)(1) and (3).

At subparagraph (4)(a), Montana proposed to delete the requirement to eliminate all spoil piles and depressions. We note that these requirements have been added to the definition of “approximate original contour” at 17.24.301(13) (see Finding C.1. above). Therefore, this proposed deletion does not render the Montana program less effective than the Federal requirements.

At paragraph (6), Montana proposed revised standards for contemporaneous reclamation, that were moved in part from existing 17.24.501A(3). Montana proposed that, for strip mining, there must not be more than four consecutive spoil ridges and backfilling and grading to AOC must be complete within two years after coal removal. For “other excavations” (which presumably would include underground mines), backfilling and grading must be “kept current as departmental directives dictate for each set of field circumstances.” It is unclear whether “departmental directives” refers to written policies or to instructions and/or permit conditions assigned ad hoc to each operation. The Montana proposal also provides for case-specific variances from these standards when approved by the Department based on demonstrations by the operator. The Federal regulations establishing time and distance standards for the evaluation of contemporaneous reclamation at 30 CFR 816.101 have been suspended indefinitely (July 31, 1992; 57 FR 33875). Therefore each regulatory authority may define “as contemporaneously as practicable” for itself in accordance with its State processes. The Federal requirement for contemporaneous reclamation for underground mines at 30 CFR 817.100 also allows regulatory authorities to establish their own schedules. Therefore, we find that Montana's proposals are not inconsistent with the Federal requirements.

At 17.24.501A(1)(a), Montana proposed to delete a statement that the final surface need not have the exact elevations as the premining surface, and a requirement that no slope be steeper than 20 percent without departmental approval. No Federal counterparts exist for these requirements, so their deletion is not inconsistent with the Federal requirements.

At 17.24.501A(1)(b) and (c), Montana proposed to delete requirements for (1) Measuring methods for slopes pre- and post-mining, and (2) an upper limit for postmining slopes based on either the premining slope or lesser slopes specified by the Department. There are no Federal provisions for the measurement of slopes, and no limits on slope steepness beyond those incorporated by Montana at new 17.24.501(4). Therefore, these deletions do not render the Montana program inconsistent with the Federal requirements.

For the reasons discussed above, we approve the revisions proposed for ARM 17.24.501 and .501A.

Montana has proposed revisions to the rule on small depressions to: (1) Add the promotion of wildlife use to the approvable uses for small depressions by the Department of Environmental Quality; (2) delete the phrase that small depressions may not be inappropriate substitutes for construction of lower grades on reclaimed lands; and (3) delete the sentence that small depressions have a holding capacity of less than 1 cubic yard of water.

The Federal regulation at 30 CFR 816/817.102(h) allows the construction of small depressions to enhance wildlife habitat. Therefore, this proposal by Montana addressing wildlife use is no less effective than the Federal counterpart.

The phrase concerning “inappropriate substitutes for the construction of lower grades” comes from the original language in the Federal regulations at 30 CFR 816/817.102(c)(3). This phrase is no longer in the Federal regulations. Therefore, the Montana deletion would make the rules no less effective than the Federal counterpart.

Lastly, the proposed deletion of the size limit would leave it to the Department's discretion to define “small” in various circumstances. The Federal program has no size guidelines for small depressions. We find that the deletion would not be inconsistent with the Federal regulations.

Montana proposed to revise ARM 17.24.510 to allow waste produced outside the permit area to be used for “other purpose or disposed of on the mine site,” in addition to use as fill material, if the permittee can demonstrate that the disposal will be conducted in accordance with sections of the Montana program concerning hydrologic requirements, soil redistribution and stockpiling, the establishment of vegetation, “and any other applicable provisions of the Act and rules.” One included requirement is the performance standards at ARM 17.24.505, which governs the disposal of wastes generated on-site. All waste material used on the permit area must receive prior approval by the Department. Montana's explanatory note indicates that wastes might in the future be used for purposes other than fill or disposal (e.g., for road base material or road sanding in winter).

The counterpart Federal regulations for coal mine waste (30 CFR 816.81(b)/817.81(b)) require that coal mine waste material from activities located outside a permit area may be disposed of in the permit area only if approved by the RA. Approval shall be based upon a showing that such disposal will be in accordance with those section's standards concerning coal mine waste disposal. This language is substantively similar to the Montana proposed revision. The Federal requirements for disposal of noncoal wastes (30 CFR 816.89/817.89) do not address off-site generated wastes or the use of wastes for beneficial purposes like those suggested by Montana. Thus, Montana's proposal to regulate these materials according to the performance standards for hydrology, coal waste disposal, soil protection, revegetation, and all other applicable requirements, is not inconsistent with the Federal requirements.

Since both the Federal regulation and the Montana rule allow for disposal of coal mine waste materials generated off the permitted area when approved by the RA and based a showing that performance standards will be met, we find the Montana revision to be no less effective than the Federal requirements. We approve the proposed rule.

Montana proposed to delete ARM 17.24.514 concerning contouring, stating it to be “redundant.” ARM 17.24.514 states that final grading and surface preparation, before soil replacement, must be done along the contour to minimize subsequent erosion and instability unless approved otherwise by the RA. Surface preparation must be performed to minimize erosion and provide a surface for the replacement of soil that will minimize slippage.

At ARM 17.24.501(4), (5), and (6) and ARM 17.24.702(4) and (5), Montana addresses all or parts of the requirements to restore lands to approximate original contour; to grade to prevent slope failure, slippage and erosion; and to scarify on the contour. The Federal regulations address these requirements at 30 CFR 816/817.102(a), (j), and (k). Therefore, we agree that ARM 17.24.514 is redundant in the Montana program as it is covered at ARM 17.24.501 and 17.24.702. We approve the proposed deletion as being no less effective than the Federal regulations.

At 17.24.519A, Montana proposed to move the requirements with revisions to 17.24.520. We note that Montana, in an earlier program amendment (MT-003-FOR; Administrative Record Nos. MT-12-01 and MT-12-5; February 1 and 28, 1995), proposed deletions in this rule on which OSM deferred a decision (February 12, 2002; 67 FR 6395, 6400; see Finding L). We must address that deferral before we address the current proposals.

The earlier deletions were (1) the requirement that all highwalls and spoil piles be eliminated with spoil and suitable waste materials; and (2) a variance from that requirement, based on highwall retention and alternate reclamation rules at ARM 26.4.313(3)(b) and 26.4.821-824. We further note that this second provision, i.e., the variance, had been deferred by OSM in a still earlier amendment (MT-001 and MT-002; Administrative Record No. MT-5-1; December 21, 1988; see final rule dated May 11, 1990; 55 FR 19728, 19730; see Finding 3). Since this variance provision had never been approved by OSM, we have no objection to its deletion. The deletion of the first provision was deferred until it could be established, by the Montana rule making that is the subject of the current program amendment, that the requirement for the elimination of highwalls and depressions existed elsewhere in the revised Montana program. We note that the currently proposed ARM 17.24.501, referencing the currently proposed definition of “approximate original contour,” does indeed contain this requirement. Hence, we find the earlier-proposed deletion of this requirement, on which we earlier deferred a decision, to be not inconsistent with the Federal requirements. Since the remainder of 17.24.519A is being moved to 17.24.520, we find that the deletion of 17.24.519A does not substantively alter the Montana program, and we approve it.

At 17.24.520(1) and (2), Montana proposed new provisions taken in part from 17.24.519A. Paragraph (1) defines thick overburden according to a factor of 1.2. At paragraph (2), Montana adds the performance standard that for thick overburden, highwall elimination must be accomplished by backfilling (rather than highwall reduction) before any excess spoil disposal would be allowed. The Federal regulations at 30 CFR 816.104 do not place a numerical value on overburden thickness. Rather, thick overburden is defined more generally as those situations where the postmining (bulked) overburden depth so exceeds the premining depth (i.e., the sum of overburden and coal depth) that backfilling and grading would not achieve AOC. The Federal performance standard for thick overburden is to restore AOC, then use remainder to attain the lowest possible grade, or dispose of it as excess spoil. We find the Montana proposal to be consistent with these requirements, and we approve it.

OSM advised Montana in an October 17, 1995, issue letter on MT-003-FOR (Administrative Record No. MT-12-16) that the Montana program needed to address situations where a permit is terminated, revoked, or suspended. In this submittal, Montana proposed a revision clarifying that an operator who permanently ceases strip or underground mining operations in all or part of the permit area must permanently reclaim all affected areas regardless of whether the permit has expired, been revoked, or suspended. Additionally, Montana added an editorial clarification that this provision addresses mining operations not only in all of the permit area, but also when operations cease in only a part of the permit area. Therefore, Montana has made the revisions required by OSM. We find this revision to be no less effective than the Federal regulations and approve the proposed revision.

Montana proposed numerous changes to this rule. In several sections, Montana proposed to apply these requirements to railroad loops in addition to roads. Under OSM's rules, railroads are considered “support facilities.” Their performance standards at 30 CFR 816/817.181 are similar to, but less specific than, the performance standards for roads. We find that applying road performance standards to railroad loops is not inconsistent with the Federal requirements.

In paragraph (1), Montana proposed to expand the conditions under which roads would be allowed to traverse otherwise reclaimed areas, with justification based on the needs of the operation. OSM's regulations do not address any limitation on road location in regard to any potential delay of other reclamation. Thus, we find that this proposed revision is not inconsistent with the Federal requirements.

At paragraph (2)(a) and (b), Montana proposed to delete some requirements for ramp roads. In OSM's regulations, ramp roads are excluded from the definition of “road” at 30 CFR 701.5, and hence OSM has no requirements for ramp roads. At subparagraph (c), Montana proposed to delete several requirements for specific grades, and to delete former (2)(e) regarding horizontal and vertical alignment of roads. New (2) would require that access and haul roads be graded, constructed, and maintained according to sound engineering and construction practices to incorporate appropriate limits for grade, width, surface material, surface-drainage control, culvert placement, and any other design criteria established by the Department. The Federal provisions at 30 CFR 816.150(c) similarly require that the design and construction of roads incorporate “appropriate” limits for grade, without specific numeric grade limits. For the reasons discussed here, we find the proposed revisions at paragraph (2) to be consistent with the OSM regulations.

Montana proposed at paragraph (6) to delete the last sentence regarding the applicability of State and Federal legal limitations on runoff from roads and railroad loops. As Montana notes, this provision is redundant with ARM 17.24.633(4).

At paragraph (9), Montana proposed to add a requirement for Departmental approval of dust-control methods. The Federal requirements at 30 CFR 816.150(b)(1) only require compliance with current prudent engineering practice. We find Montana's proposal to be consistent with the OSM requirement.

At paragraph (10), Montana proposed to delete some specific road reclamation requirements and state that roads must be reclaimed in accordance with the approved plan (under ARM 17.24.321(1)(g), the road reclamation plan must be in accordance with the standards of subchapters 5 through 8). Montana's narrative explained that the intent was to simplify the language while retaining the meaning. Proposed for deletion was the phrase “graded to approximate original contour and ripped, subsoiled or otherwise tilled.” We note that under ARM 17.24.501(4), all affected lands are required to be regraded to approximate original contour, and ARM 17.24.702(4)(b) requires that all regraded areas must be scarified to a minimum of 12,” and the operator must also achieve revegetation success (which may require deeper ripping). Also proposed for deletion was a sentence requiring reclaimed roads to be resoiled, conditioned, and seeded in accordance with subchapter 7 and a sentence indicating reclaimed roads must be abandoned in accordance with the Act and its rules. We note that subchapter 7, the Act, and the Act's rules are applicable with or without this language. Also proposed for deletion was a list of suggested measures to control erosion on reclaimed roads. The requirement to control erosion remains. We note that the suggested list is directory, not mandatory. Based on the above discussion, we find that the proposed revisions to paragraph (10) only eliminate redundant language and do not change any fundamental requirements.

