This rule is issued under Marketing Agreement No. 130 and Marketing Order No. 958, both as amended (7 CFR part 958), regulating the handling of onions grown in certain designated counties in Idaho, and Malheur County, Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Idaho-Eastern Oregon onion 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 onions beginning on July 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 increases the assessment rate established for the Committee for the 2003-2004 and subsequent fiscal periods from $0.08 to $0.095 per hundredweight of onions handled, and establishes, in the regulatory text, the Committee's fiscal period. The fiscal period begins July 1 of each year and ends June 30 of the following year.

The order provides authority for the Committee, with the approval of USDA, to establish a fiscal period. The Committee has operated under a fiscal period of July 1 through June 30 since its inception in the late 1950's, but this period has never been specified in the regulatory text. This rule adds to the order's rules and regulations a definition of the Committee's fiscal period. The fiscal period will be defined to be the 12-month period beginning July 1 and ending June 30 of the following year, both dates inclusive.

The order also 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 Committee consists of six producer members, four handler members and one public member. 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 2000-2001 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period 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 April 3, 2003, and in a vote of seven in favor, one against, and one abstention, recommended an assessment rate of $0.095 per hundredweight of onions handled. The assessment rate of $0.095 is $0.015 higher than the rate currently in effect. The order authorizes the Committee to establish an operating reserve of up to one fiscal period's operational expense. However, the Committee has maintained the operating reserve at a level of approximately one-half of one fiscal period's operational expenses. The Committee, over the last four fiscal periods, has reduced its operating reserve to this level. The Committee recommended the $0.015 increase so the total of assessment income ($870,200), contributions ($79,800), interest income ($6,000), and other income ($1,000) will equal the recommended expenses for 2003-2004 of $957,000. With these revenue sources, the Committee will not need to access its operating reserve and will maintain the reserve at the current level.

The Committee met on June 12, 2003, and unanimously recommended 2003-2004 expenditures of $957,000. In comparison, last year's budgeted expenditures were $1,044,824. The major expenditures for the 2003-2004 fiscal period include $10,000 for committee expenses, $148,353 for salary expenses, $72,610 for travel/office expenses, $59,170 for research expenses, $27,250 for export expenses, $589,617 for promotion expenses, and $50,000 for unforeseen marketing order contingencies. Budgeted expenses for these items in 2002-2003 were $10,000, $143,814, $77,460, $59,550, $54,000, $675,000, and $25,000, respectively.

The Committee estimates that onion shipments for the 2003-2004 fiscal period will be approximately 9,160,000 hundredweight, which should provide $870,200 in assessment income. Income derived from handler assessments, along with contributions ($79,800), interest income ($6,000), and other income ($1,000) will equal expenses. The Committee estimates that its operating reserve will be approximately $434,303 at the beginning of the 2003-2004 fiscal period. Funds in the reserve will be kept within the maximum permitted by the order of approximately one fiscal year's operational expenses (§ 958.44).

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 will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period 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 2003-2004 budget and those for subsequent fiscal periods would 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 final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and 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 37 handlers of Idaho-Eastern Oregon onions who are subject to regulation under the order and approximately 250 onion producers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA)(13 CFR 121.201) as those having annual receipts less than $5,000,000, and small agricultural producers are defined as those having annual receipts less than $750,000.

The Committee estimates that 32 of the 37 handlers of Idaho-Eastern Oregon onions ship under $5,000,000 worth of onions on an annual basis. According to the “Vegetables 2002 Summary” reported by the National Agricultural Statistics Service, the total farm gate value of onions in the regulated production area for 2002 was $93,807,000. Therefore, the 2002 average gross revenue for an onion producer in the regulated production area was $375,228. Based on this information, it can be concluded that the majority of handlers and producers of Idaho-Eastern Oregon onions may be classified as small entities.

This rule establishes, in the regulatory text, the Committee's fiscal period beginning July 1 of each year and ending June 30 of the following year, and increases the assessment rate established for the Committee for the 2003-2004 and subsequent fiscal periods from $0.08 to $0.095 per hundredweight of onions handled. The Committee recommended an assessment rate of $0.095 per hundredweight, which is $0.015 higher than the rate currently in effect. The quantity of assessable onions for the 2003-2004 fiscal period is estimated at 9,160,000 hundredweight. Thus, the $0.095 rate should provide $870,200 in assessment income, which along with anticipated contributions, interest income, and other income will cover budgeted expenses expected to total about $957,000.

The major expenditures recommended by the Committee for the 2003-2004 fiscal period include $10,000 for committee expenses, $148,353 for salary expenses, $72,610 for travel/office expenses, $59,170 for research expenses, $27,250 for export expenses, $589,617 for promotion expenses, and $50,000 for unforeseen marketing order contingencies. Budgeted expenses for these items in 2002-2003 were $10,000, $143,814, $77,460, $59,550, $54,000, $675,000, and $25,000, respectively.

The Committee reviewed and unanimously recommended 2003-2004 expenditures of $957,000. This budget increases the budget line items for salary expenses and marketing order contingencies, and decreases the budget line items for travel and office expenses, research expenses, export expenses, and promotion expenses. Prior to arriving at this budget, the Committee considered information from various sources, including the Idaho-Eastern Oregon Onion Executive, Research, Export, and Promotion Committees. These subcommittees discussed alternative expenditure levels, based upon the relative value of various research and promotion projects to the Idaho-Eastern Oregon onion industry. The assessment rate of $0.095 per hundredweight of assessable onions was then determined by taking into consideration the estimated level of assessable shipments, other revenue sources, and the Committee's goal of not having to use reserve funds during 2003-2004.

A review of historical information and preliminary information pertaining to the upcoming shipping season indicates that the producer price for the 2003-2004 season could be about $5.00 per hundredweight. Therefore, the estimated assessment revenue for the 2003-2004 fiscal period as a percentage of total producer revenue could be about 1.9 percent.

This rule increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meetings were widely publicized throughout the Idaho-Eastern Oregon onion industry and all interested persons were invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, the April 3, and the June 12, 2003, meetings were open to the public and all entities, both large and small, were able to express views on this issue.

This rule imposes no additional reporting or recordkeeping requirements on either small or large Idaho-Eastern Oregon onion 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 proposed rule concerning this action was published in the Federal Register on July 9, 2003 (68 FR 40815). A copy of the rule was provided to Committee staff, who in turn made it available to onion producers, handlers, and other interested persons. Finally, the rule was made available through the Internet by the Office of the Federal Register and USDA. A 15-day comment period ending July 24, 2003, was provided to allow interested persons to respond to the proposal. No comments were received.

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

After consideration of all relevant 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 that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because the 2003-2004 fiscal period began on July 1, 2003, and the order requires that the rate of assessment for each fiscal period apply to all assessable onions handled during such fiscal period. In addition, the Committee needs sufficient funds to pay its expenses which are incurred on a continuous basis. Further, handlers are aware of this action which was recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years. Also, a 15-day comment period was provided for in the proposed rule and no comments were received.

The Department of Energy (DOE) today revises and consolidates its debt collection regulations that are codified at 10 CFR parts 1015 and 1018. The principal purpose of this rulemaking is to conform DOE's regulations to the government-wide debt collection regulations that were published by the Treasury and Justice Departments (65 FR 70390, November 22, 2000). Consistent with that purpose, today's revised regulations largely track the wording of the government-wide regulations. Any significant differences are discussed below. The Secretary of Energy has approved the revised regulations for application to all divisions of DOE including the National Nuclear Security Administration.

More specifically, this rulemaking is intended:

(a) To reflect changes to Federal debt collection procedures made by the Debt Collection Improvement Act of 1996 (DCIA), Public Law 104-134, 110 Stat. 1321, 1358 (April 26, 1996) as part of the Omnibus Consolidated Rescissions and Appropriations Act of 1996; and the publication of the revised Federal Claims Collection Standards (FCCS) under new chapter IX, Title 31, Code of Federal Regulations (65 FR 70390, November 22, 2000) by the Department of the Treasury (Treasury) and the Department of Justice (DOJ).

(b) To reflect the detailed guidance issued by Treasury and codified at 31 CFR part 285, Debt Collection Authorities under the DCIA. See, e.g., Offset of Tax Refund Payments to Collect Past-Due, Legally Enforceable Non-Tax Debt (63 FR 46140, Aug. 28, 1998); Offset of Federal Benefit Payments to Collect Past-Due, Legally Enforceable Non-Tax Debt (63 FR 71204, Dec. 23, 1998); Salary Offset (63 FR 23354, Apr. 28, 1998); Administrative Wage Garnishment (65 FR 51867, Oct. 11, 2001); Transfer of Debts to Treasury for Collection (64 FR 22906, Apr. 28, 1999); Barring Delinquent Debtors From Obtaining Federal Loans or Loan Insurance or Guarantees (63 FR 67754, Dec. 8, 1998).

(c) To incorporate 10 CFR part 1018, Referral of Debts to IRS for Tax Refund Offset, into 10 CFR part 1015, Collection of Claims Owed the United States.

Revised 10 CFR part 1015 includes the following major changes from DOE's existing regulations:

(1) The content of 10 CFR part 1018, Referral of Debts to IRS for Tax Refund Offset, was merged into 10 CFR part 1015.

(2) The revised 10 CFR part 1015 reflects the elimination of the Comptroller General's role in Federal debt collection.