For these reasons, we approve the revisions proposed for ARM 17.24.601.

Montana proposed numerous changes to this rule. Previously, this rule also applied to embankments that impound water. In several sections, Montana proposed to delete requirements for such embankments, adding a new statement at proposed paragraph (5) that embankments which impound water must be designed and constructed in accordance with ARM 17.24.639. We agree with moving the requirements for water-impounding embankments to ARM 17.24.639. They will be discussed in a separate finding below.

In the introductory paragraph, Montana proposed to delete language requiring that road/railroad embankments be designed and certified by a registered professional engineer. We note that this requirement still exists at ARM 17.24.321(3).

At previous paragraphs p(1)-(8) and (10)-(12), Montana proposed to delete numerous specific design, construction, and performance standards. Following the deletions, the remaining standards would be: at (1), removal of all organic material from embankment foundations; at (2), embankment material must meet some suitability standards; at (3), embankment layers must be compacted as necessary; and at (4), minimum seismic safety factor of 1.2 and static safety factor of 1.5 must be met.

OSM requirements for road embankments at 30 CFR 816/817.151(b) apply only to primary roads, and provide that each primary road embankment shall have a minimum static factor of 1.3 (or meet the requirements established under Sec. 780.37(c), which allow for regulatory authorities to establish design standards in lieu of the static safety factor). The Federal regulations for support facilities (which includes railroads) at 30 CFR 780.38/784.30 and 816/817.181 have no embankment or stability requirements. Therefore, we find that the proposed deletion of the more specific design, construction, and performance standards is not inconsistent with the Federal requirements.

For the reasons discussed above, we approve the proposed revisions to ARM 17.24.603.

Montana proposed to delete this rule, which required removal of soil before road or railroad construction, including a distance of 10 feet (or other distance approved by the regulatory authority) from the edge of the road, and to prevent contamination or degradation of soil. In its explanatory note, Montana indicates that all of these requirements are duplicated at ARM 17.24.701, except the 10 feet distance. They note that the 10 feet distance is arbitrary and impractical.

OSM's rules regarding roads and support facilities at 30 CFR 816/817.150, 816/817.151, and 816/817.181 do not address soil handling for roads; instead, soil handling requirements for all mining operations, including roads, are addressed in 30 CFR 816/817.22. There is no requirement for soil removal beyond the edges of roads or railroads. We find that Montana's proposed deletion of ARM 17.24.604 is not inconsistent with the Federal requirements, and we approve the deletion.

Montana proposed numerous changes to this rule. In several sections, Montana proposed to apply these requirements to railroad loops in addition to roads. Under OSM's rules, railroads are considered “support facilities.” Their performance standards at 30 CFR 816/817.181 are similar to, but less specific than, the performance standards for roads. We find that applying road performance standards to railroad loops is not inconsistent with the Federal requirements.

At paragraph (1), Montana proposed to delete the requirement that contributions of sediment not exceed the limits of State or Federal law. As Montana noted in its explanation, this requirement also exists at ARM 17.24.633(4). Therefore, the deletion of this language does not eliminate the requirement.

At paragraph (2), Montana proposed to delete some detailed requirements for locations of road drainage ditches, particularly with regard to cut and fill slopes. Similar language existed in OSM's initial permanent program rules at then-existing 30 CFR 816.153(b)(1), but was subsequently deleted. Currently, at 30 CFR 816/817.151(d)(3), there are no corresponding requirements for road ditches. Montana also proposed to delete the last sentence of paragraph (2), which addressed ditch slope. As Montana notes, this is redundant with paragraph (3) (intro), which requires all roads to be adequately drained. Therefore, we find that these proposed deletions are not inconsistent with Federal requirements.

At paragraph (3), Montana proposed to exclude ramp roads from road drainage control requirements. As noted above, in OSM's regulations ramp roads are excluded from the definition of “road” at 30 CFR 701.5, and hence OSM has no requirements for ramp roads beyond the general sediment controls required in the pit area. Montana also proposed to add culverts and bridges to the non-exhaustive list of drainage control structures that may be used. The Federal provision at 30 CFR 816/817.151(d)(1) similarly suggests culverts and bridges. Therefore, we find that these proposed revisions are not inconsistent with the Federal requirements.

At new subparagraph (3)(a), Montana proposed to delete the restriction that discharge capacity of road water-control structures may not rely on hydraulic head (i.e., impoundment at the entrance). Instead, Montana proposed that the discharge must “safely” pass the required design event. Montana notes in its explanation that use of hydraulic head to increase discharge rates can be safe in some cases. The OSM requirement at 30 CFR 816/817.151(d)(1) only requires that the drainage-control system be designed to “safely pass” the design event. We find the Montana revision to be consistent with the Federal requirement. Montana also proposed to add a provision that the Department may require a greater design event for culverts than the 10-year storm. This revision matches language in the Federal rule.

At new subparagraph (3)(b), Montana proposed to delete a requirement that certain large culverts be designed for a 25-year storm event. Similar language existed in OSM's initial permanent program rules at then-existing 30 CFR 816.153(c)(1), but was subsequently deleted. Current OSM rules require, for primary roads, that the drainage control system be designed for a 10-year storm “or greater event” as specified by the regulatory authority (which was also added by Montana at new subparagraph (3)(a)). We find that Montana's proposed revision is consistent with the Federal requirement.

At new subparagraph (3)(c), Montana proposed to delete culvert requirements for trash racks and fill cover depths. Similar language existed in OSM's initial permanent program rules at then-existing 30 CFR 816.153(c)(1), but was subsequently deleted. OSM's current regulations at 30 CFR 816/817.151(d)(2) require only that culverts be maintained in a free and operating condition. Montana has retained language requiring that culverts be constructed to avoid plugging. We find Montana's proposed deletion to be consistent with the Federal requirements.

Also in this subparagraph, Montana has proposed to delete a provision specifying culvert spacing. Again, similar language existed in OSM's initial permanent program rules at then-existing 30 CFR 816.153(c)(2), but was subsequently deleted. OSM's current regulations at 30 CFR 816/817.151(d)(1) require only that the drainage control system be designed to safely pass the runoff from the design storm event. A similar requirement exists in the Montana program at subparagraph (3)(a). We find Montana's proposed deletion to be consistent with the Federal requirements.

At new subparagraph (3)(f), Montana proposed to delete a cross-reference requiring soil removal to be consistent with ARM 17.24.604. As noted in the finding above, we are approving deletion of the Montana rule at ARM 17.24.604. As noted above, OSM regulations do not impose any soil-removal requirements specific to roads. We find Montana's proposed deletion of this cross-reference to be consistent with the Federal requirements.

For the reasons discussed above, we approve Montana's proposed revisions to ARM 17.24.605.

Montana proposed to make the following revisions concerning the maintenance of roads: (1) Montana proposed to include railroad loops with the performance standards for roads and eliminate the differentiation of “access and haul” roads; (2) at new subsection (2)(a), Montana proposed to eliminate the phrase “resulting from sudden runoff events” concerning wet field conditions; (3) at new subsection (2)(c), Montana proposed to specify that runoff and sediment are contained “in accordance with the approved drainage control plan;” and (4) Montana proposed to make other editorial revisions and to recodify some provisions.

At ARM 17.24.607, as well as other sections in this submittal, Montana proposed to add “railroad loops,” and to eliminate the differentiation of access and haul roads in favor of “roads.” OSM has approved Montana's definition of “railroad loops” in another technical finding. Under OSM's rules, railroads are considered “support facilities.” Their performance standards at 30 CFR 816/817.181 are similar to, but less specific than, the performance standards for roads. We find that applying road performance standards to railroad loops is not inconsistent with the federal requirements.

At paragraph (1), Montana's proposal would apply maintenance requirements to all roads. Since Montana's definition of roads includes more travel ways than does the Federal definition, the maintenance requirement is being applied to all roads covered by the Federal requirement at 30 CFR 816/817.150. Therefore, we find Montana's proposed revision to be consistent with the Federal requirement.

At ARM 17.24.607(2)(a), Montana proposed to eliminate the phrase “resulting from sudden runoff events” concerning the operator's inability to maintain ditches, culverts, drains, trash racks, debris basins and other drainage structures due to wet field conditions. Montana has proposed this deletion to broaden the rule and to consider all wet field conditions, not only those caused by sudden runoff events. For example, this may apply to spring snow melt. As previously approved, the provision in essence allows temporary deferral of maintenance on drainage-control structures under wet conditions, but the deferral is only allowed when there is no environmental or public risk and when all sediment is controlled. There is no corresponding OSM provision. Given the limits on the applicability of the deferral, we find that extending the deferral to other wet field conditions is not inconsistent with the Federal requirements.

Based on the discussions above, we approve Montana's proposed revisions to this rule.

Montana proposed to delete the requirement that the blasting period may not exceed an aggregate of 8 hours in any one day and that the Department may impose more restrictive conditions pursuant to ARM 17.24.624.

The Federal equivalent at 30 CFR 816.64(a)(1) states that the operator shall conduct blasting operations at times approved by the RA and that the RA may limit the area covered, timing, and sequence of blasting as listed in the schedule if such limitations are necessary and reasonable in order to protect the public health and safety or welfare. The provision which Montana proposed for deletion falls within the State's discretion to specify, according to the Federal regulations. There is no exact Federal equivalent. Therefore, we find the proposed revisions are not inconsistent with the applicable Federal provisions and we approve them.

At paragraph (3), Montana proposed to extend the requirement that sediment ponds be constructed prior to mining to all sediment controls and add a cross-reference requiring compliance with ARM 17.24.638 (sediment control measures). As revised, all sediment controls must be constructed before mining operations, and comply with ARM 17.24.638 and 17.24.639. Similarly, OSM's rules at 30 CFR 816/817.46(b)(3) and (4) require all siltation structures to be constructed prior to mining operations, and impoundments to be in compliance with the impoundments rule. We find Montana's proposed revisions to be consistent with the Federal requirements.

At paragraph (4), Montana proposed to delete language specifying under which circumstances effluent limits apply, but the deleted language is replaced by the added language “all discharges which include * * * [water from disturbed areas].” Similarly, Montana proposed to delete a non-exhaustive list of effluent parameters which must be met, but also proposed to replace the deletion with language stating that discharges must be in compliance with all Federal and State laws and regulations and “all applicable effluent limitations.” The Federal requirement at 30 CFR 816.42 requires that discharges of water from disturbed areas meet effluent limits promulgated by the U.S. Environmental Protection Agency. We find Montana's proposed revisions to be consistent with the Federal requirement. At subparagraph (4)(b), Montana proposed to delete language requiring that “when BTCA practices result in a point discharge, the discharge must meet applicable effluent limitations.” Montana's explanation notes that this language is redundant. We agree that the deleted language is repetitive (“discharges must be in compliance with all federal and state laws and regulations and all applicable effluent limitations”). We also note that this deletion would not affect any legal requirements under the Montana counterparts to the Clean Water Act.

At paragraph (6), Montana proposed to delete a provision requiring that “BTCA [Best Technology Currently Available”] practices must be installed, operated, and maintained to treat any water discharged from the disturbed area to ensure compliance with all federal and state laws and regulations and the limitations of this rule.” We agree with Montana that this provision was redundant, repeating other language in the rule as noted above.

For the reasons discussed above, we find that Montana's proposed revisions are no less effective than the Federal requirements, and we approve the proposed revisions.

At paragraph (2), Montana proposed to delete the requirement for operators to submit design modifications at least 120 days prior to reclamation of a drainage. However, the designs would still be required to be approved by the Department before construction begins. We note that reclaimed drainages meet the definition of “diversion” at ARM 17.24.301(33), and in particular are permanent diversions. Hence, under ARM 17.24.317, initial designs must be included in the initial permit application. Further, Montana proposed to delete language requiring the operator to notify the Department when construction begins, and to require Departmental inspection and approval of regraded drainages prior to resoiling and seeding. We agree with Montana that the explicit timeframe for submission of revised designs is not needed, so long as regulatory authority approval is obtained prior to construction. We further agree with Montana's explanatory note that operational efficiencies of both the mine operator and the Department are unnecessarily limited by the notification and pre-soiling inspection and approval requirements. The Federal regulations at 30 CFR 816/817.43 contain no such specific requirements.

Also at paragraph (2), Montana proposed to delete the word “detailed,” used to describe the required designs. We agree that the specific requirements for the designs are specified elsewhere. Also proposed for deletion was the requirement that the designs “represent the state of the art in reconstruction of geomorphically stable channels.” We agree that “state of the art” is a subjective standard difficult to enforce fairly, and that geomorphically stable channels are in any case required under paragraph (1) of the rule.

Montana further proposed to delete language requiring that drainage reclamation designs be certified by a qualified registered professional engineer. Montana's explanatory note indicates that the requirement “is unnecessary, because there does not appear to be more of a rationale for having such designs certified compared to any other work submitted by an operator that does not currently require certification. There is nothing particularly unique or critical (e.g., public safety) about drainage designs that requires certification. Thus, this requirement is proposed for deletion.” We disagree with this position. Like diversions in general, reclaimed stream channels require the calculation of runoff volumes, peak flows, channel-flow velocities, and erosive potential. In this case, there is a particular need to address “geomorphic habit or characteristic pattern,” geomorphic stability, and riffle-pool sequences. Therefore, we find adequate need for professional engineer design and certification. We note that the Federal rules at 30 CFR 816/817.43(b)(4) require stream channel diversions of intermittent and perennial streams to be designed and certified by a registered professional engineer. However, we note that in this case deletion of this language does not in fact delete the requirement that reclaimed drainages be designed and certified by a registered professional engineer. As discussed above, these reclaimed drainages meet the Montana definition of “diversion” at ARM 17.24.301(33). Hence, under ARM 17.24.635(5), design and certification by a registered professional engineer is still required for any diversion of a stream channel.

At paragraph (3), Montana proposed to remove subparagraph (1)(a) from the requirements for which alternative reclamation techniques might be approved. This deletion would restrict the allowed variance to a greater extent than is currently approved. There is no exact Federal counterpart to this rule. The regulations at 30 CFR 780.21(h), 816.41(a) and (d), and 816/817.43(b) require that diversions protect the hydrologic balance, water quality, and channel volume. We find Montana's proposed deletion to be consistent with those requirements.

For the reasons discussed above, we find that Montana's proposed revisions are no less effective than the Federal requirements, and we approve the proposed revisions. As noted above, approval of the proposed deletion in paragraph (2) of the requirement for engineer design and certification of designs for drainage channel reclamation does not effectively eliminate that requirement, as it is duplicated in ARM 17.24.635(5).

At subparagraph (1)(c), Montana proposed to delete a requirement that sediment storage in sediment ponds be determined using the universal soil loss equation (with some specified parameters), the sediment density method, or other empirical method derived from regional studies. The revision would instead require only that the sediment storage volume be determined by a method approved by the Department. One currently-approved alternative to this, to provide 0.035 acre-feet per disturbed acre, was proposed to be revised by reducing the required volume to 0.02 acre-feet per acre and excluding acres of well-established reclamation. Lesser sediment storage would be allowed upon site-specific demonstration, but greater sediment volume may be required if necessary. The corresponding Federal regulation at 30 CFR 816/817.46(c)(1)(iii)(A) only requires sediment ponds to provide adequate sediment storage volume. The preamble to this regulation (48 FR 44032, 44041-2; 9/26/83) states that the determination of actual sediment storage volume is left to the professional engineer, and that in approving the design the regulatory authority must be satisfied that the storage volume is adequate. Montana has long-term experience in working with sediment volume estimates in its coal fields. Under the proposed revision, Montana must approve the method of storage volume calculation. Montana has also determined that 0.02 acre-feet of storage per acre of disturbed area is adequate. Montana also retains the ability to require greater storage volumes when necessary. Therefore, this proposed revision is no less effective than the corresponding Federal regulation.

At paragraph (2), Montana proposed to delete a requirement that the permittee may be required to conduct annual bathymetric studies of some sediment ponds. There is no such requirement in the Federal regulations. Therefore, the proposed deletion is not inconsistent with the Federal requirements.

At existing paragraph (6), Montana proposed to delete a statement that compliance with this rule does not eliminate operator responsibility for compliance with the effluent limits of ARM 17.24.633. The earlier rule, as discussed above, requires that all discharges must be in compliance with all effluent limits. We agree with Montana that the language proposed for deletion duplicates the requirements of ARM 17.24.633. Therefore, the proposed deletion is not inconsistent with the Federal requirements.

At existing paragraph (9), Montana proposed to delete a requirement that embankments for sediment ponds be constructed in compliance with ARM 17.24.603. As discussed above, Montana is moving such requirements from ARM 17.24.603 to this rule at paragraphs (11)-(17). Therefore, this proposed deletion does not remove any applicable requirements.

At existing paragraphs (12), (14), and (15), Montana proposed to delete requirements that (1) Embankment heights be increased to allow for settlement; (2) specified embankment slopes; and (3) specified foundation scarification. There are no such requirements in the Federal regulations. Therefore, the proposed deletions are not inconsistent with the Federal requirements.

At new paragraphs (13) and (15)(c), Montana proposed to add requirements for embankment foundation construction on steeper slopes and embankment compaction standards. There are currently no such Federal requirements, though similar detailed design specification were earlier included in OSM's first permanent program regulations in 1979. These requirements are not inconsistent with the Federal requirements for impoundment stability at 30 CFR 816/817.49(a)(4) and foundation stability at 816/817.49(a)(6).

At paragraph (18), Montana proposed to add a requirement for temporary sediment controls during sediment pond construction. There is no such requirement in the Federal regulations, but this is not inconsistent with the requirement at 30 CFR 816/817.46(b) that additional contributions of sediment be prevented to the extent possible.

At paragraph (22)(b), Montana proposed a new requirement that, for ponds containing (rather than passing) design storms, the design certification indicate that safe dewatering will occur within appropriate times. Montana proposed this revision in response to our letter of July 10, 1997 (Item 10b), in which we identified issues in a previous program amendment submittal. The proposed addition is substantively the same as the Federal requirement at 30 CFR 816/817.49(c)(2).

At paragraph (27)(a), Montana proposed to delete a requirement that, for excavated sediment ponds, the perimeter slopes must not be steeper than 33 percent. Montana's explanatory note indicates that steeper slopes would help minimize the amount of land disturbed and increase operational efficiency. The Federal regulations at 30 CFR 816/817.46 and 816/817.49 do not specifically address excavated impoundments, nor their perimeter slopes. The vertical portion of any remaining highwall is required at 816/817.49(a)(10) to be far enough below water line to provide adequate safety for water users. Impoundment designs must be certified as meeting current, prudent engineering practices, which would include stable slopes; this would still be required by the Montana rule. We find the proposal to be consistent with these requirements.

For the reasons discussed above, we approve these proposed revisions.

Montana proposed to revise these paragraphs to update references to standard water quality analysis methods that may be used for ground water monitoring. Most of the revisions are editorial clarifications. One of the standard references proposed for approval is the Department's “Circular WQB-7” (November 1998 edition). In a final rule dated February 12, 2002 (67 FR 6395, 6401; see Finding P), we deferred a decision whether to approve an earlier proposed revision to these paragraphs that referenced an earlier (April 1994) edition of “Circular WQB-7.” We deferred then because Montana informed us that “Circular WQB-7” was being revised, and we could not approve the revised rule until the new edition of “Circular WQB-7” was reviewed by OSM to ensure that it did not conflict with 40 CFR part 136.

We have not yet been able to review the revised “Circular WQB-7.” However, we note that the current proposed revision requires groundwater analyses to comply with both 40 CFR part 136 and “Circular WQB-7.” Hence, if any conflict exists, the discrepancy would have to be resolved in favor of the more stringent requirements. Therefore, we find that the proposed revisions are not inconsistent with the Federal requirement, and we approve the revisions. This action supercedes the earlier deferral.

Montana proposed to delete the requirement that soil redistribution achieve “approximate uniform” thicknesses. Montana's explanatory note indicates that the intent is “to allow varying soil substrate thicknesses conducive to plant diversity and specific revegetation needs.”

We note that ARM 17.24.701 requires removal of soil from all areas disturbed by mining operations. Hence, “redistribution” would imply that all such areas receive at least some soil during resoiling operations. Similarly, ARM 17.24.702(1) and (2) require soil to be distributed on all graded areas. Taken together with paragraph (6) as proposed for revision, all of these requirements would imply that no area disturbed by mining operations could be left without any soil. So the question is whether the disturbed area must all be resoiled to the same thickness.

The preamble to the Federal regulation (48 FR 22100; May 16, 1983) included a discussion of this issue. Concern was expressed by a commenter that uniform soil depths might lead to monocultures and be incompatible with reclamation objectives. In response, OSM modified the final rule to add that redistribution would be to an approximately uniform thickness “consistent with the approved postmining land use” and final graded contour. We note that native undisturbed soils exhibit a great range of depths within small areas, reflecting both topographic impacts and biotic influences, and soil depth range contributes to the premine plant communities and landscape diversity. Efforts to reconstruct the premining ecosystem should thus also include varying replaced soil depths to reflect topography, the various plant communities to be obtained by revegetation, and postmining land use. The Montana rules at ARM 17.24.313(4)(c)(ii) require such soil replacement depths to be specified in the permit application. We note that the majority of reclamation in Montana is directed to the postmining land uses of grazing and wildlife habitat, with the goal of achieving diverse plant communities, for which varying soil depths are appropriate. On lands with postmining land uses where approximately uniform soil replacement depths are appropriate (such as cropland or pasture), Montana would retain the authority to require such approximately uniform depths.

Because Montana has retained the requirement that soil be redistributed in a manner that achieves thicknesses consistent with soil resource availability and appropriate for the postmining vegetation, land uses, contours, and surface water drainage patterns, we find that the proposed deletion of the requirement for approximate uniform thickness does not render the Montana program less effective than the Federal requirements in achieving the purposes of SMCRA.

Montana proposed to move from ARM 17.24.716(2) two requirements: that the revegetation consist of predominantly native species and that the revegetation be capable of self-regeneration. We agree with Montana that those requirements make more sense in this rule, stating general performance standards, than in the latter rule about revegetation methods. Accordingly, we approve this revision.