(3) The revised 10 CFR part 1015 reflects the requirement that DOE use government-wide debt collection contracts (with certain exceptions) for referrals to private collection contractors.

(4) The revised 10 CFR part 1015 contains a new requirement that DOE and debtors exchange mutual releases of non-tax liabilities in all appropriate instances when a claim is compromised.

(5) The revised 10 CFR part 1015 reflects the increase in the principal claim amount from up to $20,000 to up to $100,000, or such other amount as the Attorney General may direct, that DOE is authorized to compromise or to suspend or terminate collection activity thereon, without concurrence by the DOJ. In addition, the minimum amount of a claim that may be referred to the DOJ is increased from $600 to $2,500, or such other amount as the Attorney General may direct. The circumstances under which the DOJ will litigate when the claim amount does not meet the minimum threshold have not been changed.

(6) The revised 10 CFR part 1015 reflects several new debt collection procedures under the DCIA, including, but not limited to:

(a) The Treasury Regulations provide that agencies shall set forth in their regulations the circumstances under which interest and related charges will not be imposed for periods during which collection activity has been suspended pending agency review. The revised 10 CFR 1015.212(h) provides that when a debtor requests a waiver or review of the debt, DOE will continue to accrue interest, penalties and administrative costs during the period collection activity is suspended. Upon completion of DOE's review, interest, penalties and administrative costs related to the portion of the debt found to be without merit will be waived;

(b) Transfer or referral of delinquent debt to Treasury or Treasury-designated debt collection centers for collection, known as “cross-servicing'';

(c) Mandatory credit bureau reporting, and;

(d) Mandatory prohibition against extending Federal financial assistance in the form of a loan or loan guarantee to delinquent debtors.

(7) The revised 10 CFR part 1015 requires one demand letter before taking appropriate collection actions. Previously DOE required three letters before taking further collection action.

(8) A section on cost analysis has been added to 10 CFR 1015.212, Interest, penalties and administrative costs. This section ensures that the most cost effective alternative collection techniques are used with respect to the extensiveness of collection efforts, the evaluation of offers of compromise, and the establishment of minimum debt amounts below which collection efforts need not be taken.

(9) A new § 1015.207, Suspension or revocation of eligibility for loans and loan guarantees, licenses, permits, or privileges, has been added.

DOE is publishing this final rule without prior proposal because we view this as a noncontroversial amendment and anticipate no significant adverse comment. This rulemaking merely conforms DOE's regulations on debt collection to Treasury and DOJ standards and to procedures required by statute. However, in the “Proposed Rules” section of today's Federal Register, we are publishing a separate document that will serve as the proposal to amend 10 CFR part 1015 if significant adverse comment is filed. This rule will be effective on November 12, 2003 without further notice unless we receive significant adverse comment by September 15, 2003. If DOE receives such an adverse comment on one or more distinct amendments, paragraphs, or sections of this direct final rule, DOE will publish a timely withdrawal in the Federal Register indicating which provisions will become effective and which provisions are being withdrawn due to adverse comment. Any distinct amendment, paragraph, or section of today's direct final rule for which we do not receive significant adverse comment will become effective on the date set forth in this direct final rule, notwithstanding any adverse comment on any other distinct amendment, paragraph, or section of today's rule. If significant adverse comment is received, we will address all public comments in a subsequent final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

Today's regulatory action has been determined not to be “a significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” (58 FR 51735, October 4, 1993). Accordingly, this action was not subject to review under that Executive Order by the Office of Information and Regulatory Affairs of OMB.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. This rule amends 10 CFR part 1015 to incorporate revisions to the Federal Claims Collection Standards issued by Treasury and DOJ and to reflect changes to Federal debt collection procedures made by the Debt Collection Improvement Act of 1996 and the General Accounting Office Act of 1996. Most of the rule provisions relate to agency management and procedure or are stated as policy statements. This rule contains few, if any, new substantive requirements that directly apply to members of the public. Any incremental economic impact of this rule on small entities would be small. For these reasons, DOE certifies that this direct final rule will not have a significant economic impact on a substantial number of small entities. Accordingly, DOE did not prepare a regulatory flexibility analysis for the rule.

No new collection of information is imposed by this direct final rule. Accordingly, no clearance by OMB is required under the Paperwork Reduction Act (44 U.S.C. 3501, et seq.).

DOE has concluded that promulgation of this rule falls into a class of actions that would not individually or cumulatively have a significant impact on the human environment, as determined by DOE's regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.). Specifically, this rule deals only with agency procedures and, therefore, is covered under the Categorical Exclusion in paragraph A6 to subpart D, 10 CFR part 1021. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined today's rule and has determined that it does not preempt State law and does 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. No further action is required by Executive Order 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” (61 FR 4729, February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written assessment of the effects of any Federal mandate in a proposed or final rule that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million in any one year. The Act also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and tribal governments on a proposed “significant intergovernmental mandate,” and it requires an agency to develop a plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirement that might significantly or uniquely affect small governments. The rule published today does not contain any Federal mandate; therefore, these requirements do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule or policy that may affect family well-being. This rulemaking is not subject to a requirement to propose for public comment, and section 654 therefore does not apply.

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guideline issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's notice under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of today's rule prior to its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).

In Title 14 of the Code of Federal Regulations, Parts 1 to 59, revised as of January 1, 2003, in § 15.3, on page 78, add paragraph (c) to read as follows:

Transport Canada, which is the airworthiness authority for Canada, recently notified the FAA that an unsafe condition may exist on PWC PW206A and PW206E turboshaft engines. Transport Canada advises that there have been several reports of PW206-powered helicopters where axial shifting of compressor turbine blades and power turbine blades resulted in heavy blade rubs, causing an increase in internal engine temperature, triggering in-flight engine fire warnings and subsequent emergency landings.

We have reviewed and approved the technical contents of the following Pratt & Whitney Canada service documents:

• Alert Service Bulletin (ASB) No. PW200-72-A28242, Revision 1, dated October 2, 2002, that describes procedures for borescope inspecting of compressor turbine blades and power turbine blades for axial shift within the disks.

• Service Bulletin (SB) No. PW200-72-28069, Revision 5, dated February 10, 2003, that describes procedures for replacing compressor turbine blade retaining rivets, the No. 3 bearing rotor air seal, and the No. 4 bearing front rotor air seal.

• SB No. PW200-72-28239, Revision 2, dated February 10, 2003, that describes procedures for replacing power turbine blade retaining rivets.

Transport Canada classified these service bulletins as mandatory and issued AD CF-2003-06, dated February 4, 2003, in order to assure the airworthiness of these PWC PW206A and PW206E turboshaft engines in Canada.

This engine model is manufactured in Canada and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Under this bilateral airworthiness agreement, Transport Canada has kept the FAA informed of the situation described above. We have examined the findings of Transport Canada, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

The unsafe condition described previously is likely to exist or develop on other PWC PW206A and PW206E turboshaft engines of the same type design. We are issuing this AD to prevent turbine blade axial shift, leading to high levels of vibration, loss of engine torque, in-flight engine shutdown, and possible uncontained engine failure. This AD requires:

• Initial and repetitive borescope inspections of compressor turbine blades and power turbine blades for blade axial shift within the turbine disks, and

• Replacement of blade retaining rivets, the No. 3 bearing rotor air seal, and the No. 4 bearing front rotor air seal as mandatory terminating action for the repetitive borescope inspections.

You must use the service information described previously to perform the actions required by this AD.

Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

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.

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-25-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 verbally, 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.faa.gov/language and 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-25-AD” in your request.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by revising AD 94-01-10, amendment 39-8792 (59 FR 4558, February 1, 1994), which is applicable to certain Boeing Model 757 series airplanes, was published in the Federal Register on October 8, 2002 (67 FR 62654). The action proposed to continue to require inspections, adjustments, and functional checks of the engine thrust reverser system; modification of the engine thrust reverser directional control valve; and installation and periodic functional tests of an additional thrust reverser locking feature. The action also proposed to reduce the applicability of the existing AD.

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

Two commenters support the AD, as proposed.

Two commenters request that the proposed AD be issued to correct rather than revise AD 94-01-01. The commenters suggest that a correction in this case would be more appropriate and would minimize record keeping by the operators. One of the commenters states that, “[I]f a new AD number or a revision to the existing AD is issued, [the operator] will be required to revise all of [the operator's] AD implementation and record keeping documentation at a significant cost to [the] airline. If a correction to the original AD is issued, no document changes will be necessary.”

The FAA disagrees with the commenters' characterization of the AD revision process. First, a correction to an AD is used primarily for nonsubstantive changes including clarification of ambiguous language in the existing AD. A correction to an AD does not receive a new AD number. A revision to an AD is used to make changes such as reducing the applicability for this AD. A revision of an AD is usually less complicated for operators to track because the compliance documentation need include only the AD number regardless of the revision number. This final rule will be issued as a revision to the existing AD, as proposed.

One commenter questions whether an aircraft could be dispatched with the thrust reversers active after failing the thrust reverser sync lock integrity test but passing subsequent testing in accordance with Boeing Service Bulletin 757-78-0025 or Airplane Maintenance Manual 78-31-00/501.

Paragraph (e) of AD 94-01-10 requires that any discrepancy found during any test required by that AD be corrected before further flight in accordance with the Boeing 757 Maintenance Manual. Therefore, any failures experienced during the integrity test must be appropriately addressed and resolved prior to dispatch of the airplane with the thrust reverser system active. No change to the final rule is necessary regarding this issue.