Montana also proposed to add exceptions to the “predominantly native” requirement as provided in MCA 82-4-233(4) or 82-4-235(2). The first of these is a provision that, for some operations (those seeded between SMCRA's initial regulatory date and January 1, 1984), introduced species are considered by Montana to be necessary and desirable to achieve the postmining land use and may constitute a major or dominant component of the revegetation. This provision was approved by OSM on June 12, 2001 (66 FR 31530, 31531; Finding 3). The provision at MCA 82-4-235(2) provides a similar allowance, and supplemental planting without restarting the bond liability period, for areas disturbed prior to SMCRA regulation. It was approved by OSM on January 22, 1999 (64 FR 3604, 3608; Finding 8). The revision proposed at ARM 17.24.711(1) implements these previously-approved statutory exemptions, and is therefore not inconsistent with the Federal requirements. Therefore, we approve this revision.

As noted in the finding above, Montana proposed to move two requirements from paragraph (2) of this rule to ARM 17.24.711: that the revegetation consist of predominantly native species and that the revegetation be capable of self-regeneration. This revision was approved in that finding. Other descriptors proposed for deletion here (e.g. permanent, diverse) are duplicated in the earlier rule, and we also approve those deletions.

Montana also proposed in paragraph (2) to: (1) Change a requirement for Department approval of seeding other than on the contour to a requirement that seeding be done on the contour whenever possible; and (2) delete an allowance for drill seeding in separate rows according to Soil Conservation Service (now known as Natural Resources Conservation Service) guidelines. These existing requirements provided more detail than is contained in the Federal requirements at 30 CFR 816/817.22 and .111-.114. Therefore, deletion of these more specific provisions is not inconsistent with the Federal requirements and we approve them.

At subparagraph (5)(b), Montana proposed to add two allowances for introduced species intended to implement two statutory revisions previously approved by OSM. For the same reasons discussed in the finding above on ARM 17.24.711, we approve the revisions proposed here.

Montana proposed to delete a provision requiring that, when counting woody plants with multiple stems, only the tallest stem may be counted. There is no Federal counterpart for the provision proposed for deletion.

We agree with Montana's statement that it is often difficult to determine which multiple stems constitute one individual, and hence difficult to obey the provision. Further, as long as the same techniques are used for both determining success standards and measuring success against those standards, determination of revegetation success is not hindered. Therefore, we find that the proposed deletion does not render the Montana program less effective than the Federal regulations and we approve the revision.

In this paragraph, Montana proposed to revise one method of determining revegetation success standards for non-prime farmland cropland from target yields under ARM 17.24.815(2) to technical standards from historical data under 17.24.724(5). We note that success standards for prime farmlands are those specified at ARM 17.24.815(2). The success standards addressed in this revision are for non-prime cropland, and need not address the requirements for prime farmland.

The Federal regulations at 30 CFR 816/817.116(b)(2) require only that, in determining whether revegetation meets the premining vegetation, either a reference area or other success standards be specified by the regulatory authority. We find that the reference to technical standards derived from historic data meets these requirements. Therefore, we approve the revision.

Montana proposed revisions to these sections in response to OSM's letter (June 5, 1996) in accordance with 30 CFR part 732, which informed Montana of changes needed to its program to implement the provisions of the Energy Policy Act for subsidence protection and water supply restoration in connection with underground mines.

Montana notes that it interprets its statutory language at 82-4-231(10)(f) to require that (except where planned subsidence is used) subsidence be prevented, rather than merely minimized or mitigated. For this reason, it has altered certain Federal counterparts in these proposed revisions, as will be discussed below.

At subparagraph ARM 17.24.901(1)(c)(i)(G), Montana proposed to require a survey of the condition of all residences (and related structures) and all non-commercial buildings within the area of the pre-subsidence survey (i.e., the permit area and adjacent area). We consider this area to be at least as extensive as the area initially required by the Federal regulation at 30 CFR 784.20(a)(3) (i.e., the angle of draw). However, the areal extent of the Federal requirement is in any case under suspension by court order.

At subparagraph 17.24.901(1)(c)(iii)(A)(II) and (III), Montana proposed (for the subsidence control plan) to require a description of measures to be taken underground and on the surface to prevent subsidence and material damage to structures and lands. These proposals reflect Montana's statutory interpretation noted above that the rules must prevent subsidence. The counterpart Federal requirements at 30 CFR 784.20(b)(5) require descriptions of measures to prevent or minimize subsidence and material damage. We find Montana's proposal to be no less effective than the Federal requirements.

At subparagraph 17.24.911(2), for operations with planned and controlled subsidence, Montana proposed to require that all necessary measures be taken to prevent material damage to protected structures. The only exception is if the operator has written consent from the owners. This proposal again reflects Montana's statutory interpretation noted above that the rules must prevent subsidence. The counterpart Federal requirements at 30 CFR 817.121(a)(2) require measures to minimize damage “to the extent technologically and economically feasible,” and an additional exception is allowed for cost-benefit considerations. We find Montana's proposal to be no less effective than the Federal requirements.

At subparagraph 17.24.911(7)(d), Montana proposed to add a requirement that the operator must replace any adversely affected domestic water supply. This paragraph applies only when underground mining has resulted in subsidence that causes material damage or reduces the value or use of surface lands. So, by adding the new provision to this particular paragraph, Montana appears to be limiting the water-replacement requirement to instances where subsidence has occurred and that subsidence has caused material damage or reduced the value or use of surface lands. The Federal requirement at 30 CFR 817.41(j) is not so limited, and applies to water supply contamination, diminishment, or interruption by any underground mining activities, regardless whether or not subsidence has occurred.

Additionally, there is an ambiguity on this point in Montana's statutory provision for water replacement for underground mines, at MCA 82-4-243. This statutory provision was submitted by Montana in a previous program amendment (Administrative Record MT-17-01; July 20 and August 17, 2000; approved by OSM on June 12, 2001 (66 FR 31530; see Finding No. 4)). The sentence requiring water replacement does not contain any limitation to subsidence (“The permittee of an underground coal mining operation shall * * * promptly replace any drinking, domestic, or residential water supply from a well or spring that was in existence prior to the application for the permit pursuant to 82-4-222 and that has been affected by contamination, diminution, or interruption resulting from the underground coal mining operation”). However, the entire section 82-4-243 is titled “Subsidence.” Therefore, it is unclear whether Montana intends the statute to limit water replacement for underground mines to instances where subsidence has occurred.

Under standard canons of legal analysis, by proposing in this amendment to add the water replacement requirement at subparagraph ARM 17.24.911(7)(d), which applies only when subsidence has occurred, Montana may be understood to be resolving the statutory ambiguity by interpreting the statutory provision to be limited only to instances of subsidence. And were we to approve the proposal, we could be approving that limiting interpretation; such approval would render the statutory provision less stringent than SMCRA 720(a)(2). Additionally, under standard canons of legal analysis, a specific requirement for water replacement in one circumstance (where subsidence has occurred), as proposed here, while remaining silent on other circumstances (i.e., where no subsidence has occurred) may be interpreted as a deliberate exclusion of the alternate (silent) circumstance. Therefore, Montana's proposed rule might be interpreted as requiring water replacement only when subsidence has occurred and has caused material damage or reduced the value or use of surface lands. Such an interpretation would render the Montana rules less effective than the Federal requirement at 30 CFR 817.41(j), which is not so limited.

For these reasons, we do not approve the proposed addition of ARM 17.24.911(7)(d). Since the rule has already been promulgated, we are requiring Montana to amend its program by removing this provision. Further, in order to resolve the ambiguity in its statutory provision at 82-4-243, MCA (discussed above), we are requiring that Montana further amend its rules to require the prompt replacement of any drinking, domestic or residential water supply that is contaminated, diminished, or interrupted by underground mining activities, regardless of the occurrence of subsidence or whether subsidence has caused material damage or reduced the value or use of surface lands, to be no less effective in meeting the requirements of SMCRA 720(a)(2) than is 30 CFR 817.41(j).

At paragraph ARM 17.24.911(8), Montana proposed to add provisions establishing a rebuttable presumption of causation of damage by subsidence, and standards for rebutting the presumption. The proposal closely resembles the equivalent Federal counterparts at 30 CFR 817.121(4). However, these Federal requirements were suspended on December 22, 1999 (64 FR 71653). Montana's proposal provides another means for citizens to establish that damage to their buildings and/or residences was caused by subsidence (and hence subject to compensation or repair as discussed above). Even where the presumption is not applicable, citizens have other, though more difficult, means of proving causation. Protecting surface owners and those with legal interests in non-commercial buildings from the adverse effects of mining operations is one of the purposes of the Act specified at SMCRA 102(b). Therefore, providing the rebuttable presumption results in more stringent land use controls and regulation of mining operations than does the Federal regulations under the suspension. Therefore, under 30 CFR 730.11(b), we find that the proposal is not inconsistent with the Federal requirements.

Except as discussed above, the revisions proposed for ARM 17.24.901 and .911 are either minor editorial or recodification changes, or contain language that is the same as or similar to the corresponding Federal regulations promulgated to implement the Energy Policy Act on March 31, 1995 (60 FR 16722). We find that they are no less effective than the corresponding Federal regulations. Except as discussed above regarding ARM 17.24.911(7)(d), and for the reasons discussed above, we approve the revisions proposed for these two sections.

Montana proposed only a minor editorial revision to this rule, to revise a cross-reference to 17.24.924(18)(b). This cross-reference was created during an earlier program amendment (MT-003-FOR; Administrative Record Nos. MT-12-01 and MT-12-5; February 1 and 28, 1995). In the final rule addressing that amendment, OSM deferred on whether to approve the cross-reference, stating that the cross-reference should be to all of rule 17.24.924 and not to just one paragraph or subparagraph (see February 12, 2002; 67 FR 6395, 6404; see Finding Y). In this submittal, Montana has revised the cross-reference to reflect a recodification of 17.24.924, but has not revised the cross-reference in a way to resolve the problems identified earlier by OSM. For the reasons stated in the February 12, 2002 rule, we continue to defer a decision on this revision.

Montana proposed to add at ARM 17.24.1001(2)(l) a new requirement that applications for prospecting permits include documentation that the owners of the land to be affected have been notified and understand that the Department has a right of entry for inspection and enforcement purposes.

There is no exact Federal counterpart to this proposed requirement. The Federal regulations noted above require that exploration permit applications contain the names and addresses of owners of both surface and mineral estates in the areas to be affected and, if the applicant does not own the land, a description of the legal basis for the right to explore. Additionally, as is true of the Montana program, a public newspaper advertisement of the application is required. The Montana proposal is similar to these Federal requirements, but would require more exacting and documented notification of land owners. One of the purposes of SMCRA is to assure that the rights of surface landowners and others with a legal interest are fully protected (SMCRA 102(b)). We find the Montana proposal to be consistent with this goal, and we approve the proposal.

Similarly, Montana proposed to add at ARM 17.24.1018(3) and (4) new requirements that prospecting notices of intent include (1) Copies of documents providing legal right to prospect, and (2) documentation of notice to landowners similar to that discussed above. Again, there are no exact Federal counterparts at 30 CFR 772.11. However, for the reasons discussed above in regard to ARM 17.24.1001(2)(l), we approve the proposal.

At ARM 17.24.1112(h), Montana proposed to specify that “any affected person” may submit written comments, objections, and requests for public hearing or informal conference to the Department of Environmental Quality concerning the filing for bond release by the permittee. This information would be included in an advertisement in a newspaper of general circulation in the locality of the permit area.

The Federal regulations at 30 CFR 800.40(f) state that “Any person with a valid legal interest which might be adversely affected by release of the bond, or responsible officer or head of any Federal, State, or local governmental agency which has jurisdiction by law or special expertise with respect to any environmental, social, or economic impact involved in the operation or which is authorized to develop and enforce environmental standards with respect to such operations, shall have the right to file written objections to the proposed release from bond with the regulatory authority * * *.”

Montana's use of the term, “any affected person,” would include persons with a valid legal interest and those without a valid legal interest but affected in some other way. This interpretation is similar to the Federal regulations which address both those persons with a valid legal interest which might be adversely affected by release of the bond, and the responsible officer or head of agencies which have jurisdiction by law or special expertise with respect to environmental, social, or economic impact involved in the operations. Therefore, Montana has included in its rules a term with a substantively identical interpretation to the Federal regulations. We find the Montana revision to be no less effective than the Federal regulations and approve it.

Montana proposed to delete an existing provision at subparagraph MCA 82-4-205(10) that stated the Department may conduct hearings under “this part” (i.e., title 82. Minerals, Oil, And Gas; chapter 4. Reclamation; part 2. Coal and Uranium Mine Reclamation). Montana proposed to add a new paragraph (2) to provide that the board (i.e., the Board of Environmental Quality) shall conduct contested hearings under the part. The effect of these revisions would be to transfer the authority to conduct contested case hearings from the Department to its overseeing board. Montana also proposed a new provision at MCA 82-4-206(1) stating that a person aggrieved by a final decision of the Department may within 30 days request a hearing before the board.

SMCRA is silent on the issue of which body should conduct contested case hearings. A provision addressing permit disputes at SMCRA 514(c) forbids anyone who presided at an informal conference from presiding at a formal hearing. SMCRA 525 establishes administrative review by the Secretary of the Interior, although under SMCRA 701(22), the Secretary is also the regulatory authority (RA). SMCRA 201(c) states that the Secretary, acting through OSM, shall be responsible for both program decisions and administrative review. In practice, however, administrative review under Federal programs is conducted by a panel answerable to the Secretary but independent from OSM. The Federal regulations at 30 CFR 732.15(b)(14) require that State programs provide for administrative review in accordance with SMCRA 525 and 30 CFR parts 840-847 (which implies the panel noted above). The 30-day period proposed by Montana is consistent with the time frames set forth in the Federal requirements. We find these Montana proposals to be consistent with the Federal requirements and we approve them.

Montana proposed several revisions to this statutory section to alter the timing of mining permit application review in coordination with reviews under the Montana Environmental Policy Act. The revisions do not amend any substantive requirements for reviewing mining permit applications.

SMCRA does not directly address the review of permit applications under the Federal National Environmental Policy Act. However, SMCRA 503(a)(6) does require that State programs include a process for coordinating the review and issuance of coal mining permits with any other State permit process applicable to the operation. We find the proposed revisions to be consistent with the Federal provisions and we approve them.

Montana proposed to define the term “railroad loop” in its program as meaning any rail transportation system within the mine permit area, whether in the form of a loop or a straight line. Montana's program currently uses the term “railroad loop” in its definition of “operation” and does not provide for straight rail configurations. Montana states that at the time the Act was passed (1973), most rail configurations were loops. In order to assure that the Department of Environmental Quality has jurisdiction over all rail configurations, Montana decided to define “railroad loop.”

There is no direct Federal counterpart to Montana's proposed definition. At 30 CFR 816.180/817.180, OSM uses the term “railroad” in the discussion of utility installations. OSM does not differentiate among railroad configurations since that is not critical to SMCRA. Rather, it is the classification of railroads as utility installations and their regulation which is important. Therefore, OSM finds Montana's proposed definition to be consistent with the Federal regulations, and we approve it.

Montana proposed to add two new provisions. At new paragraph (2), Montana proposed that bond forfeiture money not addressed in existing paragraph (1), be used for expenses pursuant to MCA 82-4-240, which addresses bond forfeiture reclamation. At new paragraph (3), Montana proposed a disposition of excess bond forfeiture funds when Montana cannot locate the funds' owners.

SMCRA does not specifically address these issues. The Federal regulations at 30 CFR 800.50 at (b)(2) require forfeiture receipts to be used for reclamation. At 30 CFR 800.50(2)(c), excess funds are to be returned to the party from whom they were collected, but the regulation is silent about disposition of the funds when that party cannot be located. We find the Montana proposals to be consistent with the Federal provisions and we approve them.

We asked for public comments on the amendment (Administrative Record No. MT-20-06). We received a comment letter from one individual, with several comments as discussed below.

The commenter expressed a concern about the proposed removal of blasting restrictions. We interpret this as a reference to ARM 17.24.623, where Montana proposed to delete the requirement that the blasting period may not exceed an aggregate of 8 hours in any one day. We note that under ARM 17.24.624, blasting is still restricted to daylight hours. As discussed in Finding C.19 above, the Federal rules do not provide for any more strict limitation.

An additional concern was expressed regarding the proposal to allow steeper slopes on the insides of ponds and the possibility that under the proposal, cattle and wildlife would be more likely to drown in winter. We interpret this as a reference to ARM 17.24.639(27)(a) where Montana proposed to delete a requirement that, for excavated sediment ponds, the perimeter slopes must not be steeper than 33 percent. As discussed in Finding C.22. above, there is no more stringent Federal requirement, so Montana's proposal is not inconsistent with the Federal regulations. We note that at ARM 17.24.642(1)(d), permanent impoundments may be approved only on a demonstration of adequate safety and access for water users. However, this does not apply to temporary impoundments (nor does the corresponding Federal requirement at 30 CFR 816/817.49(b)(4)). We note that in Montana, where a given mining operation may exist in an area for decades, “temporary” may also mean decades. We note further the availability of the option under 30 CFR 700.12 to submit a petition for rulemaking, in case the commenter or other persons believe that the Federal rules should be revised to include long-term “temporary” impoundments under the category of permanent impoundments.

Another comment addressed the allowance to build excavations without spillways. We interpret this as a reference to ARM 17.24.639(7)(a), where Montana proposed to add a statement that excavated ponds need no spillway. We note that this provision was actually submitted to OSM as part of an earlier program amendment that was approved (Administrative Record No MT-12-25, approved February 12, 2002; 67 FR 6395, 6401; see Finding N). However, in this current amendment Montana, in its narrative following Rule 639, indicated its intent in promulgating the provision saying that excavated ponds by their nature have no spillway. We interpret this as a reference to a dictionary definition of “spillway,” which indicates that a spillway is a channel to rout excess water around an obstruction such as a dam. If the pond is totally excavated, there is no obstruction to route water around. We note that most of the spillway requirements in the Federal regulations are designed to prevent failure of pond embankments, which would allow all of the stored water in the pond, as well as incoming water, to threaten downstream areas. In excavated ponds, there is no danger of embankment failure, and the stored water will stay where it is. It is true that once the pond is filled, additional inflow will result in outflow from the pond. This will happen at one location of the pond's perimeter where the ground surface is lowest. Montana in its narrative recognizes this, and states that the outflow area below the excavation may require stabilization against erosion under ARM 17.24.640. That rule requires that discharge from ponds must be controlled by engineer-designed and certified structures or vegetation (open-channel spillways may also be stabilized by vegetation if the engineering design allows). Thus, if an engineer is designing outflow erosion control measures below an excavated pond, the resulting structure would be little different than a spillway. It just would not be bypassing an obstruction, and hence might not be called a spillway.

The commenter also noted Montana's proposal at ARM 17.24.634(2) to delete language requiring that drainage reclamation designs be certified by a qualified registered professional engineer. The commenter appears to have misinterpreted this rule to apply to impoundments, when it applies to reclaimed drainages that serve as diversions. As discussed in Finding C.21. above, although Montana is deleting the requirement that designs be certified by a qualified registered professional engineer, the requirement still exists at ARM 17.24.635(5). We further note that under ARM 17.24.639(22), all impoundments must be designed, inspected, and certified by a qualified registered professional engineer experienced in the construction of impoundments. The commenter further addresses ARM 17.24.634(2), where Montana proposed to delete the requirement that the regraded channel not be resoiled or seeded until inspected and approved by the Department. In particular, the commenter expressed skepticism that Montana would make an operator redo deficient work if it were already resoiled and seeded. As discussed in our finding, we agree with Montana that operational efficiencies of both the mine operator and the Department are unnecessarily limited by the notification and pre-soiling inspection and approval requirements. The commenter's concern would apply equally to all phases of reclamation, and if justified would be a greater problem for general postmining surface configuration than for drainages. If the commenter's concern is justified, it would be a problem to be addressed in program oversight, particularly reviewing permit revisions approving “as-built” grading changes or drainage designs. In any case, we note that the Federal regulations at 30 CFR 816/817.43 contain no such specific pre-resoiling inspection and approval requirements, so we cannot find Montana's deletion to be inconsistent with the Federal requirements.

The commenter further observes that many provisions proposed for deletion in this program amendment have already been deleted in rule packages Montana makes available to the public. As we note below (see “Effect of OSM's Decision”), Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an approved State program be submitted to OSM for review as a program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any changes to approved State programs that are not approved by OSM. In our oversight of State programs, we recognize only the statutes, regulations and other materials we have approved, together with any consistent implementing policies, directives and other materials. We require Montana to enforce only approved provisions. If the commenter is aware that any unapproved revisions are being enforced or implemented, the commenter should notify OSM's Casper Field Office of such (See “For Further Information Contact” provided at the beginning of this rule) so that OSM may take any necessary site-by-site inspection and enforcement actions and include an appropriate review in our annual oversight of the Montana program.

The commenter also expressed some concern with the proposed revision at ARM 17.24.733, where Montana proposed to delete a provision requiring that, in counting woody plants with multiple stems, only the tallest stem may be counted. As discussed above in Finding C.27., the critical factor is that any vegetation parameter (cover, production, stem density, or others) be measured using the same methodology in setting success standards and determining operator compliance with the standard.

Finally, the commenter noted that the definitions in Montana's statute (presumably, 82-4-203, MCA) need to be examined and discussed. We are unclear in what way this comment relates to the current amendment. We did not note in reviewing the proposed regulatory definitions any conflict with the statutory definitions. If the commenter has any specific concerns, they should be addressed to the Casper Field Office.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Montana program (Administrative Record No. MT-20-03).

We received a reply from the Bureau of Indian Affairs (Rocky Mountain Regional Office) indicating that the revisions were acceptable from their point of view (Administrative Record No. MT-20-04).

We also received a reply from the Mine Safety and Health Administration, indicating that they found no direct impact on employee or public health or safety, and hence had no comments or recommendations (Administrative Record No. MT-20-05).

Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

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

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On May 14, 2002, we requested comments on Montana's amendment from the SHPO and ACHP (Administrative Record No. MT-20-03), but neither responded to our request.

Based on the above findings, we approve, with the following exceptions and additional requirements, Montana's May 7, 2002 amendment.

We defer decision on the following proposed revisions: Finding No. C.3., ARM 17.24.301(79), 17.24.303(14), and 17.24.404, concerning ownership and control; and Finding No. C.30., ARM 17.24.932(5)(b), concerning inspections of durable rock fills on underground mines.

With the requirement that Montana further revise its rules, we do not approve, as discussed in: Finding No. C.29, ARM 17.24.911(7)(d), concerning replacement of water supplies harmed by underground mining activities.