One commenter requests the addition of a step in the technical procedures that returns the airplane to its normal operational configuration after the required testing (Section 2.C. (“Put the Airplane Back to Its Usual Condition”) of the “Thrust Reverser Sync Lock Integrity Test”). This step was not included in AD 94-01-10. Specifically, the additional step involves returning a maintenance power switch (which was configured to “Alternate” before testing) to the “Normal” position after testing.

The FAA agrees with the request, for the reasons stated by the commenter. Section 2.C., set forth in paragraph (e) of this final rule, has been revised accordingly to add new step (5). The FAA has determined that this minor, axiomatic change does not expand the scope of the proposed AD.

One commenter requests that the proposed AD be revised to provide for terminating action for all actions of the AD. The commenter suggests limiting the applicability of paragraphs (a), (b), and (d) of the proposed AD to airplanes having line numbers prior to 442 (associated design changes were incorporated in production beginning with line number 442) and revising paragraphs (c) and (e) of the proposed AD to require operators to include the inspection requirements as part of their maintenance plan in the form of certification maintenance requirements (CMRs).

The FAA concurs with the request to revise the applicability of (a), (b), and (d). Those paragraphs have been revised accordingly.

However, as explained in the proposed AD, the FAA has approved CMRs as alternative methods of compliance (AMOCs) with the inspection requirements of paragraphs (c) and (e) of AD 94-01-10 for Model 757-300 series airplanes. In addition, the FAA has approved the inspection requirements in the Boeing Maintenance Planning Document as an AMOC for the inspections required by the AD for Model 757-200 series airplanes. The intent of CMRs is not to terminate inspection requirements in ADs but to define specific repetitive inspections or component replacements for equipment, systems, and installations as a result of safety analyses approved by the FAA before an airplane type certificate is issued. Therefore, the FAA does not concur with this request to terminate the actions of paragraphs (c) and (e) of this AD. No change to the final rule is necessary in this regard.

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 airworthiness directives 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.

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 previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

Since this AD merely removes airplanes from the applicability of the existing AD, it adds no additional costs, and requires no additional work to be performed by affected operators. The current costs associated with this amendment are reiterated below for the convenience of affected operators:

The FAA estimates that 270 airplanes of U.S. registry will be affected by this AD.

It takes approximately 624 work hours per airplane to accomplish the modification required by AD 94-01-10, at an average labor rate of $60 per work hour. Required parts will be supplied by the manufacturer at no cost to operators. Based on these figures, the cost impact of the modification is estimated to be $37,440 per airplane.

It takes approximately 1 work hour per airplane to accomplish the functional test required by AD 94-01-10, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the tests is estimated to be $60 per airplane, per test.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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.

In Title 17 of the Code of Federal Regulations, Parts 1 to 199, revised as of January 1, 2003, in § 18.04, on page 314, remove paragraph (d).

The background information on the IRR program, the relative need formula, the FHWA Price Trends Report, and the TEA-21 Negotiated Rulemaking process is detailed in the Federal Register notice dated February 15, 2000 (65 FR 7431).

We are publishing this final rule only for the distribution of the remaining 25 percent of fiscal year 2003 IRR Program funds. This rule sets no precedent for the final rule to be published as required by section 1115 of TEA-21. On June 5, 2003, we published a temporary rule distributing 75 percent of fiscal year 2003 IRR funds (68 FR 33625).

Under 5 U.S.C. 553(b)(3)(B), notice and public procedure on the first partial distribution under this rule are impracticable, unnecessary, and contrary to the public interest. In addition, we have good cause for making this final rule for distribution of the remaining 25 percent of fiscal year 2003 IRR Program funds effective immediately under 5 U.S.C. 553(d)(3).

Notice and public procedure would be impracticable because of the urgent need to distribute the remaining 25 percent of fiscal year 2003 IRR Program funds. Approximately 1,300 road and bridge construction projects are at various phases that require additional funds this fiscal year to continue or complete work, including 220 deficient bridges and the construction of approximately 7,300 miles of roads. Fiscal year 2003 IRR Program funds will be used to design, plan, and construct improvements (and, in some cases, to reconstruct bridges). Without this immediate final distribution of fiscal year 2003 IRR Program funds, tribal and BIA IRR projects will be forced to cease activity, placing projects and jobs in jeopardy. Waiting for notice and comment on this final distribution of fiscal year 2003 IRR Program funds would be contrary to the public interest. In some of the BIA regions, approximately 80 percent of the roads in the IRR system (and the majority of the bridges) are designated school bus routes. Roads are essential access to schools, jobs, and medical services. Many of the priority tribal roads are also emergency evacuation routes and represent the only access to tribal lands. Approximately 40 percent of the road miles in Indian country are unimproved roads. Deficient bridges and roads are health and safety hazards. Partially constructed road and bridge projects and deficient bridges and roads jeopardize the health and safety of the traveling public. Further, over 600 projects currently in progress are directly associated with environmental protection and preservation of historic and cultural properties. This rule is going into effect immediately because of the urgent need for distributing the final funds available under the fiscal year 2003 IRR Program to continue these construction projects.

You can find this information in the Federal Register notice dated June 5, 2003 (68 FR 33625).

In the 30-day comment period after publication of the temporary rule distributing 75 percent of fiscal year 2003 IRR Program funds, we received comments from 24 commenters. One commentor opposed the inclusion of administrative capacity building (ACB) funds in the remaining distribution of fiscal year 2003 IRR Program funds. Twenty-three commenters supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds for various reasons.

Comment: One commentor opposed the inclusion of ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds because IRR Program funds are construction funds for road and bridge projects; inclusion of ACB funds lessens the amount available for construction; and tribes have not expended all of IRR ACB funds distributed in fiscal years 2001 and 2002.

Response: This rule does not include ACB funds in fiscal year 2003. This rule sets no precedent for the final rule to be published as required by section 1115 of the Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-178, 112 Stat. 154.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds to assist tribes who are not current on their IRR inventories and to develop long-range transportation plans.

Response: Both inventory updates and long-range transportation planning activities are eligible activities within the available funding under the IRR authorized funds. The interim formula for fiscal year 2003 will provide tribes with the critical resources to develop inventory data, long-range transportation plans, transportation improvement programs, and other information necessary to distribute funds under the Tribal Transportation Allocation Methodology in the final rule to be published as required by section 1115 of TEA-21.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds to level the playing field for small tribes. The commentor requested consideration of a special set-aside of at least 5 percent of IRR program funds for very small tribes.

Response: Funding for ACB in fiscal years 2001 and 2002 was included to provide the opportunities for tribes to apply for a specific amount of funds to perform transportation related activities. The Secretary distributed funds in those years according to the TEA-21 Negotiated Rulemaking Committee's recommendation. Each federally recognized tribe had the opportunity to apply for $35,000 for ACB for transportation related activities. A special set-aside of any amount of IRR program funds within this distribution would need to be negotiated within the amounts available to each region of the BIA.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds to assist smaller villages in updating their road inventories and allow villages to participate in the development of their economies.

Response: Updating inventories is an eligible activity within the available funding under the IRR authorized funds. The interim formula for the current fiscal year will provide tribes with the critical resources to develop inventory data, long-range transportation plans, transportation improvement programs, and other information necessary to distribute funds under a new funding formula to be put in place for fiscal year 2004.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds and including ACB funds in future fiscal year distributions. The commentor also requested adequate consultation, annual disclosure of takedowns and national breakdown of each tribal government's allocation of IRR Program funds.

Response: Providing funds for ACB in fiscal years 2001 and 2002 as part of the distribution of funds was specific to those years based on available funds. ACB funds for those years were expressly not to be considered precedential in future distributions as stated in the funding rules published for fiscal years 2001 and 2002. Negotiated rulemaking under Title 5, U.S.C., allowed for the public and tribes to participate in the development of recommendation of a new formula for the IRR Program and recommendations for interim funding distribution. The Secretary publishes on an annual basis a breakdown of formula percentages as computed by the relative need formula. This breakdown includes the specific amounts of funds available to the BIA regions by tribe and the statutory takedowns for the IRR program.

Comment: Eleven commenters support including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds and do not support BIA's proposal to distribute the remaining 25 percent of fiscal year 2003 IRR Program funds. The commenters state that the Federal Register notice states that BIA will distribute fiscal year 2003 IRR Program funds in the same manner as in fiscal year 2000, but that BIA is not proposing including up to $50,000 per tribe for special planning funds as it did in fiscal year 2000. The commenters also disagree with the Federal Register notice statement that BIA conducted consultation and coordination with tribal governments for distribution of fiscal year 2003 IRR Program funds because negotiated rulemaking is not consultation. In addition, one commentor also noted that the funding formula is deficient and does not allow for different modes of transportation which decreases the available funding.

Response: The fiscal year 2003 distribution, as well as the distribution for fiscal years 2001 and 2002, is consistent with the method of distribution of IRR Program funds in the Federal Register on February 15, 2000. In fiscal year 2000, the Secretary distributed IRR Program funds under the relative need formula identified in 23 U.S.C. 204 (65 FR 7431, Feb. 15, 2000) and special funds provided as part of a request for projects and distributed to tribal governments and BIA regional offices for transportation planning and bridge designs (65 FR 12026, March 7, 2000). Funding for the $18.3 million fiscal year 2000 IRR funds was a separate Federal Register publication and not part of the regular IRR Program funds distribution. Negotiated rulemaking under Title 5, U.S.C., provides consultation allowed for the public and tribes to participate in the development of recommendation of a new formula for the IRR Program and recommendations for interim funding distribution. However, for fiscal year 2003, the tribal caucus of the negotiated rulemaking committee was unable to make a consensus recommendation to the full Committee for distributing fiscal year 2003 IRR Program funds. However, the tribal caucus recommended that the Secretary identify fiscal year sources other than IRR Program funds to include ACB funds in the distribution for fiscal year 2003. Without a tribal caucus consensus on how to distribute fiscal year 2003 IRR Program funds, the Committee, under its protocols, could not make a recommendation to the Secretary as to how to distribute fiscal year 2003 IRR Program funds. Without a recommendation from the Committee, the Secretary must determine how to distribute fiscal year 2003 IRR Program funds. The Secretary could not identify another funding source for ACB.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds. The commentor also stated that the relative need formula the 1993 version is no longer valid because BIA's distribution of IRR program funds in fiscal years 2000, 2001, 2002, superceded any previous formula. The commentor also disagreed that BIA is using the same distribution method in fiscal year 2003 as it used in fiscal year 2000, 2001 and 2002, since BIA is not including ACB in the fiscal year 2003 distribution of IRR Program funds.

Response: The relative need formula as used in fiscal years 2000, 2001, and 2002 distribution of IRR Program funds could only be used by rule because of statutory provisions in Title 23, U.S.C. Therefore in each of these years the Secretary published a temporary rule applicable only to the current year. The inclusion of ACB in fiscal years 2001 and 2002 is a direct result of the recommendation of the TEA-21 Negotiated Rulemaking Committee.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds because ACB is an essential source of funding. The commentor also requested the continuation of $35,000 per year per tribe for ACB, or a minimum allocation of $48,000 per year per tribe to maintain a transportation department compliant with current BIA requirements.

Response: The tribal caucus could not agree on the ACB and could not make a recommendation to the full committee, and could not agree on the ACB and therefore it was not included in the fiscal year 2003 distribution of IRR Program funds.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds. In addition, the commentor requests that BIA identify other sources of funds for ACB.

Response: BIA could not identify any new sources of funds to support the continued implementation of ACB.

Comment: Four commenters supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds because under the new distribution formula, that will be effective in fiscal year 2004, inventory updates are necessary and ACB will be required for the updates. In addition, the commenters state that BIA cannot distribute fiscal year 2003 funds without ACB and without further action of the TEA-21 Negotiated Rulemaking Committee. The commenters also state that under TEA-21, after 1999, BIA's authority to distribute IRR Program funds ended. The commenters further indicate that BIA should identify alternate sources of funding for ACB.

Response: The interim formula for the current fiscal year will provide tribes with the critical resources to develop inventory data, long-range transportation plans, transportation improvement programs, and other information necessary to distribute funds under a new funding formula to be put in place for fiscal year 2004. The Committee could not make a recommendation to the Secretary because no consensus was reached regarding the use of ACB. There are no additional sources of funding available to the Secretary for ACB. In addition, the proposed and final rule the TEA-21 Negotiated Rulemaking Committee developed has no provision for ACB.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds because BIA is not authorized to distribute the remaining 25 percent without including ACB funds without a recommendation from the Committee. In addition, the commentor asserts that BIA should have included reference to the special funds for planning and bridge design distributed in fiscal year 2000. The commentor also disagrees with the Federal Register notice statement that BIA conducted consultation and coordination with tribal governments for distribution of fiscal year 2003 IRR Program funds. The commentor asserts that because only the tribal caucus of the Negotiated Rulemaking Committee discussed the fiscal year 2003 distribution of IRR Program funds and the tribal co-chairs were not authorized to separately agree to any distribution method in fiscal year 2003, the Secretary did not consult with tribal governments. The commentor also noted that if ACB funds are included in the distribution, there would be no object to a reduction to ACB proportionate to the reduction in IRR Program funds, or, alternatively, to return the remaining funds to FHWA for distribution in fiscal year 2004 under the new Tribal Transportation Allocation Methodology that will be part of the final rule for Indian Reservation Roads.

Response: In fiscal year 2000, the Secretary distributed IRR Program funds as part of the relative need formula as identified in 23 U.S.C. 202 (65 FR 7431, Feb. 15, 2000) and special funds provided as part of a request for projects and distributed to tribal governments and BIA regional offices for transportation planning and bridge designs (65 FR 12026, March 7, 2000). This fiscal year 2003 distribution, as well as the distribution for fiscal years 2001 and 2002, is consistent with the distribution of IRR Program funds as published in the Federal Register on February 15, 2000. Funding for the $18.3 million Fiscal Year 2000 Indian Reservation Roads Funds was a separate Federal Register publication and not part of the regular IRR Program funds distribution. The Federal Register published on March 7, 2000 states: What Are the Additional Fiscal year 2000 IRR Funds? These additional IRR Program funds are provided as part of the Department of Transportation and Related Agencies Appropriations Act for fiscal year 2000, Public Law 106-69. These funds are not part of other funding as authorized in 23 U.S.C. 202 or as distributed under 25 CFR 170.4b (65 FR 7431, Feb. 15, 2000).

The tribal caucus of the negotiated rulemaking committee was unable to make a consensus recommendation to the full Committee on distributing fiscal year 2003 IRR Program funds. However, the tribal caucus recommended that the Secretary identify sources other than IRR Program funds to include ACB funds in the distribution for fiscal year 2003. Without a tribal caucus consensus on how to distribute fiscal year 2003 IRR Program funds, the Committee, under its protocols, could not make a recommendation to the Secretary as to how to distribute fiscal year 2003 IRR Program funds. Without a recommendation from the Committee, the Secretary must determine how to distribute fiscal year 2003 IRR Program funds. The Secretary could not identify another funding source for ACB.

Upon publication of this rule, the Secretary will distribute the remaining 25 percent (approximately $50 million) of fiscal year 2003 IRR Program funds based on the current relative need formula used in fiscal years 2000, 2001, 2002 and in the first distribution in fiscal year 2003. We are using the latest indices from the FHWA Price Trends Report with appropriate modifications for non-reporting states in the relative need formula distribution process.

Under the criteria in Executive Order 12866, this rule is not an economically significant regulatory action because it will not have an annual effect of more than $100 million on the economy. The total amount available for distribution of fiscal year 2003 IRR Program funds is approximately $208 million and we are distributing approximately $50 million under this rule. Congress has already appropriated these funds and FHWA has already allocated them to BIA. The cost to the government of distributing the IRR Program funds, especially under the relative need formula with which the tribal governments and tribal organizations and the BIA are already familiar, is negligible. The distribution of fiscal year 2003 IRR Program funds does not require tribal governments and tribal organizations to expend any of their own funds. This rule is consistent with the policies and practices that currently guide our distribution of IRR Program funds. This rule continues to adopt the relative need formula that we have used since 1993, adjusting the FHWA Price Trends Report indices for states that do not have current data reports. This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another Federal agency. The FHWA has transferred the IRR Program funds to us and fully expects the BIA to distribute the funds according to a funding formula approved by the Secretary. This rule does not alter the budgetary effects on any tribes from any previous or any future distribution of IRR Program funds and does not alter entitlement, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule does not raise novel legal or policy issues. It is based on the relative need formula in use since 1993. We are changing determination of relative need only by appropriately modifying the FHWA Price Trend Report indices for states that did not report data for the FHWA Price Trends Report, just as we did for the second partial distribution of fiscal years 2000, 2001 and 2002 IRR Program funds and the first partial distribution of fiscal year 2003 IRR funds. Approximately 1,300 road and bridge construction projects are at various phases that depend on this fiscal year's IRR Program funds. Leaving these ongoing projects unfunded will create undue hardship on tribes and tribal members. Lack of funding would also pose safety threats by leaving partially constructed road and bridge projects to jeopardize the health and safety of the traveling public. Thus, the benefits of this rule far outweigh the costs. This rule is consistent with the policies and practices that currently guide our distribution of IRR Program funds. This rule continues to adopt the relative need formula that we have used since 1993.

A Regulatory Flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is not required for this rule because it applies only to tribal governments, not state and local governments.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act, because it does not have an annual effect on the economy of $100 million or more. We are distributing approximately $50 million under this rule. Congress has already appropriated these funds and FHWA has already allocated them to BIA. The cost to the government of distributing the IRR Program funds, especially under the relative need formula with which tribal governments, tribal organizations, and the BIA are already familiar, is negligible. The distribution of the IRR Program funds does not require tribal governments and tribal organizations to expend any of their own funds. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Actions under this rule will distribute Federal funds to Indian tribal governments and tribal organizations for transportation planning, road and bridge construction, and road improvements. This rule 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. In fact, actions under this rule will provide a beneficial effect on employment through funding for construction jobs.

Under the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.), this rule will not significantly or uniquely affect small governments, or the private sector. A Small Government Agency Plan is not required. This rule will not produce a federal mandate that may result in an expenditure by State, local, or tribal governments of $100 million or greater in any year. The effect of this rule is to immediately provide the remaining 25 percent of fiscal year 2003 IRR Program funds to tribal governments for ongoing IRR activities and construction projects.