To implement this decision, we are amending the Federal regulations at 30 CFR part 926, which codify decisions concerning the Montana program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires a State program to demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

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

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

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

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

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

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on any Tribe, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The State of Montana, under a Memorandum of Understanding with the Secretary of the Interior (the validity of which was upheld by the U.S. District Court for the District of Columbia), does have the authority to apply the provisions of the Montana regulatory program to mining of some coal minerals held in trust for the Crow Tribe. This proposed program amendment does not alter or address the terms of the MOU. Therefore, this rule does not affect or address the distribution of power between the Federal Government and Indian Tribes or the relationship between the Federal Government and Indian Tribes.

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

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

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

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

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

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

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

The NPS administers 388 areas throughout the country “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” The National Park Service Organic Act, 16 U.S.C. 1. Although the nearly 300 million annual visitors to the national park system use a variety of access methods, the vast majority rely on motor vehicles and roadways to reach park areas and to circulate within them. Consequently, the NPS has major responsibilities and program involvement in the areas of road construction and maintenance, traffic safety and traffic law enforcement.

There are approximately 8,000 miles of NPS-administered roads open to the public within the national park system. These 8,000 miles compare in magnitude to the State of Arizona's road system, except that they are scattered throughout the United States and its territories. There is great variety in the nature and extent of park roads. They range from very short lengths of unpaved secondary roadways, to well-developed road systems complete with spur roads, parking areas and overlooks, to parkways running for hundreds of miles through several States, to parkways used primarily as commuter routes in the Washington, DC area. In addition, many park areas contain State and/or county highways and roads over which the NPS may exercise varying degrees of jurisdiction.

On April 2, 1987, the NPS promulgated a final rule (36 CFR 4.23) concerning operating a motor vehicle under the influence of alcohol (52 FR 10683). That rule prohibits the operation or control of a motor vehicle if the alcohol concentration in the operator's blood or breath is 0.10 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath. The regulation provides, however, that if State law governing operation of a motor vehicle while under the influence of alcohol establishes more restrictive limits of alcohol concentration in the operator's blood or breath, those limits supersede the limits specified in this paragraph. The regulation is implemented primarily through roadside signing, text in brochures, and incidental public contact.

On March 3, 1998, President Clinton directed the Secretary of Transportation to work with Congress, other Federal agencies, the States, and others to develop a plan to promote the adoption of 0.08 BAC as the legal limit for a per se impaired driving offense. Specifically, he further directed that the plan consider setting a 0.08 BAC standard on all Federal property, including Department of Defense installations and the national parks. The directive also called for strong enforcement of, and publicity regarding, the 0.08 BAC standard. The benefits of the 0.08 standard in lives saved and injuries prevented have been documented extensively.

On January 31, 2003, the NPS published a proposed rule in the Federal Register (68 FR 4975), stating that it proposed to revise its regulation to reduce the BAC standard from 0.10 grams of alcohol per 100 milliliters of blood or 210 liters of breath, to 0.08 grams.

The NPS received two comments in response to the proposed rule, both of which support adoption of the lower 0.08 BAC standard.

The first commenter stated that he supported the 0.08 BAC standard, and also urged its adoption by the NPS with regard to boating and water use activities. That subject is dealt with in part 3 of 36 CFR, specifically 36 CFR 3.6(b). This rule deals only with part 4. The suggestion, however, will be taken into consideration in any future revision of part 3.

The second commenter also supported the lower BAC standard, but noted that the language of the proposed revision (as contained in the proposed rule) would also add a superfluous reference to breath. Specifically, the language of the proposed revision would have added “breath is” to the first sentence of 36 CFR 4.23(a)(2), just after “100 milliliters of blood or” and just before “0.08 grams or more of alcohol per 210 liters of breath.” The NPS agrees that the extra wording is unnecessary, and that the only change needed in the language of the existing 36 CFR 4.23(a)(2) is to substitute “0.08” for “0.10”. The second commenter also stated that authorities in the State of California have had difficulty treating violations of the NPS regulation as prior offenses under California's driving under the influence (DUI) statutes. The reasons cited by the commenter, however, do not relate to the BAC standard, but to other factors such as, for example, the California courts' strict interpretation of the State's DUI laws.

After considering the comments, and in light of their unanimous support of the lower 0.08 BAC standard, the NPS is adopting the rule as proposed, with the editing change discussed in the paragraph above.

This document is not a significant rule and is not subject to review by the Office of Management and Budget under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Actions taken under this rule will not interfere with other agencies or local government plans, policies, or controls. This is an agency specific rule.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule will have no effect on entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. No grants or other forms of monetary supplements are involved.

(4) This rule does not raise novel legal or policy issues. The lower legal blood alcohol concentration level is prevalent throughout the United States and has been adopted by most other Federal agencies and States.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Although the regulation has significant implications for public safety, it does not have monetary implications. There are no businesses that depend on the public's ability to operate a motor vehicle while intoxicated. The rule will likely provide non-monetary benefits to the NPS and other law enforcement agencies through decreased accidents and injuries.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(1) Does not have an annual effect on the economy of $100 million or more.

(2) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(3) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector.

In accordance with Executive Order 12630, the rule does not have significant takings implications. A takings implication assessment is not required. No taking of personal property will occur as a result of this rule.

This rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment pursuant to Executive Order 13132. This rule only affects the use of roads on NPS administered lands. 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.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This regulation does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required. An OMB form 83-I is not required.

The National Park Service has analyzed this rule in accordance with the criteria of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370d) and the Department of the Interior Manual (516 DM 1.1-7.7). The regulation has been found to be covered by an applicable categorical exclusion (516 DM 6, Appendix 7.4 A.10), and no exceptions to categorical exclusions (516 DM 2, Appendix 2) apply to the regulation. The National Park Service has documented this finding in accord with the agency's procedures (Director's Order #12: Conservation Planning, Environmental Impact Analysis, and Decision-making, and the accompanying Handbook). As a result, the National Park Service is not legally required to prepare, and has not prepared, either an environmental assessment (EA) or an environmental impact statement (EIS).

In accordance with Executive Order 13175 “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249), the President's memorandum of April 29, 1994, “Government to Government Relations with Native American Tribal Governments” (59 FR 22951), and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and determined that there are no potential effects.

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 Forsyth 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 October 6, 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).)

Pursuant to sections 182(b)(2) and 182(f) of the CAA, the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NOX sources. The major source size is determined by its location, the classification of that area, and whether it is located in the ozone transport region (OTR). Under section 184 of the CAA, RACT, as specified in sections 182(b)(2) and 182(f) applies throughout the OTR. The entire Commonwealth is located within the OTR. Therefore, RACT is applicable statewide in Pennsylvania.

On October 26, 1999, and February 4, 2003, PADEP submitted formal revisions to the Pennsylvania SIP which establish and impose case-by-case RACT for several major sources of VOC and/or NOX. This rulemaking pertains to two of those sources. The remaining sources are or have been the subject of separate rulemakings. The RACT determinations and requirements are included in plan approvals (PA) or operating permits (OP) issued by the Commonwealth. The following table below identifies the sources and the individual operating permits (OP) which are the subject of this rulemaking.

A. Tarkett Inc.—Tarkett, Inc. (Tarkett) is a vinyl flooring manufacturing facility located in Lehigh County. Tarkett is a major source of VOC and a minor source for NOX. PADEP issued an operating permit (OP 39-0002) to establish and impose RACT for Tarkett. Under the OP 39-0002, the NOX emission limit shall never exceed 100 tons per year. Under the OP 39-0002, Tarkett must not exceed 356.81 tons of VOC per year. Both limits must be met on a rolling monthly basis over a consecutive 12-month period. Under OP 39-0002 , Tarkett must maintain all records, testing data and calculations to clearly demonstrate compliance with Sections 129.95 and 129.91-94 of 25 Pennsylvania's Code of Regulations. Record keeping requirements shall include the following, but not be limited to: a record of all VOC containing compounds used at the facility as well as calculations on the individual source emissions and the VOC emissions for the entire facility; the felt mill must maintain monthly records of the hydropulper feed materials for all batches, the paper machine slurry must maintain monthly feed rates and hours of operation; the four meter line must maintain monthly records of the types of urethane, urethane usage, and hours of operation; all air pollution control systems must conduct performance evaluations, records of calibration checks, adjustments and maintenance performed on all equipment which are subject to OP 39-0002. Also, the type of VOC contained products stored, a record of quantities, identify usage and recovery of all VOC solvents used in clean-up operations for the entire facility. All record keeping requirements must be calculated on a monthly basis (12-month period). The storage and handling of materials collected in the air cleaning device(s) shall not at anytime result in the emissions of fugitive air contaminants. Temperature measuring and recording devices on the thermal incinerator shall be maintained to show gases exiting the combustion chamber or zone. All records shall be retained and maintained for at least two years. Under OP 39-0002, Tarkett must operate and maintain all processes according to good engineering and air pollution control practices in accordance with applicable PADEP regulations.

B. Harcros Pigments, Inc.—Harcros Pigments Inc. (Harcros) is a manufacturer of synthetic and natural iron oxides for use in chemical and pigmenting applications. Harcros is located in Northampton County. Harcros is a major source of NOX and minor source for VOC. On July 31, 1996, PADEP issued an operating permit (OP 48-0018) to establish and impose RACT for Harcros. Under OP 48-0018, Harcros must comply with Section 129.93(2) of 25 Pennsylvania Code of Regulations for the Cleaver Brooks boiler with a rated heat input of 25.1 MMBtu/hr and the Babcock & Wilcox boiler with a rated heat input of 36.4 MMBtu/hrs. Presumptive RACT for these units shall be the performance of an annual adjustment or tune-up on the combustion process. The emergency generator shall be limited to 500 hours of operation in a consecutive 12-month period. The remaining units which have a rated heat input of less than 20 MMBtu/hr shall install, maintain, and operate all units in accordance with manufacturers' specifications. The total allowable NOX emission limit for this facility shall not exceed 207.0 tons per year. Under OP 48-0018, Harcros must operate and maintain all equipment according to good engineering and air pollution control practices. All measurements, records and other data required to be maintained by the company shall be retained for at least two years following the date on which such measurements, records and/or data are recorded.

EPA is approving these SIP revisions because the Commonwealth established and imposed RACT requirements in accordance with the criteria set forth in SIP-approved regulations for imposing RACT or for limiting a source's potential to emit. The Commonwealth has also imposed record-keeping, monitoring, and testing requirements on these sources sufficient to determine compliance with these requirements.

EPA is approving revisions to the Commonwealth of Pennsylvania's SIP to establish and require VOC and/or NOX RACT for two major sources listed in this document. EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This direct final rule will be effective on October 6, 2003 without further notice unless we receive adverse comment by September 5, 2003. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number PA203-42104a 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 morris.makeba@epa.gov, attention PA203-4210a. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for two named sources.

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 October 6, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving Pennsylvania's source-specific RACT requirements to control VOC and/or NOX from two individual sources may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On November 6, 2002, the Maryland Department of the Environment (MDE) submitted a formal revision to its SIP (#02-05) consisting of amendments to Code of Maryland's Administrative Regulations (COMAR) 26.11.06 General Emission Standards, Prohibitions and Restrictions. This regulation contains general provisions that apply to an installation when no other pollutant or source specific requirement exists. The specific revisions to Regulations .02 .03, and .05 remove applicability of the visible emission standard for sources with particulate matter emission controls; expand applicability of unconfined emission requirements; remove prohibitions on visible emissions beyond a source's property line; expand certain visible emission exceptions; and require an adjustment to sulfur compound (SOx) test results.