With respect to Executive Order 12630, the rule does not have significant takings implications since it involves no transfer of title to any property. A takings implication assessment is not required.

With respect to Executive Order 13132, the rule does not have significant Federalism implications to warrant the preparation of a Federalism Assessment. This rule should not affect the relationship between state governments and the Federal Government because this rule concerns administration of a fund dedicated to IRR projects on or near Indian reservations that has no effect on Federal funding of state roads. Therefore, the rule has no Federalism effects within the meaning of Executive Order 13132.

This rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988. This rule contains no drafting errors or ambiguity and is clearly written to minimize litigation, provide clear standards, simplify procedures, and reduce burden. This rule does not preempt any statute. We are still pursuing the TEA-21 mandated negotiated rulemaking process. The rule is not retroactive with respect to any funding from any previous fiscal year (or prospective to funding from any future fiscal year), but applies only to the remaining 25 percent of fiscal year 2003 IRR Program funding.

The Paperwork Reduction Act does not apply because this rule does not impose record keeping or information collection requirements or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 501 et seq. We already have all of the necessary information to implement this rule.

This rule is categorically excluded from the preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., because its environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and the road projects funded as a result of this rule will be subject later to the National Environmental Policy Act process, either collectively or case-by-case. Further, no extraordinary circumstances exist to require preparation of an environmental assessment or environmental impact statement.

Under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments of November 6, 2000 (65 FR 218), we have consulted with tribal representatives throughout the negotiated rulemaking process. Distributing IRR Program funds under this rule has tribal implications in that transportation planning and projects rely on this funding. Distributing funds under this rule does not impose direct compliance costs on Indian tribal governments and does not preempt tribal law. We have evaluated any potential effects on federally recognized Indian tribes and have determined that there are no potential adverse effects. We have determined that this rule preserves the integrity and consistency of the relative need formula process we have used since 1993 to distribute IRR Program funds.

The TEA-21 Negotiated Rulemaking Committee tribal representatives agreed that we use the funding method for distributing IRR Program funds we have used since 1993, for fiscal years 2000, 2001, and 2002. However, the tribal representatives disagreed about reserving IRR Program funds (approximately $20 million from the remaining $50 million) to distribute $35,000 to each federally recognized tribe for ACB for fiscal year 2003 because it could not identify a source for ACB funds. We reserved ACB funds in fiscal years 2001 and 2002 and distributed $35,000 to each federally recognized tribe in each year. For fiscal year 2003, however, since there is no consensus to provide ACB funds, the method of formula distribution of all available funds will reflect the same distribution as in fiscal years 2000, 2001, and 2002 without reserving funds for ACB.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B) the Coast Guard finds that good cause exists for not publishing an NPRM. The event will take place on August 26 and 27, 2003. Publishing an NPRM would be contrary to the public interest, since immediate action is needed to ensure the safety of spectator craft and other vessels transiting the event area in the Atlantic Ocean adjacent to Atlantic City, New Jersey. For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. However, advance notifications will be made to affected users of the waterway via marine information broadcasts and area newspapers.

On August 26 and 27, 2003, the Borgata Hotel will sponsor the “Atlantic City Salutes 100th Anniversary of Powered Flight”. The event will consist of high performance jet aircraft performing aerial maneuvers over the waters of the Atlantic Ocean adjacent to Atlantic City, New Jersey. A fleet of spectator vessels is expected to gather nearby to view the aerial demonstration. Due to the need for vessel control during the event, vessel traffic will be temporarily restricted to provide for the safety of spectators and transiting vessels.

The Coast Guard is establishing temporary special local regulations on specified waters of the Atlantic Ocean adjacent to Atlantic City, New Jersey. The regulated area includes a section of the Atlantic Ocean approximately 2.5 miles long, extending approximately 900 yards out from the shoreline. The temporary special local regulations will be enforced from 10:30 a.m. to 3 p.m. on August 26 and 27, 2003, and will restrict general navigation in the regulated area during the aerial demonstration. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area during the enforcement period.

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

We expect the economic impact of this temporary final rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

Although this regulation prevents traffic from transiting a portion of the Atlantic Ocean adjacent to Atlantic City, New Jersey during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts and area newspapers so mariners can adjust their plans accordingly.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in the effected portion of the Atlantic Ocean during the event.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only a short period, from 10:30 a.m. to 3 p.m. on August 26 and 27, 2003. Vessels desiring to transit the event area will be able to navigate safely around the regulated area. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this temporary rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the address listed under ADDRESSES.

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine parade permit are specifically excluded from further analysis and documentation under those sections. Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Final dates and other logistical details for the event were not provided to the Coast Guard in time to draft and publish an NPRM or a temporary final rule 30 days prior to the event, as the event would occur before the rulemaking process was complete. Any delay in implementing this rule would be contrary to the public interest since immediate action is necessary to protect persons, vessels and others in the maritime community from the hazards associated with the offloading operations.

For the same reasons stated above, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

The United States Navy will conduct military outload operations from Long Beach Pier T126. These operations involve the offloading of equipment onboard a Military Sealift Command (MSC) vessel for the furtherance of our national security. These offload evolutions are often directed at a moments notice. In an effort to protect the offload evolution and provide adequate notice to the public, the Captain of the Port of Los Angeles-Long Beach proposes to establish a temporary security zone around the Long Beach Pier T126 which will be actively enforced when the military offload evolution occurs.

As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended The Ports and Waterways Safety Act (PWSA) to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. 33 U.S.C. 1226. The terrorist acts against the United States on September 11, 2001, have increased the need for safety and security measures on U.S. ports and waterways.

In response to these terrorist acts, and in order to prevent similar occurrences, the Coast Guard proposes to establish a temporary security zone in the navigable waters of the United States adjacent to the Long Beach Pier T126. The action proposed under this rule is necessary to protect the U.S. Naval vessel(s) and their crew(s) during these military outload evolutions at Long Beach Pier T126 from sabotage, or other subversive acts, accidents, criminal actions or other causes of a similar nature.

Due to National Security interests, the implementation of this security zone is necessary for the protection of the United States and its people. The size of the zone is the minimum necessary to provide adequate protection for the U.S. Naval vessel(s), their crew(s), adjoining areas, and the public.

The military outload evolutions involve the transfer of military equipment from a MSC vessel to a shore side staging area. The security zone will accompany other security measures implemented at Long Beach Pier T126 waterfront facility.

Due to complex planning, national security reasons, and coordination with all military schedules, information regarding the precise location and date of the military outload will not be circulated, however, prior to the outload evolution, the public will be notified that the security zone is in effect and will be enforced actively. The notice of active enforcement of the security zone will be announced via broadcast notice to mariners, local notice to mariners, or by any other means that is deemed appropriate.

This security zone is established pursuant to the authority of the Magnuson Act regulations promulgated by the President under 50 U.S.C. 191, including subparts 6.01 and 6.04 of part 6 of title 33 of the Code of Federal Regulations. Vessels or persons violating this section are subject to he penalties set forth in 50 U.S.C. 192 which include seizure and forfeiture of the vessel, a monetary penalty of not more than $12,500, and imprisonment for not more than 10 years.

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

Although this regulation restricts access to the zone, the effect of this regulation will not be significant because: (i) The zone will encompass only a small portion of the waterway; (ii) vessels will be able to pass safely around the zones; and (iii) vessels may be allowed to enter these zones on a case-by-case basis with permission of the Captain of the Port, or his designated representative.

Most of the entities likely to be affected are pleasure craft engaged in recreational activities and sightseeing. Any hardships experienced by persons or vessels are considered minimal compared to the national interest in protecting the U.S. Naval vessel, their crew, and the public. Accordingly, full regulatory evaluation under the regulatory policies and procedures of the DHS is unnecessary.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. Most of the traffic in this area is recreational traffic and sightseers. The economic impact is minimal by having them gain permission to transit through the zone from the COTP or his representative. The Coast Guard has coordinated with known private business owners in an effort to reduce any substantial impact on business.

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

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

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

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

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

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

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

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

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

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

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation because we are establishing a security zone. A “Categorical Exclusion Determination” and checklist are available in the docket for inspection or copying where indicated under ADDRESSES.

On July 9, 2003, EPA published a Federal Register document granting direct final approval to revisions of the Georgia State Implementation Plan (SIP) which were submitted by the State on July 1, 2002. Included in that submittal were revisions to Georgia's rule 391-3-1-.02(2)(a)(7) “Excess Emissions.” However, the State did not request that this revision be incorporated into the federally approved SIP.

As published, the direct final rule contains an incorrect approval of a revision to the Georgia SIP. This error was published in the first column on page 40788. Unless this error is corrected rule approval would be incorrectly granted. EPA regrets any inconvenience that this incorrect approval has caused.

1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office. EPA has established an official public rulemaking file for this action under KY-200334. The official public file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public rulemaking file does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the contacts listed in the For Further Information Contact section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 9 to 3:30, excluding Federal holidays.

2. Copies of the State submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the State and Local Air Agency. Commonwealth of Kentucky, Division for Air Quality, 803 Schenkel Lane, Frankfort, Kentucky 40601-1403. (502/573-3382). Air Pollution Control District of Jefferson County, 850 Barrett Avenue—Suite 200, Louisville, Kentucky 40204. (502/574-6000)

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

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

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking KY-200334” 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. 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 majumder.joydeb@epa.gov. Please include the text “Public comment on proposed rulemaking KY-200334” 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.

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

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

2. By Mail. Send your comments to: Joydeb Majumder, Air Toxics and Monitoring Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Please include the text “Public comment on proposed rulemaking KY-200334” in the subject line on the first page of your comment.

3. By Hand Delivery or Courier. Deliver your comments to: Joydeb Majumder, Air Toxics and Monitoring Branch, Air, Pesticides and Toxics Management Division 12th floor, U.S. Environmental Protection Agency Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 9 to 3:30, excluding Federal holidays.

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

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

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

Section 111(d) of the CAA requires states to submit plans to control certain pollutants (designated pollutants) at existing facilities (designated facilities) whenever standards of performance have been established under section 111(d) for new sources of the same type, and EPA has established emissions guidelines for such existing sources. A designated pollutant is any pollutant for which no air quality criteria have been issued, and which is not included on a list published under section 108(a) or section 112(b)(1)(A) of the CAA, but emissions of which are subject to a standard of performance for new stationary sources.

The emission guidelines for CISWI units were promulgated in December 2000, and the emission guidelines are codified at 40 CFR part 60, subpart DDDD. Subpart B of 40 CFR part 60 establishes procedures to be followed and requirements to be met in the development and submission of state plans for controlling designated pollutants. Part 62 of the CFR provides the procedural framework for the submission of these plans. When designated facilities are located under the jurisdiction of a state and local, state and local agencies must develop and submit a plan for their respective jurisdictions for the control of designated pollutants. However, 40 CFR 62.06 provides that if there are no existing sources of the designated pollutants in the state and local, the state and local may submit a letter of certification to that effect, or negative declaration, in lieu of a plan. The negative declaration exempts the state and local from the requirements of subpart B for that designated pollutant.

The Commonwealth of Kentucky and Jefferson County, Kentucky have determined that there are no existing sources in the Commonwealth and in the County subject to the CISWI units emission guidelines. Consequently, the Commonwealth of Kentucky and Jefferson County, Kentucky, have submitted letters of negative declaration certifying this fact. EPA is taking final action to approve these negative declarations.

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the state negative declarations should adverse comments be filed. This rule will be effective October 14, 2003 without further notice unless the Agency receives adverse comments by September 15, 2003.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on October 14, 2003 and no further action will be taken on the proposed rule.

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 negative declarations 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 state plan 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 state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a state 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 14, 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).)

We stated in the direct final rule published at 68 FR 35792 (June 17, 2003) that if we received adverse comment on the direct final rule by July 17, 2003, we would publish a timely withdrawal in the Federal Register. We have received adverse comments on the amendments to the following sections: 40 CFR 86.005-17, subsection (h), paragraph (3), and § 86.1806-05, subsection (h), paragraph (3). We received comments from the Engine Manufacturers Association (EMA) that the direct final rule does not extend the allowance to use the heavy-duty communication protocol, or SAE J1939, beyond the 2007 model year for vehicles that are not optionally certified to CARB's 1968.2 OBD II requirements. They commented that the direct final rule requires that 2008 and later model year heavy-duty engines and vehicles under 14,000 lbs. GVWR that are certified to the Federal OBD technical monitoring requirements must use the ISO 15765-4.3 communication protocol. EMA commented that this is not consistent with CARB's requirements, nor is it consistent with the existing communication protocols developed for the unique operational characteristics of heavy-duty vehicles. We will address this adverse comment more fully in a forthcoming final rulemaking based on the concurrent notice of proposed rulemaking published on June 17, 2003 (68 FR 35830).

In addition, EPA received comments from the Alliance of Automobile Manufacturers and the Association of International Automobile Manufacturers requesting clarification of certain aspects of the direct final rule. These comments did not request withdrawal of the rule, and EPA does not consider these comments adverse. We are not withdrawing any sections of the direct final rule based on these comments. As noted above, we will soon issue a final rule based on the concurrent notice of proposed rulemaking and we will address these comments as appropriate at that time.

This final rule will primarily reduce regulatory burdens on industry by incorporating changes into the Hazardous Materials Regulations (HMR) based on RSPA's own initiatives and petitions for rulemaking submitted in accordance with 49 CFR 106.95. In a continuing effort to review the HMR for necessary revisions, RSPA (“we” and “us”) is eliminating, revising, clarifying and relaxing regulatory requirements. On January 21, 2003, RSPA published a Notice of Proposed Rulemaking (NPRM) under Docket RSPA-02-13773 (HM-218B; 68 FR 2734). The NPRM contained information concerning each proposal and invited public comment. Readers should refer to the NPRM for additional background discussion.

RSPA received eleven comments in response to the NPRM. These comments were submitted by representatives of trade associations, such as the American Chemical Council, the American Pyrotechnics Association, and the Chlorine Institute; hazardous materials consulting firms; chemical manufacturers; and carriers of hazardous materials. Most commenters expressed support for various proposals, but several commenters raised concerns about certain provisions in the proposal that are discussed below.

The following is a section-by-section summary of changes and, where applicable, a discussion of comments received.

We are revising this section to update certain incorporation by reference materials and are adding three new entries. We are updating the following previously approved pamphlets and standards:

We are also incorporating by reference the 2001 edition of the American Pyrotechnics Association's Standard 87-1, Standard for Construction and Approval for Transportation of Fireworks, Novelties, and Theatrical Pyrotechnics, which establishes a ten-inch limit on aerial shells for fireworks that may be classed as Division 1.3 explosives.

We are updating the entry for the Association of American Railroads (AAR) Manual of Standards and Recommended Practices, Section C—Part III, Specifications for Tank Cars, Specification M-1002 by adding the 2000 edition and removing the entries for the 1992 and 1996 edition.

We are adding the American Society for Testing and Materials (ASTM) E 114-95 test method for straight beam examination of the tubular surface of cylinders and tubes which is used in conjunction with ASTM E 213-98 to measure the wall thickness of a cylinder and to detect general corrosion and defects located in the path of the ultrasonic straight beam direction. ASTM E 213-98 was incorporated by reference in a final rule published in the Federal Register on August 8, 2002 (Docket HM-220D, 67 FR 51626). Two commenters requested we incorporate by reference the ASTM E 114-95 (2001) test method and the ASTM E 213-02 to reflect the latest version of these standards. Because we did not propose to incorporate the newer editions of these standards in the NPRM, we are not incorporating them at this time. These standards may be considered for incorporation by reference in a future rulemaking.

We are also adding the Chlorine Institute's booklets entitled “Chlorine Institute Emergency Kit ‘A’ for 100-lb. & 150-lb. Chlorine Cylinders” and “Chlorine Institute Emergency Kit ‘B’ for Chlorine Ton Containers”. (See § 173.3 preamble discussion.)

In the NPRM we proposed to move a shipper requirement to notify the Bureau of Explosives (BOE) whenever a rail car containing a time-sensitive product is not received by the consignee within 20 days from shipment from §§ 173.314(g)(1) and 173.319(a)(3) to § 171.15. We also proposed to require notification to the Federal Railroad Administration (FRA) instead of the BOE by “the person with knowledge (shipper or carrier).” Commenters generally supported notification to the FRA, however, two commenters opposed moving the reporting requirements into § 171.15 because “the reporting requirement for late delivery of time sensitive materials does not meet the criteria of reporting under § 171.15.” The commenters opposed assignment of the reporting responsibility to “the person with knowledge (shipper or carrier)” and said this language is not specific enough and could cause “instances of noncompliance” where the shipper believes the carrier is the “person with knowledge” and vice versa. Commenters are also divided on who should be assigned the reporting responsibility. Some commenters want the responsibility assigned to the shipper, others to the carrier. Another commenter objected to having to choose from multiple telephone numbers depending on time of day to report these late shipments. Based on valid concerns from commenters that the reporting requirements for late shipments do not fit the reporting criteria under § 171.15 and the various other issues raised by commenters that we need to further review, we are not adopting this proposal at this time.

We are amending the entry for “Butylene” by adding a limited quantity exception for compressed gases (see § 173.306) in column (8A) of the Hazardous Materials Table (HMT). This amendment corrects an oversight in previous rulemakings and is consistent with the entries for “Petroleum gases, liquefied” and other hydrocarbons.

We are adding a new domestic entry for “Cartridges power devices, ORM-D” to the HMT for consistency with the packaging exceptions authorized in § 173.63(b). This entry is limited to those cartridges, small arms and cartridges power devices which are authorized to be reclassed and shipped as ORM-D in § 173.63(b)(1).

For Zone B Toxic Inhalation Hazard entries with ID numbers UN3303, UN3304, UN3305, UN3306, UN3307, UN3308, UN3309, and UN3310, we are amending the HMT by adding Special Provisions B9 and B14; and for Zone C Toxic Inhalation Hazard entries with the same ID numbers, we are adding Special Provision B14. The special provisions were inadvertently omitted in previous rulemakings.

In the NPRM, we proposed to remove the letter “I” in column (1) of the HMT for compressed gas entries with ID numbers UN 3304, UN 3305, and UN 3306 and liquefied gas entries with ID numbers UN 3308, UN 3309 and UN 3310. The letter “I” identifies proper shipping names which are appropriate for describing materials in international transportation. A commenter pointed out that removal of the letter “I” in column 1 of the HMT from these Division 2.3 materials, which show a Class 8 subsidiary hazard, is inappropriate because the definition of Class 8 in § 173.136 is limited to solid and liquid materials. A Class 8 subsidiary hazard for Division 2.3 materials is only prescribed under international regulations. RSPA agrees with the commenter; therefore, this proposal is not adopted.