Regulation .03 of COMAR 26.11.06 establishes general particulate matter emissions standards for sources in the State. Subsection .03C specifically addresses particulate matter emissions from unconfined sources that are not discharged into the outdoor atmosphere through a stack, duct, hood, flue, or other conduit. The regulation requires these sources to take reasonable precautions, approved by the Maryland Department of the Environment (MDE), to prevent particulate matter from becoming airborne. Reasonable precautions include the installation and use of hoods, fans, and dust collectors to enclose, capture, and vent emissions.

Subsection .03D establishes requirements for controlling particulate matter from materials handling and construction and prohibits material to be handled, transported, or stored, or a building, its appurtenances, or a road to be used, constructed, altered, repaired, or demolished without taking reasonable precautions to prevent particulate matter from becoming airborne.

Prior to this SIP revision, the provisions in Regulation .03C were applicable in only certain areas of the State. Furthermore, sources that did comply with the requirement to install measures to prevent airborne particulate matter emissions were still subject to the State's visible emissions standards. The revisions approved in today's action will expand applicability of the requirements for unconfined sources to the entire state. This SIP revision also amends the applicability of the general visible emissions standard in Regulation .02 to exclude those unconfined sources that comply with Subsection .03C and those materials handling and construction activities that comply with .03D. In other words, the latter sources that install and implement reasonable controls, approved by MDE, to control particulate matter are excluded from the general visible emission standard. Finally, to be consistent with the exclusions for materials handling and construction activities, the SIP revision also removes the prohibition on visible emissions at the property line for these activities.

COMAR 26.11.06.05 establishes SOx emission limits for process installations other than fuel burning equipment. COMAR 26.11.06.05A requires calculations of emissions to be adjusted to standard conditions as defined in COMAR 26.11.01.01B(46). This section is being amended to require that the calculations of emissions also be adjusted to 7 percent oxygen to assure that the test results are not diluted with excess air.

EPA is approving the revisions to COMAR 26.11.06, General Emission Standards, Prohibitions, and Restrictions, submitted to EPA on November 6, 2002. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on October 6, 2003 without further notice unless EPA receives adverse comment by September 5, 2003. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number MD140-3094a 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 morris.makeba@epa.gov, attention MD140-3094a. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

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

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

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

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (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. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 6, 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 to approve revisions to MDE's regulations at COMAR 26.11.06, General Emission Standards, Prohibitions, and Restrictions, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions: What is the Part 70 operating permits program? What is being addressed in this document? What action is EPA taking?

The Clean Air Act (CAA) Amendments of 1990 requires all states to develop operating permits programs that meet certain Federal criteria. In implementing this program, the states are to require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. One purpose of the Part 70 operating permits program is to improve enforcement by issuing each source a single permit that consolidates all of the applicable CAA requirements into a Federally enforceable document. By consolidating all of the applicable requirements for a facility into one document, the source, the public and the permitting authorities can more easily determine what CAA requirements apply and how compliance with those requirements is determined.

Sources required to obtain an operating permit under this program include: “major” sources of air pollution and certain other sources specified in the CAA or in EPA's implementing regulations.

Revisions to the state operating permits program are subject to public notice, comment, and EPA approval.

The state of Kansas has requested that EPA approve as a revision to the 40 CFR Part 70 Operating Permits Program the following revisions:

1. This revision to K.A.R. 28-19-202 Annual Emissions Fee raised the annual rate from $18.00 per ton to $20.00 per ton for emissions occurring in 2001 and later. This revision changes the annual rate back to the original rate set when the Title V program was established, for which Kansas made a demonstration that it was collecting fees sufficient to cover its costs of implementing the Title V program. This monetary revision will adjust the balance in the air quality fee fund to adequately support the current actual developmental costs of the program.

2. This revision to rule K.A.R. 28-19-517 Class I Operating Permits, annual emission inventory changed the annual inventory due date for Class I operating permits from April 1 of each year to June 1. This revision is being made to allow additional time to submit fees and to regulate the fee cycle with the state's budget cycle.

EPA is approving the revision to the Kansas Operating Permits Program to change the due date of the annual emission inventory from April 1 to June 1, and to raise the annual emissions fee from $18.00 to $20.00 per ton for emissions occurring in the year 2001 and later. On June 25, 2001, the state of Kansas submitted a request for EPA to revise the rules to reflect these changes.

We are processing this action as a direct final action because the revisions make routine changes to the existing rules which are noncontroversial. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives an adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number, KS 189-1189a, 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. 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. 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.

a. Electronic mail. Comments may be sent by e-mail to Heather Hamilton at hamilton.heather@epa.gov. Please include identification number KS 189-1189a 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.

b. Regulations.gov. Your use of regulations.gov is an alternative method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, click on “To Search for Regulations,” then select Environmental Protection Agency 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.

2. By Mail. Written comments should be sent to the name and address listed in the ADDRESSES section of this document.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (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 CAA. 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 state operating permits programs submitted pursuant to Title V of the CAA, EPA will approve state programs provided that they meet the requirements of the CAA and EPA's regulations codified at 40 CFR part 70. 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 state operating permits program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program submission, to use VCS in place of a state program that otherwise satisfies the provisions of the CAA. 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 6, 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 a Federal or State Government Agency involved in Administration of Environmental quality programs (i.e., Departments of Agriculture, Environment, etc). Potentially affected entities may include, but are not limited to:

• Federal or State Government Entity, (NAICS 9241), i.e., Departments of Agriculture, Environment, etc.

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-2003-0207. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

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

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

EPA, on its own initiative, in accordance with sections 408(e) and 408(l)(6) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, is establishing a tolerance for residues of the insecticide spinosad, in or on onion, dry bulb at 0.10 parts per million (ppm). This tolerance will expire and is revoked on December 31, 2006. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations.

Section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on section 18 related tolerances to set binding precedents for the application of section 408 of the FFDCA and the new safety standard to other tolerances and exemptions. Section 408(e) of the FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.

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. . . .”

Section 18 of the FIFRA authorizes EPA to exempt any Federal or State Agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” This provision was not amended by the Food Quality Protection Act (FQPA) of 1996. EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

The State of New Mexico requested the use of spinosad to control thrips on onion, dry bulb due to documented resistance of thrips to pyrethroid insecticides. EPA has authorized under FIFRA section 18 the use of spinosad on onion for control of thrips in New Mexico. After having reviewed the submission, EPA concurs that emergency conditions exist for this State.

As part of its assessment of this emergency exemption, EPA assessed the potential risks presented by residues of spinosad in or on onions. In doing so, EPA considered the safety standard in section 408(b)(2) of the FFDCA, and EPA decided that the necessary tolerance under section 408(l)(6) of the FFDCA would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in section 408(l)(6) of the FFDCA. Although this tolerance will expire and is revoked on December 31, 2006, under section 408(l)(5) of the FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on onions after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by this tolerance at the time of that application. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because this tolerance is being approved under emergency conditions, EPA has not made any decisions about whether spinosad meets EPA's registration requirements for use on onions or whether a permanent tolerance for this use would be appropriate. Under these circumstances, EPA does not believe that this tolerance serves as a basis for registration of spinosad by a State for special local needs under FIFRA section 24(c). Nor does this tolerance serve as the basis for any State other than New Mexico to use this pesticide on this crop under section 18 of FIFRA without following all provisions of EPA's regulations implementing FIFRA section 18 as identified in 40 CFR part 166. For additional information regarding the emergency exemption for spinosad, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT.

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 November 26, 1997 (62 FR 62961) (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 spinosad and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for a time-limited tolerance for residues of spinosad in or on onions at 0.10 ppm. EPA's assessment of the dietary exposures and risks associated with establishing the tolerance follows.

The dose at which no observed adverse effect level are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological endpoint. However, the lowest dose at which observed 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.

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (aRfD or cRfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor 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 level of concern (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 (MOEcancer = point of departure/exposures) is calculated. A summary of the toxicological endpoints for spinosad used for human risk assessment is shown in the following Table 1:

1. Dietary exposure from food and feed uses. Tolerances have been established (40 CFR 180.495) for the residues of spinosad, in or on a variety of raw agricultural commodities. Tolerances range from 0.02 ppm (many commodities; limit of quantitation) to 20 ppm (aspirated grain fractions). Risk assessments were conducted by EPA to assess dietary exposures from spinosad 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. An acute dietary exposure risk assessment is not required because the Agency did not identify an acute dietary endpoint that was applicable to females (13+ years) or to the general population, including infants and children.

ii. Chronic exposure. In conducting this chronic dietary risk assessment the Dietary Exposure Evaluation Model (DEEMTM) analysis evaluated the individual food consumption as reported by respondents in the U. S. Department of Agriculture (USDA) 1989-1992 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 chronic exposure assessments: The chronic dietary (food only) analysis represents a moderately refined estimate of dietary exposure to spinosad due to the use of default processing factors, percent crop treated (PCT) estimates for agricultural crops having previously registered uses, and anticipated residues for meat and milk. This Tier 3 DEEMTM analysis shows that dietary (food only) exposure estimates are below the Agency's LOC for all population subgroups. The highest chronic dietary exposure was for children 1-6 years old at 0.018540 mg/kg/day, representing 69% of the cPAD. Exposure for the U.S. population was 0.008127 mg/kg/day, representing 30% of the cPAD.

iii. Cancer. Spinosad has been classified by the Agency as a not likely human carcinogen. Therefore, a cancer dietary exposure analysis was not performed.

iv. Anticipated residue and 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 follows: Almond 5%; apple 28%; apricot 5%; avocado 5%, bean, snap 9%; broccoli 62%; cabbage 32%; cauliflower 54%; celery 78%; collards 24%; cherry 5%; eggplant 14%; grapefruit 1%; grape, wine 1%; kale 32%; lemon 11%; lettuce, head 59%; Lettuce, other 42%; mustard greens 17%; orange 6%; peach 4%; pepper 45%; pistachio 1%; prune/plum 5%; spinach 32%; pumpkin 1%; squash 1%; sweet corn 1%; tangerine 6%; turnip, greens 6%; tomato, fresh 30%; tomato, processed 2%; watermelon 1%; cotton 3%; dry bean/pea 1%; peanut 1%; potato 1%; wheat, and winter 1%.

The Agency believes that the 3 conditions listed above have been met. With respect to condition 1, PCT estimates 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. 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 spinosad 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 spinosad 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 spinosad.

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 ground water. For a screening-level assessment for surface water EPA will generally 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 spinosad they are further discussed in the aggregate risk sections below.

Based on the FIRST and SCI-GROW models the EECs of spinosad for acute exposures are estimated to be 25 parts per billion (ppb) for surface water and 0.037 ppb for ground water. The EECs for chronic exposures are estimated to be 2.3 ppb for surface water and 0.037 ppb for ground water.

3. From Non-dietary exposure. The term “residential exposure” is used in this document 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). Spinosad is currently registered for use on residential turf and ornamentals to control a variety of insect pests. The registered residential products for spinosad are Conserve SC Turf and Ornamental (EPA Reg No. 62719-291) and Conserve Fire Ant Bait (EPA Reg No. 62719-304). Conserve Fire Ant Bait is a ready-to-use granular formulation that may be applied by homeowners. For adults, residential exposures may result from dermal and inhalation exposure while applying Conserve Fire Ant Bait and/or from dermal contact with treated turf. However, dermal, post-application exposure is not of concern since no toxicological endpoint was established for dermal exposure. Inhalation exposure is not expected due to the low vapor pressure of spinosad and because the homeowner product is formulated as a granular. Post-application exposure to toddlers was not assessed for the Conserve Fire Ant Bait product since children are not likely to “habit” lawn areas where fire ant mounds are present. Conserve SC is labeled for use on turfgrass and ornamentals by commercial applicators. Since this product will be applied by commercial applicators, homeowner applicator exposure was not assessed. For toddlers, dermal and non-dietary oral post-application exposures may result from dermal contact with treated turf as well as hand-to-mouth transfer of residues from turfgrass. Since dermal post-application exposure is not of concern, only hand-to-mouth, object-to-mouth and incidental ingestion of soil exposures for the turf and ornamental uses were performed. The average aerobic soil metabolism half-life of spinosad (containing factors A and D) is 13-14 days. For the intermediate-term duration, typical lawn maintenance practices, such as mowing and watering, are expected to expedite the dissipation of spinosad on turfgrass. Since residue on turf that is available for transfer after day 30 is expected to be negligible, intermediate-term post-application incidental oral exposures were not assessed. The Agency developed exposure formulas and estimated doses to theoretically assess residential post-application incidental oral exposure scenarios including: (1) Hand-to-mouth, (2) object-to-mouth (turfgrass), and (3) incidental ingestion of soil. The resulting incidental oral ingestion MOEs from residential use of spinosad on turf are as follow:

• MOE for oral hand-to-mouth activities on treated lawns is 800 for short-term (1-30 days).

• MOE for oral object-to-mouth (turfgrass) from treated lawns is 3,300 for short-term.

• MOE for incidental ingestion of soil from treated lawns is 240,000 for short-term.

• Combined incidental oral MOE (hand-to-mouth, object-to-mouth, and soil ingestion) is 640. All MOEs are below EPA's LOC.

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 spinosad 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, spinosad 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 spinosad 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. FFDCA section 408 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 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. There is no indication of increased susceptibility of rat and rabbit fetuses to in utero and/or postnatal exposure.

3. Conclusion. There is a complete toxicity data base for spinosad and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. EPA determined that the 10x safety factor to protect infants and children should be removed. This recommendation is based on:

i. There is no evidence of increased susceptibility of rat or rabbit fetuses following in utero exposure in the developmental studies with spinosad, and there is no evidence of increased susceptibility of young rats in the reproduction study with spinosad.

ii. There are no residual uncertainties identified in the exposure data bases; the dietary food exposure assessment (chronic only; no acute endpoint was identified) is refined using Anticipated Residues calculated from field trial data and available PCT information (100% crop treated is assumed for proposed new uses).

iii. The dietary drinking water exposure is based on conservative modeling estimates.

iv. EPA's Health Effect Division Residential Standard Operating Procedures were used to assess post-application exposure to children as well as incidental oral exposure of toddlers, so these assessments do not underestimate the exposure and risks posed by spinosad.

v. A developmental toxicity study is not required.

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. 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 + chronic non-dietary, non-occupational 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 EPA 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 spinosad 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 spinosad on drinking water as a part of the aggregate risk assessment process.

1. Acute risk. Acute aggregate risk consists of the combined dietary exposures from food and drinking water sources. The total exposure is compared to the acute RfD. An acute RfD was not identified since no effects were observed in oral toxicity studies that could be attributable to a single dose. Therefore, the Agency concludes that there is a reasonable certainty of no harm from acute aggregate exposure to spinosad.

2. Chronic risk. Using the exposure assumptions described in unit C for chronic exposure, EPA has concluded that exposure to spinosad from food will utilize 30% of the cPAD for the U.S. population, 41% of the cPAD for infant <1 year old and 69% of the cPAD for children 1-6 years old (subpopulation at greatest exposure). Based on the use pattern, chronic residential exposure to residues of spinosad is not expected. In addition, there is potential for chronic dietary exposure to spinosad in drinking water. After calculating DWLOCs and comparing them to the EECs for surface water and ground water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the following Table 2:

This is a summary of the Commission's Report and Order in CC Docket No. 01-174, FCC 03-151 released on July 3, 2003. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 Twelfth Street SW., Washington, DC, 20554.

1. In this Report and Order, as part of our biennial regulatory review under section 11 of the Communications Act of 1934, as amended (the Act), we modify the requirements governing how the National Exchange Carrier Association (NECA) conducts elections for its board of directors (Board). We eliminate the requirement that NECA hold annual elections and that Board members serve one-year terms. We also liberalize our rules regarding contested elections for NECA's non-telecommunications industry directors (Outside Directors). Under the liberalized rules, no Outside Director may serve for more than six consecutive calendar years without standing for an election in which that director is opposed by at least one other qualified candidate. By modifying our election requirements for the Board, we reduce the regulatory burdens that the current election requirements impose on NECA, while furthering our goal of ensuring that NECA fulfills certain Commission-specified functions.

2. We find that the current election process imposes several unnecessary administrative burdens on NECA and therefore we eliminate certain election requirements for NECA's Board. We also find, however, that because NECA continues to perform certain functions pursuant to Commission rules, we have a continuing interest in ensuring that NECA fulfills its obligations. In retaining certain requirements, we seek to ensure that NECA, as overseen by its Board, continues to comply with the Commission's rules. We find that the modifications to the Board requirements allow us to achieve our goals, yet impose minimal burdens on NECA.

3. We retain the current composition of NECA's Board positions, which consists of five Outside Directors, two directors representing Subset I, two directors representing Subset II, and six directors representing Subset III. NECA is a unique organization that performs several functions pursuant to the Commission's rules, including the administration of the common line and traffic sensitive access tariff pools. The access rates established by these pools have a direct impact on interstate telephone rates and pursuant to section 201 of the Act, interstate telephone rates must be just and reasonable. We believe that a Board that consists of directors representing all classes of carriers helps to ensure that NECA prepares accurate and reasonable tariffs, which in turn helps to further the Commission's implementation of the statutory requirement that rates be just and reasonable.

4. Although we retain our rules regarding the composition of the Board, we find that it is appropriate to eliminate our rule that requires that NECA elect its directors annually for one-year terms. As NECA notes, Delaware General Corporation Law (DGCL) does not require non-stock corporations like NECA to hold annual elections. We find it is no longer in the public interest to retain such requirements in our rules because we accept NECA's claim that the election requirements are overly burdensome without a concomitant benefit. Our primary policy goal is to ensure that NECA, as overseen by its Board, fulfills its Commission-specified functions. In this regard, we believe that the composition of the Board positions, and not how often elections are held or the terms of the directors, best achieves this goal. We find that the presence on the Board of five Outside Directors is particularly important to achieving our goals, including providing effective governance of NECA consistent with our rules. As described in more detail, we amend the contested election requirement for Outside Directors to provide NECA greater flexibility in how it elects these Outside Directors. With regard to the Board generally, we conclude that safeguards exist to ensure that NECA will adopt an appropriate election process, even absent specific Commission direction, because NECA must continue to comply with all applicable DGCL rules and regulations.

5. We believe that it is in the public interest, as NECA proposes, to modify the contested election rules so that instead of every three years as the current rules require, Outside Directors may not serve for more than six consecutive calendar years without standing for an election in which that director is opposed by at least one other qualified candidate. The Commission instituted contested elections for Outside Directors to “assure NECA's members an opportunity to choose among a range of candidates for each outside director position.” Also, the overarching goal of the NECA Board Order, 60 FR 19528, April 19, 1995, was to add Outside Directors to NECA's Board to bring independent perspectives to NECA's deliberations and ensure that NECA complies with the Commission rules. While our goals remain the same, we recognize the burdens associated with contested elections, and believe that this rule can be liberalized without impairing our achievement of those fundamental goals. We believe it appropriate to amend our rules so that contested elections for Outside Directors will occur at least every six years. We note that, although we are relaxing the contested election requirement for Outside Directors, this will not preclude contested elections from taking place more frequently than every six years. If it so chooses, NECA may allow independent parties to challenge an incumbent Outside Director's seat whenever that seat is subject to an election.

6. The rule amendments adopted herein will be effective thirty days after publication in the Federal Register. We also direct NECA to revise its by-laws and articles of incorporation as required by Delaware state law and in accordance with this order, and to submit its revised by-laws to the Commission as soon as practicable. Finally, we note that NECA lists its current Board of directors on its Internet website. We strongly encourage NECA to continue to post this listing and revise it each time there is a change to the Board.

7. Final Regulatory Flexibility Certification. The Regulatory Flexibility Act of 1980, as amended, (RFA), requires that a regulatory flexibility analysis be prepared for notice and comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

8. In this Report and Order, we amend certain of our rules pertaining to the National Exchange Carrier Association (NECA), which operates pooling mechanisms to collect and distribute revenues among its participating carriers. In particular, we eliminate the requirement that NECA hold annual elections and the requirement that NECA's board of directors serve one-year terms. We also modify the rule requiring NECA to hold contested elections for its non-telecommunications industry directors (Outside Directors) at least every three years. Under the modified rule, Outside Directors may not serve more than six consecutive calendar years without standing for a contested election. In the Initial Regulatory Flexibility Certification in the Notice, we stated that the proposed rules, if adopted, would not have a significant economic impact on a substantial number of small entities. No comments were received concerning that initial certification.

9. We conclude that this regulatory flexibility certification is appropriate for the amended rules adopted herein. NECA is a non-profit association created to administer the Commission's interstate access tariff and revenue distribution processes. Because the proposed rule amendments affect only NECA directly, we find that the amendments will not affect a substantial number of small entities. In addition, any economic effect that might result is positive (de-regulatory) and not significant. Therefore, we certify that the amended rules adopted in this Report and Order will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of the Report and Order, including a copy of this Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act. In addition, the Report and Order and this final certification will be sent to the Chief Counsel for Advocacy of the SBA, and it will be published in the Federal Register.

10. Pursuant to the authority contained in sections 1, 4(i), 11, 201-205, 218-220, and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 161, 201-205, 218-220, and 403, and 5 U.S.C. 553(d), that part 69 of the Commission's rules, is amended, and is effective September 5, 2003.

11. The National Exchange Carrier Association's Petition for Waiver, filed January 31, 2003, is dismissed without prejudice.

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

This is a synopsis of the Commission's Report and Order, MB Docket No.02-363, adopted July 24, 2003, and released August 1, 2003. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail at qualexint@aol.com.

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 Pacific halibut bycatch mortality allowance for groundfish included in the other hook-and-line fishery, which is defined at § 679.21(d)(4)(iii)(C), was as established by the final 2003 harvest specifications for groundfish of the GOA (68 FR 9924, March 3, 2003) for the second season, the period June 10, 2003, through September 1, 2003, as 5 metric tons. The other hook-and-line fishery includes all groundfish except for demersal shelf rockfish in the Southeast Outside District or sablefish.

In accordance with § 679.21(d)(7)(ii), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the second seasonal apportionment of the 2003 Pacific halibut bycatch mortality allowance specified for the hook-and-line groundfish fisheries other than demersal shelf rockfish in the Southeast Outside District or sablefish has been reached. Consequently, NMFS is prohibiting directed fishing for groundfish other than demersal shelf rockfish in the Southeast Outside District or sablefish by vessels using hook-and-line gear.

Maximum retainable amounts may be found in the regulations at § 679.20(e) and (f).

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 second seasonal bycatch mortality allowance of Pacific halibut apportioned to hook-and-line gear, 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 § 679.21 and is exempt from review under Executive Order 12866.