For the entry “Liquefied gas, toxic, oxidizing, corrosive, n.o.s.” Hazard Zones B, C and D, we are correcting a typographical error in the subsidiary labeling requirements by removing the Division 2.1 label requirement and adding the Division 5.1 label in its place.

We are revising the entry for “Gas sample, non-pressurized, toxic, n.o.s., UN 3169” by adding Special Provision 6 in column (7) of the HMT. The entry is classed as a Division 2.3 poisonous gas and must be described as an inhalation hazard under the provisions of the HMR. A commenter pointed out that the entry “Gas sample, non-pressurized, toxic, flammable, n.o.s., UN 3168” which is also a Division 2.3 gas and must be described as an inhalation hazard material, should also be assigned Special Provision 6. We agree with the commenter and are revising the entry for “Gas sample, non-pressurized, toxic, flammable, n.o.s., UN 3168” in the HMT accordingly.

We are revising paragraph (d) to clarify that the placarding exception for non-bulk packagings containing only the residue of a hazardous material covered by table 2 does not apply to materials subject to the subsidiary placarding requirements in § 172.505 (e.g., poison inhalation hazard). A material subject to the subsidiary placarding requirements in § 172.505 requires placarding for the subsidiary hazard in addition to any other required placards regardless of quantity.

We are revising § 173.3 to allow a DOT 3A480 or 3AA480 cylinder containing chlorine or sulphur dioxide (both materials poisonous by inhalation) that has developed a leak in the valve or fusible plug to be temporarily repaired using a Chlorine Institute Emergency Kit “A” and be transported by private or contract carrier one time, one way, from the point of discovery to the appropriate facility for discharge and examination. Similarly, we are allowing a DOT 106A500 multi-unit tank car tank containing chlorine or sulphur dioxide that has developed a leak in the valve or fusible plug to be temporarily repaired using a Chlorine Institute Emergency Kit “B.” We have authorized the use of the kits under the exemption program for several years with satisfactory shipping experience. Adopting these exemption provisions into the regulations will eliminate the need for an exemption and facilitate the movement of affected containers to appropriate facilities. We are also correcting a typographical error in the paragraph (d) heading to read “DOT 106A500” instead of “DOT 105A500”. The commenters supported the proposal; however, several commenters requested that use of the “A” and “B” kits be extended to other specification packagings as well as to other compressed gases. Our proposal in the NPRM is based on a satisfactory shipping record under the exemption program using the “A” kits to temporarily repair leaking 3A480 and 3AA480 cylinders and the “B” kits to temporarily repair DOT 106A500 multi-unit tank car tanks containing chlorine or sulphur dioxide. Therefore, we are adopting the amendment as proposed. While other materials might develop a satisfactory shipping record if tested, neither RSPA nor FRA is aware of significant experience in the use of “A” or “B” kits for commodities other than chlorine or sulphur dioxide or for containers other than the specification 3A480/3AA480 cylinders or DOT 106A500 multi-unit tank car tanks. Proponents of this expansion have not presented sufficient or convincing evidence to substantiate a more extensive amendment to the HMR. Including other types of packagings and materials is outside the scope of this rulemaking and may be considered in a future rulemaking.

We are revising § 173.12(c) to authorize the reuse of packagings for shipments of all wastes, not just waste materials subject to EPA waste manifest requirements, to designated facilities. This includes shipments of spent/waste materials which are being returned to or shipped to an EPA licensed and certified Storage or Disposal facility, but are not subject to the Uniform Hazardous Waste Manifest requirements of the U.S. Environmental Protection Agency.

We are revising paragraph (c) to clarify that the placarding exceptions for non-bulk packages containing only the residue of a § 172.504 Table 2 material do not apply to materials subject to the subsidiary placarding requirements in § 172.505. A material subject to the subsidiary placarding requirements in § 172.505 requires placarding for the subsidiary hazard in addition to any other required placards regardless of quantity.

We are adding a new paragraph authorizing the continued use of existing DOT-103 and 104 tank cars, if they meet all applicable requirements. No new construction of these tanks is authorized. We are also revising paragraph (b)(2)(ii) for clarity by removing the reference to “Chloroprene, inhibited” since Special Provision B57 addresses the requirements for chloroprene in class DOT-115A tank cars, and by removing the last sentence since “breather holes” are not authorized in the HMR. In addition, we are revising paragraph (b)(5) to reflect changes to Appendix Y of the AAR Specifications for Tank Cars. This change recognizes the 2000 edition of Appendix Y in the AAR Tank Car Manual.

In paragraph (b), we are adding, for purposes of clarification, a parenthetical cross-reference to § 180.352 that contains detailed requirements for retest and inspection of IBCs.

We are adding a statement indicating that pyrotechnic substances and articles are considered explosives unless otherwise classed. The definition of “explosive” in § 173.50 previously did not specifically include pyrotechnics.

We are revising paragraph (c) to forbid offering for transportation a leaking or damaged article, even if not in a package. This is in addition to the existing prohibition of offering a leaking or damaged package of explosives for transportation.

We are revising paragraph (c), in the table of Packing Methods, to clarify that Packing Instruction 132(a) applies to articles with closed casings and Packing Instruction 132(b) applies to articles without closed casings.

We are removing the wording “safety relief” and adding the wording “reclosing pressure relief” in its place in paragraphs (k) and (m) for consistency.

Currently, the HMR appear to require that cargo tank motor vehicles (CTMVs) that transport Division 2.2 materials with a subsidiary hazard, Division 2.1 materials, and anhydrous ammonia in both metered and other than metered delivery service must be equipped with both a passive and an off-truck remote means of emergency discharge control. We are revising § 173.315(n)(1)(vi) to permit CTMVs in both metered and other than metered delivery service, with capacities of more than 3,500 water gallons, used to transport Division 2.2 materials with a subsidiary hazard, Division 2.1 materials, and anhydrous ammonia to be equipped with only a passive means of emergency discharge control, provided that the system functions for both metered and non-metered deliveries. If the system functions only for non-metered deliveries, then the CTMV must also be equipped with an off-truck remote emergency discharge control system.

We are amending paragraph (a)(2) by adding the requirements in subparts G (Emergency Response Information) and H (Training) of part 172 for transportation of cryogenic liquids by rail or highway. We never intended to except shipments of cryogenic liquids from these requirements.

We are amending § 177.834(a) to require that any packaging containing a hazardous material, regardless of Class or Division, be secured against movement if the packaging is not permanently attached to a motor vehicle. We are also incorporating into paragraph (a) the closely related requirements in § 177.834(g) to prevent relative motion between the hazardous material packages themselves and between packages and the vehicle and to ensure that packages that have valves or other fittings be loaded in a manner that minimizes the likelihood of damage during transportation to the valves, other fittings or, as clarified in this final rule, other hazardous materials packages. Securement of packages containing hazardous materials to prevent movement during transportation reduces the potential for damage to packages and thus, enhances transportation safety.

Also, for consistency with similar requirements in Parts 174, 175, and 176, we are adding a new paragraph (b) to clarify that packages bearing orientation markings must be loaded in such a way that they remain in the correct position as indicated by the markings.

Currently § 177.835 prohibits carrying a Division 1.1 or Division 1.2 material on any vehicle or a combination of vehicles if the other vehicle is carrying a Division 2.3 or Division 6.1 material. The segregation table in § 177.848 restricts loading and transporting of a Division 1.1 or 1.2 material with a material in Division 2.3, Hazard Zone A or B, and in Division 6.1, PG I, Hazard Zone A. For consistency with the provisions in § 177.848(d), we are revising § 177.835(c)(4)(iii) to limit the segregation restriction for a Division 1.1 or Division 1.2 explosive material to Division 2.3 materials in Hazard Zone A or B and to Division 6.1, PG I materials in Hazard Zone A.

We are amending paragraph (a) to permit the diesel engine of a cargo tank motor vehicle to be running during loading and unloading of Class 3 materials if the ambient temperature is at or below −12 °C (10 °F). A motor vehicle's diesel engine is very difficult to restart if the engine is turned off in extremely cold weather for loading or unloading of product. Leaving a motor vehicle engine running in ambient temperatures of below −12 °C (10 °F) enhances operating benefits without compromising safety.

We are revising paragraph (e) to expand the prohibition of transporting packagings bearing or required to bear a POISON or POISON INHALATION HAZARD label to include packagings that are placarded or required to be placarded POISON or POISON INHALATION HAZARD. Under § 172.514(c) certain small bulk packagings may either be placarded or labeled.

We are revising paragraph (h) to authorize use of the ASTM E 114 test method for straight beam examinations on the tubular surface of cylinders and tubes as stated earlier in this preamble in the discussion to § 171.7.

We are removing the specifications and all references to class DOT-103 and 104 tanks cars from this part since new construction of these tank cars is no longer authorized. (Continued use of class DOT-103 and 104 tank cars is authorized in §§ 173.31 and 180.507.)

Paragraph (a) implies that only tanks used to transport hazardous materials are subject to the jurisdiction of DOT. For consistency with §§ 171.2(c) and 180.3(a), we are revising paragraph (a) to clarify that any tank represented as a DOT specification tank, even when used to transport non-regulated commodities, is subject to the HMR.

We are revising § 179.3 for clarity.

We are revising this section by removing an obsolete requirement to furnish a Certificate of Construction to DOT.

In paragraph (f), we are removing an outdated compliance date.

In paragraphs (b) and (c), we are adding, for purposes of clarification, a reference to § 173.314(j), which contains excess flow valve requirements for flammable gases.

In the heading for Subpart D, we are removing the reference to class DOT-103 and DOT-104 tank cars.

In the section heading, we are removing the reference to class DOT-103 and DOT-104 tank cars.

In the NPRM, we proposed to remove the reference to class DOT-103 and DOT-104 tank cars in paragraph (a). In this section, for the convenience of HMR readers, because the continued use of Class DOT 103 and 104 tank cars is authorized, we are not adopting this proposal.

We are amending the section heading by removing the words “safety relief” and adding “pressure relief” in their place.

We are amending the table by removing the reference to a class DOT-103W tank car and adding a reference to a class DOT-111A tank car in its place.

We are amending the table by removing the entries for class DOT-103 and DOT-104 tank cars because new construction of these tank cars is no longer authorized. (Continued use of class DOT-103 and 104 tank cars is authorized in §§ 173.31 and 180.507.)

Section 179.201-2 addresses minimum plate thickness for DOT specification tank cars that may no longer be constructed. Therefore, § 179.201-2 is removed and reserved.

We are amending paragraph (b) by removing the reference to DOT-103 tank cars.

In this final rule, in § 171.7 we are amending the “Table of material incorporated by reference” by updating the entry for the AAR Specifications for Tank Cars from the 1996 edition to the 2000 edition. See § 171.7 preamble discussion. Therefore, we are amending paragraph (b) for clarity and removing the reference to the January 1996 edition of the AAR Specifications for Tank Cars.

In this final rule, we are incorporating by reference CGA Pamphlet C-13, Guidelines for Periodic Visual Inspection and Requalification of Acetylene Cylinders (see § 171.7 preamble). CGA Pamphlet C-13 changes the time parameters for requalification of the porous mass of acetylene cylinders from “no sooner than 3 years” to “no sooner than 5 years.” Consequently, we are also revising paragraph § 180.209(i) to reflect this change.

We are adding a new paragraph authorizing the continued use of DOT 103 and 104 tank cars, which may no longer be constructed.

This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866. Therefore, it was not reviewed by the Office of Management and Budget (OMB), and a regulatory assessment was not required for OMB. This final rule is not considered to be significant under the Regulatory Policies and Procedures order issued by the U.S. Department of Transportation (44 FR 11034) and, therefore, a Regulatory Analysis under the DOT order is not required.

In this final rule, we are amending miscellaneous provisions in the HMR to clarify the provisions and to relax requirements where warranted; responding to requests from industry associations to update references to standards that are incorporated in the HMR, and making certain technical corrections. These changes will enhance safety. The impact of these amendments is believed to be so minimal that a regulatory evaluation is not warranted. In the NPRM, we invited public comments on any impacts of the proposed changes. We did not receive any comments regarding the impacts of these changes.

This final rule was analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). Federal law expressly preempts State, local, and Indian tribe requirements, applicable to the transportation of hazardous materials, that cover certain subjects and are not substantively the same as the Federal requirements. 49 U.S.C. 5125(b)(1). These subjects are:

(i) The designation, description, and classification of hazardous materials;

(ii) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;

(iii) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, content, and placement of those documents;

(iv) The written notification, recording, and reporting of the unintentional release in transportation of hazardous materials; or

(v) The design, manufacturing, fabricating, marking, maintenance, reconditioning, repairing, or testing of a packaging or container which is represented, marked, certified, or sold as qualified for use in the transport of hazardous materials.

This final rule concerns the classification, packaging, marking, labeling, and handling of hazardous materials, among other covered subjects and preempts any State, local, or Indian tribe requirements concerning these subjects unless the non-Federal requirements are “substantively the same” (see 49 CFR 107.202(d)) as the Federal requirements.

Federal hazardous materials transportation law provides at 49 U.S.C. 5125(b)(2) that if RSPA issues a regulation concerning any of the covered subjects, RSPA must determine and publish in the Federal Register the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. The effective date of preemption is 90 days from the publication of this final rule in the Federal Register.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have tribal implications, does not impose substantial direct compliance costs on Indian tribal governments, and does not preempt tribal law, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to review regulations to assess their impact on small entities. An agency must conduct a regulatory flexibility analysis unless it determines and certifies that a rule is not expected to have a significant impact on a substantial number of small entities. This final rule amends miscellaneous provisions in the HMR to clarify provisions based on our own initiative and also on petitions for rulemaking. While maintaining safety, it relaxes certain requirements that are overly burdensome and updates references to consensus standards that are incorporated in the HMR.

These amendments are generally intended to provide relief to shippers, carriers, and packaging manufacturers, including small entities. In addition, we are updating references to standards that are incorporated in the HMR; industry associations, representing large and small entities, requested these changes.

This final rule enhances safety, and I certify that this final rule does not have a significant economic impact on a substantial number of small entities.

This final rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered.

There are no new information collection requirements in this final rule.

This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objectives of the rule.

There are no significant environmental impacts associated with this final rule. An environmental assessment is available in the docket for this rulemaking. We received no comments concerning environmental impacts.

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

In Title 49 of the Code of Federal Regulations, Parts 400 to 999, revised as of October 1, 2002, in § 571.217, remove the duplicated text, beginning with S5.2.2.3 on page 637 through the end of the first Table 2, in column 1 on page 638.

The Area 2A Catch Sharing Plan for Pacific halibut off Washington, Oregon, and California is implemented in the annual management measures for the Pacific halibut fisheries published on March 7, 2003 (68 FR 10989), as amended at 68 FR 14167, March 24, 2003, at 68 FR 22323, April 28, 2003, at 68 FR 23901, May 6, 2003 and at 68 FR 39024, July 1, 2003. Those regulations established the 2003 area quota for the central coast of Oregon (Cape Falcon, OR to Humbug Mountain, OR) all-depth fishery of 229,103 lb (103.9 mt) and the related management measures. The third all-depth sport fishery season in this area, both north central and south central sub-areas, is scheduled to be open 2 days per week (Friday and Saturday) on previously announced specific dates, and the nearshore fishery (inside 30-fathoms) is scheduled for 7 days per week.

The pace of the all-depth halibut fishery has been slow off the Oregon central coast in recent years. Oregon Department of Fish and Wildlife (ODFW), the agency that directly monitors the sport halibut fishery off Oregon's coast, reports sport halibut catch in the 2003 fishery, as of June 22, 2003, to have 114,815 lb (52.1 mt) of quota remaining out of a 229,103 lb (103.9 mt) quota for the Oregon central coast fishery (combined all-depth: north central Oregon and south central Oregon, May and August). This fishery is scheduled to be open on August 1, 2, 8 and 9, and if quota remains, on one or more of the following dates: August 22 and 23, September 5, 6, 19 and 20, October 17 and 18. In order to increase opportunity for participation in sport halibut fisheries in the Oregon central coast subarea, ODFW recommended to NMFS and the International Pacific Halibut Commission (IPHC) that additional potential season reopening dates be available for the all-depth fishery. If quota remains after the previously scheduled August 1, 2, 8 and 9 opening, this change would increase the days available that a vessel could fish for halibut in the all-depth area. The additional potential reopening dates announced in this document allows flexibility in scheduling the remainder of the season and increased opportunity to attain the 2003 sport halibut quota for this subarea. ODFW hopes that by adding potential reopening dates, anglers will be able to access the full halibut quota for this subarea and not leave quota remaining, as in 2002, where about 50,000 lb (22.7 mt) of combined central coast quota remained.

Section 25 of the 2003 Pacific halibut regulations provides NMFS with the authority to make certain inseason management changes, provided that the action is necessary to allow allocation objectives to be met, and that the action will not result in exceeding the catch limit for the area. The Catch Sharing Plan's structuring objective for the Oregon north central coast area is to provide two periods of fishing opportunity in Spring and in Summer in productive deeper water areas along the coast, principally for charterboat and larger private boat anglers, and provide a period of fishing opportunity in the summer for nearshore waters for small boat anglers. The Catch Sharing Plan's structuring objective for the Oregon south central coast area is to create a south coast management zone that has the same objectives as the Oregon central coast subarea and is designed to accommodate the needs of both charterboat and private boat anglers in the south coast subarea where weather and bar crossing conditions very often do not allow scheduled fishing trips.

In consultation with the ODFW and the IPHC, NMFS has determined that allowing the following additional potential reopening dates to sport halibut fishing in the Oregon central coast all-depth subarea: August 29 and 30, September 12, 13, 26, and 27, and October 3, 4, 10, and 11, meets the Catch Sharing Plan's objectives. Additionally, this action is not expected to result in bycatch of overfished groundfish species above the set asides for Oregon sport fisheries in 2003, particularly the 3.7 mt set aside for yelloweye rockfish.

For the reasons stated above, NMFS announces the following change to the 2003 annual management measures (68 FR 10989, March 7, 2003, as amended at 68 FR 22323, April 28, 2003, at 68 FR 23901, May 6, 2003 and at 68 FR 39024, July 1, 2003) to read as follows:

1. On page 10999, in the third column, in section 24. Sport Fishing for Halibut, paragraph (4)(b)(v)(A)(3) in the third column is revised to read as follows: