Regulation CC establishes the maximum period a depositary bank may wait between receiving a deposit and making the deposited funds available for withdrawal.1 A depositary bank generally must provide faster availability for funds deposited by a “local check” than by a “nonlocal check.” A check drawn on a bank is considered local if it is payable by or at a bank located in the same Federal Reserve check processing region as the depositary bank. A check drawn on a nonbank is considered local if it is payable through a bank located in the same Federal Reserve check processing region as the depositary bank. Otherwise, a check is nonlocal.

Appendix A to Regulation CC contains a routing number guide that assists banks in identifying local and nonlocal banks and thereby determining the maximum permissible hold periods for most deposited checks. The appendix includes a list of each Federal Reserve check processing office and the first four digits of the routing number, known as the Federal Reserve routing symbol, of each bank that is served by that office. Banks whose Federal Reserve routing symbols are grouped under the same office are in the same check processing region and thus are local to one another.

Earlier this year, the Federal Reserve Banks decided to reduce the number of locations at which they process checks.2 As part of this restructuring process, the Pittsburgh office of the Federal Reserve Bank of Cleveland will cease processing checks on November 1, 2003. As of that date, banks with routing symbols currently assigned to the Pittsburgh office for check processing purposes will be reassigned to the Cleveland Reserve Bank's head office. As a result of this change, some checks that are drawn on and deposited at banks located in the Pittsburgh and Cleveland check processing regions and that currently are nonlocal checks will become local checks subject to faster availability schedules.

The Board accordingly is amending the list of routing symbols assigned to Fourth District check processing offices to reflect the transfer of operations from Pittsburgh to Cleveland and to assist banks in identifying local and nonlocal banks. These amendments are effective November 1, 2003, to coincide with the effective date of the underlying check processing changes. The Board is providing advance notice of these amendments to give affected banks ample time to make any needed processing changes. The advance notice will also enable affected banks to amend their availability schedules and related disclosures, if necessary, and provide their customers with notice of these changes.3 The Federal Reserve routing symbols assigned to all other Federal Reserve branches and offices will remain the same at this time. The Board of Governors, however, will issue similar notices at least sixty days prior to the elimination of check operations at some other Reserve Bank offices, as described in the announcement earlier this year.

The Board also is amending Regulation CC and its appendices to eliminate all references to Thomson Financial Publishing Inc., which has changed its name to TFP. To avoid having to make future changes because of a name change or substitution of service provider, the rule and appendices henceforth simply will refer to “an agent of the American Bankers Association.”

The Board has not followed the provisions of 5 U.S.C. 553(b) relating to notice and public participation in connection with the adoption of this final rule. The revisions to the appendices are technical in nature, and the routing symbol revisions are required by the statutory and regulatory definitions of “check-processing region.” Because there is no substantive change on which to seek public input, the Board has determined that the section 553(b) notice and comment procedures are unnecessary.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR 1320 appendix A.1), the Board reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget. This technical amendment to appendix A of Regulation CC will delete the reference to the Pittsburgh check processing office of the Federal Reserve Bank of Cleveland and reassign the routing symbols listed under that office to the head office of the Federal Reserve Bank of Cleveland. The depository institutions that are located in the affected check processing regions and that include the routing symbols in their disclosure statements would be required to notify customers of the resulting change in availability under § 229.18(e). However, because all paperwork collection procedures associated with Regulation CC already are in place, the Board anticipates that no additional burden will be imposed as a result of this rulemaking.

We received reports that an unsafe condition exists on certain R.E. Rust Models DeHavilland DH.C1 Chipmunk 21, 22, and 22A airplanes. After reviewing several of these airplanes, stress corrosion cracking was found on the tailplane attachment brackets and fatigue cracks and chaffing were found on the engine mount frame.

Cracks in the engine mount frame were found in the area of the junction of the front and rear top tube and engine mounting foot support brackets and in the front of the frame. We have determined that fatigue is the cause of the cracks. The upper aft mount frame tubes were also found to have damage caused by chaffing by the cowling support rod.

These conditions, if not corrected, could result in failure of the tailplane attachment brackets and failure of the engine mount. Such failures could lead to loss of control of the airplane.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain R.E. Rust Models DeHavilland DH.C1 Chipmunk 21, 22, and 22A airplanes. This proposal was published in the Federal Register as a supplemental notice of proposed rulemaking (NPRM) on April 15, 2003 (68 FR 18571). The supplemental NPRM proposed to require you to repetitively inspect the tailplane attachment brackets and replace each bracket at a specified time. The NPRM also proposed to require you to repetitively inspect each joint of the port and starboard engine mount frame and the rear upper mount frame tubes for cracks and/or damage and repair any cracks and/or damage found.

The FAA encouraged interested persons to participate in the making of this amendment. We did not receive any comments on the proposed rule or on our determination of the cost to the public.

After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We have determined that these minor corrections:

—Provide the intent that was proposed in the supplemental NPRM for correcting the unsafe condition; and

—Do not add any additional burden upon the public than was already proposed in the Supplemental NPRM.

On July 10, 2002, FAA published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs FAA's 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.

We estimate that this AD affects 54 airplanes in the U.S. registry.

We estimate the following costs to accomplish an inspection of the tailplane attachment brackets:

We estimate the following costs to accomplish any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need such replacement:

We estimate the following costs to accomplish an inspection of the engine mount frame:

The FAA has no method of determining the number of repairs or replacements each owner/operator will incur over the life of each of the affected airplanes based on the results of the proposed inspections. We have no way of determining the number of airplanes that may need such repair. The extent of damage may vary of each airplane.

The compliance time for the initial inspections in this AD is “within the next 90 days after the effective date of this AD.”

An unsafe condition specified by this AD is caused by corrosion. Corrosion can occur regardless of whether the aircraft is in operation or is in storage. Therefore, to assure that the unsafe condition specified in this AD does not go undetected for a long period of time, the compliance is presented in calendar time instead of TIS.

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 copy of the final evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model MD-11 and MD-11E airplanes series airplanes was published in the Federal Register on June 11, 2003 (68 FR 34847). That action proposed to require a one-time visual inspection of the circuit breakers to determine if discrepant circuit breakers are installed, and corrective action if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's 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.

We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

There are approximately 193 airplanes of the affected design in the worldwide fleet. The FAA estimates that 69 airplanes of U.S. registry will be affected by this AD, that it will take approximately 80 work hours per airplane to accomplish the required inspection of the circuit breakers (over 700 installed on each airplane), and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $358,800, or $5,200 per airplane.

The cost impact figure discussed above is 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.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Bombardier Model DHC-8-102, -103, and -106 airplanes; Model DHC-8-201 and -202 airplanes; and Model DHC-8-301, -311, and -315 airplanes; was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on June 2, 2003 (68 FR 32695). That action proposed to require replacement of the elevator stop bumpers of the horizontal stabilizer with new bumpers.

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

One commenter requests that the FAA revise the supplemental NPRM to address the issue of the future incorporation of the TRs referenced in the supplemental NPRM into the general revisions of the applicable PSMs. The commenter states that providing for this eventuality in this AD would eliminate the need for operators to request approval from the FAA of an alternative method of compliance (AMOC) with this AD in the future.

We concur. Once TRs have been incorporated into the PSM, the TRs are voided. Thus, referring to the TRs alone may necessitate that operators must apply for an AMOC once the information in the applicable TR has been incorporated into the applicable PSM. We have added a new paragraph (c) to this AD, and re-identified subsequent paragraphs accordingly, to state that, when the information in the applicable TR has been included in the general revisions of the applicable PSM, the general revisions may be inserted in the PSM, and the applicable TR may be removed from the Airworthiness Limitations section of the Instructions for Continued Airworthiness.

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

This is considered to be interim action until final action is identified, at which time we may consider further rulemaking.

Since the issuance of the supplemental NPRM, we have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

We estimate that 195 Bombardier Model DHC-8-102, -103, and -106 airplanes; Model DHC-8-201 and -202 airplanes; and Model DHC-8-301, -311, and -315 airplanes; of U.S. registry will be affected by this AD, that it will take approximately 2 work hours per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of this AD on U.S. operators is estimated to be $25,350, or $130 per airplane.

The cost impact figure discussed above is 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.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Airbus Model A300 B2 and B4; A300 B4-600, A300 B4-600R, and A300 F4-600R (collectively called A300-600); A310; A319; A320; A321; A330; and A340 series airplanes; equipped with certain PPG Aerospace windshields; was published in the Federal Register on June 4, 2003 (68 FR 33416). That action proposed to require replacement of certain windshields manufactured by PPG Aerospace with new windshields.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the single comment received. The commenter concurs with the proposed AD.

After careful review of the available data, including the comment noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's 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.

We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

We estimate that 622 airplanes of U.S. registry will be affected by this AD. Currently, there are no Model A340 series airplanes on the U.S. registry.

The following table shows the estimated cost impact to do the required actions for airplanes affected by this AD. The following table also shows the estimated cost impact for Model A340 series airplanes affected by this AD, should an affected airplane be imported and placed on the U.S. Register in the future. The average labor rate is $65 per work hour, and there are 2 windshields per airplane. The estimated maximum cost for all airplanes affected by this proposed AD is $12,029,480 (assuming both windshields must be replaced on all affected airplanes); however, some warranty relief may be available.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Aerospatiale Model ATR42-500 and ATR72 series airplanes was published in the Federal Register on June 18, 2003 (68 FR 36525). That action proposed to require inspecting the wire bundle in the area of electrical rack 90VU to detect damage, verifying that the conduit around the wire bundle is in the proper position, and installing a clamp between the wire bundles and the carbon shelves structure.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

The FAA estimates that 86 airplanes of U.S. registry will be affected by this AD, that it will take approximately 4 work hours per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Required parts will cost approximately $259 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $44,634, or $519 per airplane.

The cost impact figure discussed above is 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.

The FAA is relocating the Harlingen VOR/DME approximately 8 nautical miles to the southeast of its current location. As a part of that effort, on May 23, 2003, the FAA proposed to realign V-13 northeast of the McAllen VOR/DME to intersect with V-163 south of the Corpus Christi VORTAC (68 FR 28179). Additionally, the FAA proposed to revise the point of origin of V-407 from the Harlingen VOR/DME to the Brownsville VORTAC and to revise a segment of V-407 north of the Harlingen VOR/DME from the current Harlingen VOR/DME 357° radial to the new Harlingen VOR/DME 351° radial. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on this proposal to the FAA. No comments were received in response to the proposal. Except for editorial changes, this amendment is the same as that proposed in the notice.

This amendment to 14 CFR part 71 revises V-13 and V-407 in the Harlingen, TX, area. Specifically, this action realigns V-13 northeast of the McAllen VOR/DME to intersect with V-163 south of the Corpus Christi VORTAC; revises the point of origin of V-407 from the Harlingen VOR/DME to the Brownsville VORTAC; and realigns V-407 north of the Harlingen VOR/DME to reflect the change of radial due to the relocation of the Harlingen VOR/DME. The FAA is taking this action due to the relocation of the Harlingen VOR/DME and to enhance the management of aircraft operations over the Harlingen, TX, area.

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

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

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

1. This final rule makes specific changes to the Commission's regulations that require companies to make certain information available directly to the public. The changes are necessary to reconcile those regulations with Order No. 630, which established standards and procedures for the handling of Critical Energy Infrastructure Information (CEII) submitted to or created by the Commission. 68 FR 9857 (Mar. 3, 2003); III FERC Stats. & Regs. ¶ 31,140 (Feb. 21, 2003). Because Order No. 630 addressed only situations in which a person might seek access to CEII that is in the Commission's possession, further changes to ensure consistent treatment and protection of CEII are needed where companies possess CEII and are required by the Commission's regulations to make it available to the public unconditionally.

2. This final rule revises the Commission's regulations in the following areas: (1) 18 CFR part 4, which requires that applicants for hydropower licenses, permits, and exemptions make various types of information available to the public; (2) 18 CFR part 16, which requires that applicants for projects subject to sections 14 and 15 of the Federal Power Act, 18 U.S.C. 807-808, make specified information available to the public; (3) 18 CFR 141.300, establishing requirements for filing FERC Form No. 715, Annual Transmission Planning and Evaluation Report, which requires that portions of the form be made available to the public by the public utility upon request; and (4) 18 CFR part 157, which governs applications for certificates of public convenience and necessity, and for orders permitting and approving abandonment under Section 7 of the Natural Gas Act.

3. As explained in the Notice of Proposed Rulemaking (NOPR), 68 FR 18538, 18540 (Apr. 21, 2003), IV FERC Stats. & Regs. ¶ 32,569 (Apr. 9, 2003), Order No. 630 arose from the Commission's concern that CEII could be employed by terrorists to engineer attacks against the nation's energy facilities. The Commission had previously taken steps to remove various categories of documents that were likely to contain CEII from public availability through the internet, the Federal Energy Regulatory Records Information System (FERRIS), and the Commission's public reference room. 68 FR at 9858. Order No. 630 reaffirmed that conclusion and established that the Commission would institute procedures to protect CEII submitted to it. Id.

4. Order No. 630 defined CEII in § 388.113(c)(1) of the Commission's regulations as information about proposed or existing critical infrastructure that:

(i) Relates to the production, generation, transportation, transmission, or distribution of energy;

(ii) Could be useful to a person in planning an attack on critical infrastructure;

(iii) Is exempt from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. § 552; and

(iv) Does not simply give the location of the critical infrastructure. 68 FR at 9870. The order defined “critical infrastructure” in § 388.113(c)(2) as:

5. Order No. 630 adopted a process for submission of CEII to the Commission that largely parallels the process for submission of confidential materials in Section 388.112 of the Commission's regulations. That section now provides that an entity submitting CEII to the Commission is responsible for identifying and marking CEII with the legend “Contains Critical Energy Infrastructure Information—Do Not Release.” Information identified as CEII is placed in a nonpublic file, with the Commission retaining the right to make a determination whether CEII treatment has been properly claimed. The submitter is notified in the event any person or entity requests release of the CEII, and also prior to any release of the information being made. 68 FR at 9870.

6. To handle requests for release of CEII, Order No. 630 established the position of CEII Coordinator. A person desiring access to CEII must file a written request with the CEII Coordinator containing the following information:

7. The Commission issued the final rule on February 21, 2003. 68 FR 9857 (Mar. 3, 2003), III FERC Stats. & Regs. ¶ 31,140 (Feb. 21, 2003). In doing so, it recognized that its regulations in some areas require companies to make information that might constitute CEII available directly to the public. Because Order No. 630 addressed only CEII in the possession of the Commission, this situation created a window of vulnerability whereby CEII that would be protected under Order No. 630 could become available to persons of malicious intent. This final rule is intended to close that window. 68 FR at 18540.

8. The NOPR identified the following portions of the Commission's regulations as provisions that might require the disclosure of CEII:

FERC Form No. 715, Annual Transmission Plan and Evaluation Report, contains information that will likely constitute CEII. For example, part 2 requires power flow data, part 3 requires system maps and diagrams, and parts 4 and 5 require transmission planning data. The instructions to the form require submitting companies to make it available to the public upon request. 68 FR at 18540.

Several provisions of part 157, which governs applications for certificates of public convenience and necessity and for orders permitting and approving abandonment, require that information be made available to the public that might constitute CEII. Information such as flow diagrams and gas supply data must be supplied on request to intervenors and made available in central locations in the project area. These provisions are found in 18 CFR 157.5(d), 157.10(b), 157.22(e)(3)-(4), and 157.203(d). 68 FR at 18540.

Part 4, which governs licenses, permits, exemptions and other applications under the Federal Power Act, requires that applicants make various types of information about their projects available to the public, including items such as detailed maps and scientific studies. Specifically, under 18 CFR 4.32(a)(3), an applicant for a preliminary license, permit or exemption must provide notification to affected property owners. Under § 4.32(b)(3)-(4), an applicant must make a copy of the application and exhibits available to the public for inspection and copying at specified locations. Under §§ 4.34(i)(4)(i) and 4.34(i)(6)(iii), an applicant using alternative procedures must distribute an information package and maintain a public file of all relevant documents. Finally, under § 4.38(g), which provides for pre-filing consultation in the case of an original license, the applicant must make available for public inspection various items, including detailed maps and design information. 68 FR 18540. In addition, part 16 of the Commission's hydropower regulations, which specifies procedures for takeover and relicensing of existing projects, contains notice provisions that require applicants to make items such as drawings, diagrams and emergency action plans available for public inspection. Such provisions are found at 18 CFR 16.7(d)-(e) and 16.8(i). 68 FR 18540

9. The NOPR also proposed to revise several sections that require information possibly constituting CEII to be made available to Indian tribes and other government agencies. Such provisions are found at 18 CFR 4.32(b)(1)-(2), 4.38(b)(1), 4.38(c)(4), 4.38(d), 16.8(b)(1), 16.8(c)(4), and 16.8(d). As explained in the NOPR, the Federal Records Act, 44 U.S.C. 3510(b), does not require one federal agency to accord the same treatment to information as another federal agency where the former receives the information directly from a third party. Consequently, to ensure consistent treatment of CEII, the Commission proposed to add provisions for instances where information must be provided to other agencies and to tribes that would parallel the proposed provisions applicable to information made available to the public. The Commission noted that its proposed revisions would not prohibit a company from sharing CEII with a government agency, but would only ensure that the Commission's regulations did not require it to disclose CEII. 68 FR 18541.

10. The changes proposed by the NOPR were intended to parallel the treatment of CEII under Order No. 630. The NOPR proposed that a company required by the affected regulations to make available information that might constitute CEII would make a determination whether the information was in fact CEII. If it was, the company would omit the CEII from the information being made available and instead include a brief statement describing the omitted information without revealing CEII, and informing the reader of his or her right to challenge the omission through submission to the CEII Coordinator under the procedures adopted in Order No. 630 and found in 18 CFR 388.112 and 388.113. The NOPR added that companies would be expected to adhere to previous determinations made by the Commission or the Coordinator with respect to specific information. 68 FR 18541.

11. The Commission issued the NOPR on April 9, 2003, and ultimately received twelve comments.2

12. The Commission on this date is issuing two other orders that have some bearing on this rulemaking. As noted, one is the order on rehearing from Order No. 630. The other is a final rule, in RM02-16, revising the Commission's hydropower licensing procedures. The hydropower revisions contain provisions requiring companies to make information available to the public that may constitute CEII. Consequently, the licensing rulemaking is adding a provision to 18 CFR part 5 that will parallel the revisions made in this Final Rule.

13. Some of the comments supported the proposals in the NOPR in whole or in large part.3 Disagreements or suggestions centered on several areas.

14. Some commenters expressed concern that the NOPR, if adopted, would restrict market opportunities and interfere with other interests by keeping information away from persons with a legitimate need for it. One commenter expressed significant concerns that the NOPR would interfere with the operation of the electric market by making it difficult for market participants to obtain needed data.4 For example, the Study Group was concerned that information would become unavailable from OASIS;5 that transmission owners would selectively withhold Form No. 715 information, resulting in discrimination;6 that industry councils would be unable to obtain information for studies and models, or that some companies would be unable to obtain the studies or models themselves;7 and that intervenors would be unable to obtain needed information in a timely fashion.8 The Study Group specifically contends that the Commission should enunciate and enforce a comparability standard to ensure equal access to information.9 It also suggests a system under which CEII owners would be required to accept OASIS passwords, identification numbers employed by regional councils, or certifications made by regional transmission organizations (RTOs) as proof that a person was a suitable recipient. Any dispute would be appealable to the CEII Coordinator.10

15. Other comments expressed similar concerns. One commenter stated that the use of the word “shall” in the proposed regulations might lead companies to believe that they were prohibited from disclosing CEII voluntarily.11 The Bonneville Power Administration (BPA) noted that the Commission cannot prohibit it from disclosing information pursuant to statutory requirements such as the Freedom of Information Act (FOIA) and the National Environmental Policy Act (NEPA).12 The Department of Interior (Interior) expressed concern that its access to information pursuant to its own statutory authorities might be hampered.13

16. The Commission believes that these concerns are misplaced. As the Commission stated in the NOPR, neither the revisions proposed there nor in Order No. 630 is intended to require companies to withhold CEII, or to prohibit voluntary arrangements for sharing information. These revisions are intended only to ensure that the Commission's regulations do not require the disclosure of CEII. 68 FR 18541. There is nothing in these revisions that affects one entity's ability to reach appropriate arrangements for sharing CEII and the Commission in fact encourages such arrangements. In many cases, companies and persons that have had dealings with one another in the past will be in a better position than the Commission to judge the security of such an arrangement. There is thus nothing in these revisions that would, for example, prevent a regional council from obtaining data from member companies or from sharing it both with member and non-member companies. Nevertheless, in new §§ 4.32(k)(4), 16.7(d)(4), 141.300(d)(4), and 157.10(d)(4) of the Commission's regulations, the Commission has added language to the revisions to make as it as clear as possible that its CEII regulations do not prohibit or restrict voluntary disclosures of information pursuant to private arrangements.

17. With respect to the specific concerns raised by these commenters, the Commission does not believe such concerns are justified. Nothing in these revisions, or in Order No. 630 for that matter, addresses OASIS in any way and there should be no impact on it. The revisions made in this final rule apply only to specific sections and do not cover the Commission's regulations generally; the Commission has decided against including a “catch-all” provision, as suggested by one commenter,14 so as to avoid such unwanted consequences. The Commission also does not believe companies should be disadvantaged in obtaining Form No. 715 data. As Form No. 715 is an annual report, its timing can be anticipated and gaining access to CEII contained in it should be possible in a timely manner. Most likely, the same entities will seek access every year, so that permission in most cases will be quickly granted. The Commission's numerous statutory mandates are undergirded by principles of non-discrimination (i.e., comparability). Thus, these revisions contemplate that all persons with a legitimate need for CEII will be able to gain access to it with a minimum of difficulty. The revisions already envision and intend to provide comparable treatment in access to CEII.

18. The Commission understands the Study Group's concern that CEII owners might discriminate in making information available to market participants, but believes that its concern may be premature. Failure to provide required Form No. 715 data would be a violation of the Commission's regulations, even without the changes to the regulations effected by this rule and Order No. 630. The Commission remains responsible for ensuring that companies comply with its regulations, and the Commission will not tolerate abuses. Nor does the Commission believe that this final rule will necessarily do anything to enhance a CEII owner's ability to engage in such abuses. Form No. 715 data must still be submitted in full to the Commission. Should a company fail to disclose the data fully to a requester that has been granted access to CEII, that failure would be easy to identify. Furthermore, the Commission anticipates that companies such as the Study Group's members will have little trouble, and experience little delay, in obtaining such access. Finally, the Commission wishes to emphasize again that this final rule affects only those informational provisions that are specifically listed here. It does not apply generally across the industries that the Commission regulates. In the case of the electric market, no requirements are being affected in any way other than Form No. 715.

19. The Study Group recommended several suggestions to facilitate access to CEII consistent with security concerns. Their concern is that whatever process ultimately adopted by the Commission is reliable, non-discriminatory and easy to use. While we share the Study Group's concerns with the need to facilitate access, we continue to believe that the process contained in the final rule is sufficiently straightforward and should operate quickly in situations involving access to Form No. 715 data. Moreover, by employing standards set by outside entities in determining whether to grant access to CEII under the Commission's regulations, the Study Group's proposals would have the undesirable effect of requiring the Commission to monitor approval processes employed by these organizations to ensure that they provided sufficient security.

20. With respect to access and dissemination of information by entities such as BPA and Interior, it goes without saying that the Commission lacks authority to override obligations imposed by statute or regulation. Clearly, this final rule cannot, and is not intended to, prevent agencies from complying with the FOIA or NEPA, or to prevent persons or companies from complying with lawfully enacted regulations that require the provision of information. Finally, the question of intervenors obtaining information in a timely fashion was addressed in Order No. 630. 68 FR 9866.

21. Several commenters expressed concerns about the process for handling requests for access to CEII. Some believed that the process for approval would be too slow and suggested changes to speed it up. Some recommended a pre-approval process.15 One commenter suggested that CEII owners be required to provide CEII to persons with OASIS passwords, or that regional transmission organizations be able to certify customers for access automatically.16 Another suggested a process whereby a requester must first go to the company, then file a request with the Coordinator.17 One commenter requested assurance that the Commission will not place requests for access on separate tracks, the point presumably being that there should not be a “slow track.” 18

22. Some of the comments about the approval process concerned the handling of CEII. One suggested that a CEII owner be required to notify everybody on the service list when information is determined not to be CEII.19 One asked the Commission to establish a time limit in which a CEII owner must provide information once a request for access has been granted.20 Another suggested that the Commission employ standardized non-disclosure agreements, and that it specify that a recipient, once granted access to CEII, be permitted to use it for ongoing business activities, such as a consultant with more than one client.21 The Study Group also asked the Commission to clarify that, once a requester is granted access, it may communicate directly with the CEII owner.22 One commenter asked that the Commission establish guidelines for the Coordinator to follow, and suggested that CEII owners be involved in any negotiations over non-disclosure agreements.23 Finally, one commenter requested that the Coordinator perform a monitoring role intended to determine whether companies are making required information available. This commenter stated that outsiders to the system cannot tell what information is being withheld.24

23. All of the above comments address the approval process generally and, thus, are not appropriate for consideration as part of this docket. The NOPR proposed to follow the approval process already established in Order No. 630 and stated that the Commission would not revisit issues already addressed in that order. 68 FR 18541. The procedures and guidelines for requesting and obtaining access to CEII, and for challenging CEII designations, were addressed at length in Order No. 630. This included timeliness, verification issues, standards for granting access, and the viability of a pre-approval process. Id. at 9863-65. Some of these issues are addressed again in the order on rehearing being issued concurrently. The Commission will not revisit these issues here.

24. Some clarification is, however, required with respect to several of these suggestions. The Commission does not have separate tracks for CEII access requests. There also is nothing in the Commission's regulations to prevent a requester from directly contacting a CEII owner, either before or after access is granted. Finally, the Commission does not believe it would be practical for the CEII Coordinator to perform a monitoring role. For the most part, the Commission's various regulations requiring that regulated companies make information available rely on voluntary compliance, regardless of whether CEII is involved. The Commission does not believe that the risk of a company simply flouting the regulations is any greater when CEII is involved than it has ever been. Existing mechanisms for dealing with companies that do not comply with their legal responsibilities should suffice in such situations.

25. This rule, as well as Order No. 630, represents the Commission's best efforts to achieve a delicate balance between the due process rights of interested persons to participate fully in its proceedings and its responsibility to protect public safety by ensuring that access to CEII does not facilitate acts of terrorism. The Commission believes that it has struck an appropriate balance; however, it intends to monitor the experiences under these two rules to ensure that it has done so. Therefore, in six months the Commission will solicit public comment to determine whether submitters or requesters of CEII are experiencing any problems with the new processes.

26. The Interstate Natural Gas Association of America (INGAA) suggests that the Commission include 18 CFR 157.18 in the provisions being revised in this final rule.25 That section governs applications to abandon facilities or service and requires the applicant to file exhibits, including material, such as flow diagrams and detailed location information, that likely would include CEII. 18 CFR 157.18(c) and (g). The section includes only filing requirements, however, rather than requirements that information be made available to the public. Consequently, any CEII that the section requires be disclosed should already be covered by Order No. 630.

27. One commenter states that the use of the term “landowner” in proposed 18 CFR 157.6(d)(6) is too restrictive.26 The revision as proposed in the NOPR referred to situations where the regulation might require disclosure of CEII “to a landowner.” The notification provision is worded more broadly to require notification to “affected landowners and towns, communities, and local, state and federal governments and agencies.” 18 CFR 157.6(d)(1). The Commission thus has replaced the phrase “to a landowner” with “to any person.”

28. The Commission received a suggestion that it establish procedures specifying how and where information denied CEII treatment must be made available.27 The Commission considers this unnecessary and potentially confusing, because different situations may be presented depending on the exact context. If a request that information be treated as CEII is rejected, then the underlying requirement to disclose the information remains operative and, absent any other provision or direction from the Commission, the owning company must comply as promptly as practicable.

29. The National Hydropower Association comments that the Commission should include a provision stating that a company may withhold information considered to be CEII even though it was made publicly available before the Commission enacted these revisions.28 The Commission agrees with the underlying principle, but considers an explicit provision unnecessary. Neither Order No. 630 nor this final rule contains any provision requiring that CEII be disclosed because it was previously disclosed. In fact, as noted in Order No. 630, the Commission went to considerable effort to remove from its Web site documents that previously had been available to the public. 68 FR 9858. Absent an explicit provision requiring previously available CEII to remain available, the logical and intended conclusion is that such information may be removed or made unavailable.

30. The National Hydropower Association also comments that a company owning CEII should not be required to make the information available to one requester solely because it was made available to another requester.29 The Commission has already indicated its agreement with this principle. Order No. 630 explained that access is to be determined on a case-by-case basis. 68 FR 9864. The fact that one person or organization has been determined not to present a security risk obviously does not mean that a different person or organization would not do so. The Commission cautions owners of CEII, however, that it will not tolerate abuse of these revisions designed to discriminate against competitors or otherwise adversely affect competition in the energy markets. The revised rules are intended solely to enable owners of CEII to prevent information from getting into a terrorist's hands.

31. INGAA expresses concern over the provision in 18 CFR 157.10(d) requiring treatment of CEII to adhere to previous determinations, because companies may not be aware of previous determinations.30 This should rarely be a problem because in most instances the previous determination will involve information owned by the same company. Nevertheless, the Commission has added the phrase “to the extent practicable” to new §§ 4.32(k)(2), 16.7(d)(2), 141.300(d)(2), and 157.10(d)(2).

32. Except as discussed above, the Commission adopts the proposed revisions to its regulations.

33. Office of Management and Budget (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule. 5 CFR 1320.12. The public disclosure of information originally supplied by an agency to the recipient is, however, excluded from the coverage of the regulations. 5 CFR 1320.3(c)(2). The only information collection requirement contained in this final rule is a requirement that companies include a statement outlining the procedures for seeking access to CEII. Because that statement would be supplied by the Commission, the information collection regulations do not apply to this final rule.

34. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. Order No. 486, Regulations Implementing the National Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. Preambles 1986-1990 ¶ 30,783 (1987). The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment.

Included in the exclusion are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended. 18 CFR 380.4(a)(2)(ii). This rule is procedural in nature and therefore falls under this exception; consequently, no environmental consideration is necessary.

35. The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. §§ 601-612, generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The Commission is not required to make such analyses if a rule would not have such an effect. The Commission certifies that this proposed rule, if finalized, would not have such an impact on small entities.

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

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

38. Assistance is available for FERRIS and the FERC's Web site during normal business hours. Contact FERC Online Support at FERCOnlineSupport@ferc.gov or toll free at (866)208-3676, or for TTY, contact (202)502-8659.

39. These regulations are effective October 23, 2003. The provisions of 5 U.S.C. 801 regarding Congressional review of final rules do not apply to this final rule, because the rule concerns agency procedure and practice and will not substantially affect the rights of non-agency parties.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B) and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for not publishing an NPRM and for making this rule effective less than 30 days after publication in the Federal Register. The permit application was not received in time to publish an NPRM followed by a final rule before the effective date. Delaying this rule would be contrary to the public interest of ensuring the safety of those working on the M/V FAIRLANE, as well as other workers in the area, while extremely heavy machinery is being unloaded. This rule also ensures that any interested spectators do not accidentally place themselves in danger should any problems occur. As such, immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments previously with regard to this event.

This Safety Zone is established to safeguard the vessel and the public while the M/V FAIRLANE is unloading heavy equipment and machinery in the vicinity of Port Washington, WI. The size of the zone was determined by the necessities of safe navigation in the Captain of the Port zone and local knowledge about wind, waves, and currents in this particular area.

The safety zone is effective from 12:01 a.m. (CST) on September 5, 2003 until 11:59 p.m. (CST) on September 15, 2003. This rule will be enforced when the motor vessel FAIRLANE is in the vicinity of Port Washington conducting transfer operations on Lake Michigan.

The Coast Guard will implement a safety zone around the motor vessel FAIRLANE while anchored in the vicinity of Port Washington, WI. Vessels are not to come within 100 yards of the motor vessel FAIRLANE. The purpose of the safety zone is to prevent vessels from transiting too close to the M/V FAIRLANE and causing wakes that may hinder the safe transfer of equipment from the ship to the barge. In addition, the Coast Guard will notify the public, in advance, by way of Ninth Coast Guard District Local Notice to Mariners, marine information broadcasts, and for those who request it from Marine Safety Office Milwaukee, by facsimile (fax).

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

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed 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 proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

This determination is based on the minimal time that vessels will be restricted from the zone and the zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the zone's activation.

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: the owners or operators of vessels intending to transit in the vicinity of the motor vessel FAIRLANE, while conducting transfer operations in the vicinity of Port Washington on Lake Michigan, from 12:01 a.m. (CST) on September 5, 2003 until 11:59 p.m. (CST) on September 15, 2003.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will be enforced to safeguard the navigation of the boating public and the transfer operation of the FAIRLANE while the vessel is conducting transfer operations on Lake Michigan. In addition, commercial vessels transiting the area can transit around the safety zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect. Vessel traffic may enter or transit through the safety zone with the permission of the Captain of the Port Milwaukee or his designated on-scene representative.

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

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

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

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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

We 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)(g) of the Commandant Instruction M16475.1D, from further environmental documentation.

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. Publishing an NPRM is impracticable due to the unique nature of the rule and its short duration. The USS CONSTELLATION will be towed “dead ship,” which means that the vessel will be underway without the benefit of mechanical or sail propulsion. However, it is imperative that there be a clear transit route and a safe buffer zone around the USS CONSTELLATION and the vessels towing her. 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 Coast Guard expects a large spectator fleet. For safety concerns, it is in the public interest to have a safety zone in place for the event, since immediate action is needed to protect mariners against potential hazards associated with the turn-around of the USS CONSTELLATION.

The USS CONSTELLATION Foundation, Inc. is sponsoring its “turn-around” of the historic sloop-of-war USS CONSTELLATION in Baltimore, Maryland. The event is part of the ongoing maintenance and care of the ship, making sure that it weathers evenly on both sides. Planned events include the “dead ship” tow of the USS CONSTELLATION and an onboard salute with navy pattern cannon while off Fort McHenry National Monument and Historic Site.

The Coast Guard anticipates a large recreational boating fleet during this event. Operators should expect significant vessel congestion along the planned route.

The purpose of this rule is to promote maritime safety and protect participants and the boating public in the Port of Baltimore immediately prior to, during, and after the scheduled event. The rule will provide for a clear transit route for the participating vessels, and provide a safety buffer around the participating vessels while they are in transit. The rule will impact the movement of all vessels operating in the specified areas of the Port of Baltimore.

Interference with normal port operations will be kept to the minimum considered necessary to ensure the safety of life on the navigable waters immediately before, during, and after the scheduled event.

The historic sloop-of-war USS CONSTELLATION is scheduled to conduct a “turn-around” on September 5, 2003. The USS CONSTELLATION is scheduled to be towed from its berth, to Fort McHenry, and return, along a route of approximately 2.5 nautical miles (5 nautical miles total) that includes specified waters of the Inner Harbor, Northwest Harbor and Patapsco River.

The safety of dead ship tow participants requires that spectator craft be kept at a safe distance from the intended route during this evolution. The Coast Guard is establishing a temporary moving safety zone around the USS CONSTELLATION “turn-around” participants on September 5, 2003, to ensure the safety of participants and spectators immediately prior to, during, and following the dead ship tow.

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 proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This finding is based on the limited size of the zone, the minimal time that vessels will be restricted from the zone, vessels may transit a portion of the Inner Harbor, Northwest Harbor, and Patapsco River around the zone, and the zone will be well publicized to allow mariners to make alternative plans for transiting the affected area. In addition, vessels that may need to enter the zone may request permission on a case-by-case basis from the COTP Baltimore or his designated representatives.

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. This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to operate or anchor in portions of the Inner Harbor, the Northwest Harbor, and the Patapsco River in the Port of Baltimore, Maryland. Because the zone is of limited size and duration, it is expected that there will be minimal disruption to the maritime community. Before the effective period, the Coast Guard will issue maritime advisories widely available to users of the river to allow mariners to make alternative plans for transiting the affected areas. In addition, smaller vessels, which are more likely to be small entities, may transit around the zones and request permission from the COTP Baltimore on a case-by-case basis to enter the zones.

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 the rule would affect your small business and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Small businesses may 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 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 analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because this rule establishes a safety zone. A final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES.

In a proposed rule published in the Federal Register on December 6, 2002 [Vol. 67, No. 235, pages 72626-72629], the Postal Service proposed to revise the procedures in the DMM for filing indemnity claims, to clarify the standards for payment of claims, and to incorporate policies not currently set forth in the DMM. One comment was received. After thorough consideration to the issues raised in this comment, the Postal Service adopts the proposed revisions with the modifications discussed below.

The revisions to the procedures for filing claims are made in conjunction with the redesign of the Postal Service's claim system and are intended to facilitate the provision of more timely decisions to Postal Service customers' claims. For example, customers are permitted to file claims sooner in some circumstances, thereby allowing decisions to be made closer to the mailing date. In addition, either the sender or the addressee, whoever is in possession of the original mailing receipt, will be permitted to file a claim for the complete loss of a numbered Insured Mail, Registered MailTM, COD, or Express Mail® article. Under past rules, only the sender was permitted to submit such claims. The revisions do not change the procedures for unnumbered Insured Mail articles (insured for $50 or less). As before, only the sender will be allowed to file a claim for the complete loss of an unnumbered Insured Mail article.

The revisions also provide further clarification of what is acceptable evidence of value, codifying current policies into the DMM. Claims for damage require that the article, packaging, and mailing container must be presented by the addressee to the Postal Service for inspection regardless of whether the sender or addressee files the claim.

The new revisions will also:

(1) Clarify situations under which indemnity will not be paid, ensuring that current policies are codified in the DMM.

(2) Clarify the time limit in which a customer may forward an appeal to the Consumer Advocate at Headquarters.

(3) Provide that the original sales receipt from a Postal Service retail terminal listing the mailing receipt number and insurance amount is acceptable evidence of insurance when the original mailing receipt is not available.

(4) Clarify that a mailer of a collect on delivery (COD) article may not stipulate “Cash Only.”

(5) Provide that all appeals must be sent directly to Claims Appeals at the St. Louis Accounting Service Center.

(6) Provide that local adjudication of unnumbered Insured Mail articles will end with the implementation of the Customer Claims Response System (CCRS).

A summary of the comments and our analysis of each follows:

1. S010.2.2. The commenter raised two issues regarding the changes in the time for filing a claim for a lost or damaged COD article. First, the commenter stated that the requirement for waiting 45 days before filing a claim for a lost COD article is excessive compared to the time frame for mail receiving other special services.

The Postal Service does not believe the proposed rule should be changed. Since handling procedures differ depending on the special service provided, it is inappropriate to establish uniform limits for filing claims. A COD article may be held at a delivery unit for up to 30 days before being returned to the sender if unclaimed by the addressee (see DMM, D042.1.7.f). It should also be noted, the Postal Service proposal reduced the current waiting period for filing a claim for a lost COD article from 60 days to 45 days. As for other classes of mail or service, the new time frames took into consideration that the holding period is 5 days for Express Mail and 15 days for Insured Mail items or Registered Mail items.

Secondly, the commenter objected to the new requirement that a customer must file a claim no later than 45 days from the mailing date when the contents of an article are damaged or missing from the container. The commenter states that if the COD article were not delivered until the 45th day after mailing, the sender could not file a damage claim because the 45 days would have already passed.

Although the likelihood of the commenter's hypothetical occurring is remote, the Postal Service believes there is merit in the concern raised. Accordingly, the Postal Service will revise the proposed rule to allow customers to submit damage claims no later than 60 days from the mailing date.

2. S010.2.5.a. The commenter states that the requirement for the original postmarked mailing receipt is inappropriate in that not all receipts will be postmarked.

The Postal Service agrees that it erred in that Express Mail and point of service (POS) retail terminal imprinted receipts do not require a postmark. Therefore, the Postal Service withdraws this proposed rule.

The commenter also states that the requirement for the original receipt is inappropriate in the case of Registered Mail or Express Mail service when the Postal Service has a copy of the mailing receipt, and can validate the claim because the mailer has provided the article number and date of mailing either from a photocopy or from other records.

The Postal Service does not believe the rules should be amended to accommodate this suggestion. The requirement for the original receipt is to ensure that the proper party is indemnified. It is the customer's responsibility to provide the proof of insurance evidenced by an original mailing receipt. Moreover, under existing procedures, mailers utilizing these services are also permitted to submit the mailing wrapper as evidence of insurance.

3. S010.2.6.b. The commenter states that the addition of the phrase, “For items valued up to $100,” appears to be a major change. The Postal Service maintains this revision does not represent a change in policy but merely codifies current policy. Acceptance of a customer's statement of value, in lieu of actual evidence of value, creates an opportunity for abuse, particularly when permitted for higher-value items.

The commenter also suggests that Postal Service retail clerks should inform mailers what evidence will be needed to support claims. Mailers needing such information have access to policies concerning indemnity claims through the DMM, which is readily available on the Postal Service's Web site. They can also seek such information from Postal Service clerks or other Postal Service personnel.

The commenter also asserts that eliminating reimbursement of the cost of labor from handmade items is too broad. The Postal Service offers coverage for the value of goods, based on the established value in the marketplace, whether or not those goods are handmade. However, if the item mailed is not commonly sold (e.g., a hobby, craft, or similar handmade item), there is no established value. In that case, the Postal Service provides compensation for the costs of the materials used, but not for the time used in making it. The Postal Service will amend the proposed rule to clarify this policy.

4. S010.2.6.h. The commenter requests clarification of this proposed rule referring to a printout of a transaction that is made on the Internet. This comment pertains to the proposal for the provision of evidence of value for goods obtained through Internet transactions. These transactions are typically conducted through a Web-based payment network that offers payment services through a stored value account, commonly used to buy or sell items at online auctions.

For transactions involving the use of a credit card online or payment by check, a copy of a credit card statement or canceled check could serve as evidence of value. The Postal Service will amend the proposed rule to clarify this policy.

5. S010.2.14.r. The commenter states that this section appears to require the use of Registered Mail for obtaining insurance on negotiable items, currency, or bullion, which would be a change in current policy.

Although the Postal Service generally recommends that customers send these items as Registered Mail items, it did not intend to eliminate the option of mailing them as Insured Mail items. Accordingly, in order to avoid confusion, the Postal Service will withdraw this proposed change to the DMM.

6. S010.2.14.ae. The commenter objects to the proposed regulation that event or transportation tickets, received after the event, are not insured when there is a provable loss because of the delay and the article was mailed using Express Mail service. With Express Mail's guaranteed delivery time, if the article is not delivered by that time, and a provable loss results from the delay in delivery, then, the commenter argues, the loss should be covered by Postal Service insurance.

The commenter raised a valid concern and the final rule incorporates an exception for Express Mail service.

7. S010.2.14.af. The commenter objects to this revision regarding nonpayable claims for software installed onto computers that have been lost or damaged. The commenter states that if one paid to have software loaded on the lost or damaged computer, then the insurance should cover the cost of having the same software installed on a replacement computer. In addition, if software, recorded on compact disc or diskette(s), enclosed with the computer when shipped, is also lost or damaged, it should be covered by the insurance purchased.

The Postal Service does not believe a change in the rule is warranted. Software loaded onto personal computers is licensed for use to the purchaser. Whether on compact disc or diskette(s), the software provides the purchaser the ability to reinstall the software on a computer. Software is generally designed to self load when the appropriate drive is selected with limited prompting or assistance from an individual. Also, a replacement personal computer typically will include replacement software. Software on a medium, such as compact discs or diskettes, recognized as a means to load the software onto a computer, would be covered for loss or damage dependent upon the amount of insurance coverage purchased at the time of mailing.

8. S010.2.14.ag. The commenter observes that this proposed rule does not comply with the provisions stated in S921.1.5, Fee and Postage, in that it states that if the mailer does not receive the personal check that was mailed by the delivery Post Office, it will be the mailer's responsibility to obtain a replacement check from the addressee. The fees for COD service include insurance against failure to receive a postal money order or the recipient's check.

The Postal Service agrees that the proposed rule is in conflict with S921.1.5, and, therefore, the proposed rule is withdrawn.

9. S010.2.14.ai. The commenter states that the concept of personal time should be clarified.

The commenter previously raised this issue in item 3 and it was addressed by the Postal Service above.

10. S913.2.7. The commenter raises the same issue as identified in item 2 regarding the requirement that all mailing receipts have a postmark (round date).

The Postal Service does not believe the proposed rule should be changed. This revision relates to Insured Mail receipts, PS Form 3813, Receipt for Domestic Insured Parcel, or PS Form 3813-P, Insured Mail Receipt. There is an area on each of these receipts annotated either “Postmark of Mailing Office,” or “Postmark Here,” that clearly indicates that a postmark (round date) or point of service (POS) retail terminal imprint, which includes a date, is required. Because these Postal Service mailing receipts are readily available in retail lobbies, a postmark or POS retail terminal imprint is required in order to provide validation that the special service was actually purchased.

Based on the reasons discussed above, the Postal Service hereby amends the following standards of the DMM, incorporated by reference into the Code of Federal Regulations. See 39 CFR part 111.

This Supplementary Information section is organized as follows:

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 “Region 5 Air Docket MI83”. 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 Air Programs Branch, Air and Radiation Division, EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. EPA requests that if at all possible, you contact the contact listed in the For Further Information Contact section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

2. 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 Region 5 Air Docket MI83” 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 nash.carlton@epa.gov. Please include the text “Public comment on proposed rulemaking Region 5 Air Docket MI83” 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 click on the button “TO SEARCH FOR REGULATIONS CLICK HERE”, and select Environmental Protection Agency as the Agency name to search on. 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: Carlton Nash, Chief, Regulation Development Section, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. Please include the text “Public comment on proposed rulemaking Regional Air Docket MI83” in the subject line on the first page of your comment.

3. By Hand Delivery or Courier. Deliver your comments to: Carlton Nash, Chief, Regulation Development Section, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 18th floor, Chicago, Illinois 60604. 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, 8:30 to 4:30 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.

On April 25, 2003, the MDEQ submitted a revision to Michigan's definition of volatile organic compound. Michigan's revised definition of the term volatile organic compound is “any compound of carbon or mixture of compounds of carbon that participates in photochemical reactions, excluding the following materials, all of which have been determined by the United States Environmental Protection Agency to have negligible photochemical reactivity: * * *.” The definition goes on to list the exempt compounds. When test methods measure exempt compounds, i.e. any of those contained in the list of excluded compounds, Michigan's definition allows for their exclusion providing that two specific criteria are met: (1) The exempt compounds must be accurately quantified and (2) MDNR must approve the exclusion.

This submittal replaces the revision to Michigan's definition of VOC that MDNR submitted on August 20, 1998, and supplemented on November 3, 1998. EPA proposed to disapprove this previous submittal on June 10, 1999 (64 FR 31168), because it was not consistent with the federal definition of VOC contained in 40 CFR 51.100(s) or EPA policy guidance documents.

EPA is approving the April 25, 2003, revision to Michigan's definition of VOC. Michigan's revised definition, including the compounds listed, is consistent with the federal definition of VOC contained in 40 CFR 51.100(s), and EPA policy guidance documents, including: “Issues Relating to VOC Regulation Cutpoints, Deficiencies and Deviations, Clarification to Appendix D of November 24, 1987 Federal Register Notice” (Bluebook) (notice of availability published in the Federal Register on May 25, 1988); EPA's policy memorandum dated June 8, 1989, from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, entitled Definition of VOC: Rationale;” EPA's policy memorandum dated April 17, 1987, from G.T. Helms, Chief, Control Programs Operations Branch, entitled “Definition of VOC;” and EPA's policy memorandum dated April 17, 1987, from G.T. Helms, Chief, Control Programs Operations Branch, entitled “Definition of Volatile Organic Compounds (VOC's).” EPA's approval of the new definition of VOC will revise Michigan's SIP for ozone.

EPA is publishing this action without prior proposal, because EPA views this as a noncontroversial revision and anticipates no adverse comments. However, in a separate document in this Federal Register publication, EPA is proposing to approve the SIP revision. Should EPA receive adverse written comments by October 2, 2003, we will withdraw this direct final and respond to any comments in a final action. If EPA does not receive adverse comments, this action will be effective without further notice. Any parties interested in commenting on this action should do so at this time. If we do not receive comments, this action will be effective on November 3, 2003.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.

For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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

Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 3, 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).)

This supplemental information section is organized as follows:

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 “Region 5 Air Docket MN73”. 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 Air Programs Branch, Air and Radiation Division, EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. EPA requests that if at all possible, you contact the contact listed in the For Further Information Contact section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

2. 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 Region 5 Air Docket MN73” 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 nash.carlton@epa.gov. Please include the text “Public comment on proposed rulemaking Region 5 Air Docket MN73” 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 click on the button “TO SEARCH FOR REGULATIONS CLICK HERE”, and select Environmental Protection Agency as the Agency name to search on. 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: Carlton Nash, Chief, Regulation Development Section, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. Please include the text “Public comment on proposed rulemaking Regional Air Docket MN73” in the subject line on the first page of your comment.

3. By Hand Delivery or Courier. Deliver your comments to: Carlton Nash, Chief, Regulation Development Section, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 18th floor, Chicago, Illinois 60604. 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, 8:30 to 4:30 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.

In this action, EPA is approving into the Minnesota PM SIP certain portions of Minnesota Air Emission Permit No. 12300353-002, issued to Lafarge Corporation—Red Rock Terminal on May 7, 2002. Specifically, EPA is only approving into the SIP those portions of the permit cited as “Title I condition: SIP for PM10 NAAQS.”

EPA is taking this action because the state's request does not change any of the emission limitations currently in the SIP. The revised permit includes the addition of a pneumatic vacuum pump and a new cement silo. The revision to the SIP does not approve any new construction or allow an increase in emissions, thereby continuing to provide for attainment and maintenance of the PM National Ambient Air Quality Standards (NAAQS) and satisfying the applicable PM requirements of the Act.

The pneumatic vacuum pump, which was in place and already controlled by a baghouse, had inadvertently been omitted from the Red Rock Road permit approved into the SIP by EPA in 1999. After consulting EPA, MPCA was advised that a major amendment to the permit was not needed to include this existing unit and that the pneumatic vacuum pump unit should be added into the permit during the next major amendment. Therefore, MPCA included the emission unit and baghouse in the 2002 permit amendment.

The 2002 permit includes a major amendment authorizing the additional emission point associated with a new cement silo. The silo emissions are to be controlled by a baghouse located on the top of the silo. Although actual emissions of PM from the facility would most likely decrease, the installation of the new unit did change the modeling parameters for the facility, thereby requiring a revision to the SIP.

Lafarge's Red Rock Road facility is located at 1363 Red Rock Road in Saint Paul, Ramsey County, Minnesota. On July 22, 1998, MPCA submitted to EPA a SIP revision for Ramsey County, Minnesota, for the control of PM emissions from certain sources located along Red Rock Road. Included in this submittal was a state operating permit for Lafarge Corporation (Air Emission Permit No. 12300353-001 issued by MPCA on April 14, 1998), which includes and identifies the Title I SIP conditions for the Red Rock Road facility. The EPA took final action approving the Lafarge Red Rock Road permit into the PM SIP on August 13, 1999 (64 FR 44131).

The SIP revision submitted by MPCA on July 18, 2002, consists of a revised state operating permit issued to the Lafarge Red Rock Road facility. The state has requested that EPA approve the following: the inclusion into the Minnesota PM SIP of only the portions of the revised Lafarge—Red Rock Terminal permit cited as “Title I condition: SIP for PM10 NAAQS.”

SIP control measures were contained in permits issued to culpable sources in Minnesota until 1990 when EPA determined that limits in state-issued permits are not federally enforceable because the permits expire. The state then issued permanent Administrative Orders to culpable sources in nonattainment areas from 1991 to February of 1996.

Minnesota's Title V permitting rule, approved into the state SIP on May 2, 1995 (60 FR 21447), includes the term “Title I condition” which was written, in part, to satisfy EPA requirements that SIP control measures remain permanent. A “Title I condition” is defined as “any condition based on source-specific determination of ambient impacts imposed for the purposes of achieving or maintaining attainment with the national ambient air quality standard and which was part of the state implementation plan approved by EPA or submitted to the EPA pending approval under section 110 of the act * * *” The rule also states that “Title I conditions and the permittee's obligation to comply with them, shall not expire, regardless of the expiration of the other conditions of the permit.” Further, “any title I condition shall remain in effect without regard to permit expiration or reissuance, and shall be restated in the reissued permit.”

Minnesota has since resumed using permits as the enforceable document for imposing emission limitations and compliance requirements in SIPs. The SIP requirements in the permit submitted by MPCA are cited as “Title I condition: SIP for PM10 NAAQS,” therefore assuring that the SIP requirements will remain permanent and enforceable. In addition, EPA reviewed the state's procedure for using permits to implement site-specific SIP requirements and found it to be acceptable under both Titles I and V of the Act (July 3, 1997 letter from David Kee, EPA, to Michael J. Sandusky, MPCA). The MPCA has committed to using this procedure if the Title I SIP conditions in the permit issued to the Lafarge Red Rock Road facility and included in the SIP submittal need to be revised in the future.

EPA is approving the site-specific SIP revision for the Lafarge Red Rock Road facility, located in Saint Paul, Ramsey County, Minnesota. Specifically, EPA is approving into the SIP only those portions of Lafarge's state operating permit cited as “Title I condition: SIP for PM10 NAAQS.”

The EPA is publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse comments are filed. This rule will be effective November 3, 2003 without further notice unless we receive relevant adverse comments by October 2, 2003. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. We will then address all public comments received in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective November 3, 2003.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future implementation plan. Each request for revision to the SIP shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

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

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

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

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

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 November 3, 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).)

This supplemental information section is organized as follows:

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 “Region 5 Air Docket MN79”. 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 Air Programs Branch, Air and Radiation Division, EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. EPA requests that if at all possible, you contact the contact listed in the For Further Information Contact section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

2. 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 Region 5 Air Docket “MN79” 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 nash.carlton@epa.gov. Please include the text “Public comment on proposed rulemaking Region 5 Air Docket MN79” 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 click on the button “TO SEARCH FOR REGULATIONS CLICK HERE”, and select Environmental Protection Agency as the Agency name to search on. 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: Carlton Nash, Chief, Regulation Development Section, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. Please include the text “Public comment on proposed rulemaking Regional Air Docket MN79” in the subject line on the first page of your comment.

3. By Hand Delivery or Courier. Deliver your comments to: Carlton Nash, Chief, Regulation Development Section, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 18th floor, Chicago, Illinois 60604. 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, 8:30 to 4:30 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.

In this action, EPA is approving into the Minnesota SO2 SIP certain portions of the Title V permit for Xcel Energy's Inver Hills Generating Plant (Xcel) located in the city of Inver Grove Heights, Dakota County, Minnesota. Specifically, EPA is only approving into the SIP those portions of the permit cited as “Title I Condition: State Implementation Plan for SO2.” In this same action, EPA is removing the Xcel Administrative Order from the state SO2 SIP, and the Ashbach Administrative Order from the state PM SIP.

EPA is taking this action for Xcel because the state's request does not change any of the emission limitations currently in the SO2 SIP or their accompanying supportive documents, such as the SO2 air dispersion modeling. The revision to the SO2 SIP does not approve any new construction or allow an increase in emissions, thereby providing for attainment and maintenance of the SO2 National Ambient Air Quality Standards (NAAQS) and satisfying the applicable SO2 requirements of the Act. The only change to the SO2 SIP is the enforceable document for Xcel, from the Administrative Order to the Title V permit.

EPA is taking action to rescind the Administrative Order for Ashbach from the Ramsey County PM SIP because, as described below, the Administrative Order for this facility is no longer necessary since the company has permanently ceased operations at the Saint Paul asphalt plant.

Xcel's Inver Hills Generating Plant is located in Inver Grove Heights, Dakota County, Minnesota, in the Pine Bend SO2 maintenance area. Monitored violations of the primary SO2 NAAQS from 1975 through 1977 led EPA to designate Air Quality Control Region (AQCR) 131 as a primary SO2 nonattainment area on March 3, 1978 (43 FR 8962). AQCR 131 includes Anoka, Carver, Dakota, Hennepin, Ramsey, Scott, and Washington Counties in the State of Minnesota. In response to Part D requirements of the Clean Air Act, MPCA submitted a final SO2 plan on August 4, 1980. EPA approved the Minnesota Part D SO2 SIP for AQCR 131 on April 8, 1981 (46 FR 20996).

Subsequent monitored violations of the SO2 NAAQS prompted a 1982 notice of SIP inadequacy for the Dakota County area of AQCR 131. Also, as a result of the promulgation of the Good Engineering stack height rule in 1985, the MPCA identified modeled attainment problems in other areas of AQCR 131. The submittal of a revised plan was further delayed by the passage of the 1990 Amendments to the Act. The plan for the Pine Bend area of Dakota County of AQCR 131, which included an Administrative Order for Northern States Power-Inver Hills Station, was approved by EPA on September 9, 1994 (59 FR 46553). EPA approved Amendments Two and Three to the administrative order for Northern States Power-Inver Hills Station on June 13, 1995 (60 FR 31088), and October 13, 1998 (63 FR 54585), respectively.

The state submitted a request to redesignate the Twin Cities and Pine Bend areas of AQCR 131 (excluding the Saint Paul Park area), to attainment of the SO2 NAAQS on September 7, 1994. EPA approved the redesignation request on May 31, 1995 (60 FR 28339).

Ashbach was located in Saint Paul, Ramsey County, Minnesota. A portion of the Saint Paul area was designated nonattainment of the PM NAAQS upon enactment of the 1990 Amendments to the Act. The State submitted SIP revisions satisfying the attainment demonstration requirements of the Act in 1991 and 1992. The enforceable element of the State's submittals were administrative orders for nine facilities in the Saint Paul area. An Administrative Order for Ashbach was included in these submittals. EPA took final action on February 15, 1994 at 59 FR 7218, to approve Minnesota's submittals as satisfying the applicable requirements for the Saint Paul PM nonattainment area. The facility ceased operations at the end of the 1996 asphalt producing season and was permanently shut down in 1997.

On June 20, 2002, MPCA requested that EPA redesignate the Saint Paul PM nonattainment area to attainment. EPA took final action on July 26, 2002 at 67 FR 48787, redesignating the Saint Paul PM nonattainment area to attainment of the PM NAAQS.

The SIP revision submitted by MPCA on February 6, 2000, consists of a Title V permit issued to Xcel. The state has requested that EPA approve the following:

(1) The inclusion into the Minnesota SO2 SIP only the portions of the Xcel Inver Hills Generating Plant Title V permit cited as “Title I Condition: State Implementation Plan for SO2.”;

(2) The removal from the Minnesota SO2 SIP of the Administrative Order for Xcel previously approved into the SIP; and,

(3) The removal from the Minnesota PM SIP of the Administrative Order for Ashbach previously approved into the SIP.

SIP control measures were contained in permits issued to culpable sources in Minnesota until 1990 when EPA determined that limits in state-issued permits are not federally enforceable because the permits expire. The state then issued permanent Administrative Orders to culpable sources in nonattainment areas from 1991 to February of 1996.

Minnesota's operating permitting program, approved into the state SIP on May 2, 1995 (60 FR 21447), includes the term “Title I condition” which was written, in part, to satisfy EPA requirements that SIP control measures remain permanent and requires all state permits, not only Title V permits, to contain all applicable requirements. A “Title I condition” is defined as “any condition based on source-specific determination of ambient impacts imposed for the purposes of achieving or maintaining attainment with the national ambient air quality standard and which was part of the state implementation plan approved by EPA or submitted to the EPA pending approval under section 110 of the act * * * .” The rule also states that “Title I conditions and the permittee's obligation to comply with them, shall not expire, regardless of the expiration of the other conditions of the permit.” Further, “any title I condition shall remain in effect without regard to permit expiration or reissuance, and shall be restated in the reissued permit.”

Minnesota has since resumed using permits as the enforceable document for imposing emission limitations and compliance requirements in SIPs. The SIP requirements in the permit submitted by MPCA are cited as “Title I Condition: State Implementation Plan for SO2,” therefore assuring that the SIP requirements will remain permanent and enforceable. In addition, EPA reviewed the state's procedure for using permits to implement site-specific SIP requirements and found it to be acceptable under both Titles I and V of the Act (July 3, 1997 letter from EPA to MPCA). The MPCA has committed to using this procedure if the Title I SIP conditions in the permit issued to Xcel and included in the SIP submittal need to be revised in the future.

EPA is approving the SIP revision for Xcel's Inver Hills Generating Plant located in the city of Inver Grove Heights, Dakota County, Minnesota. Specifically, EPA is approving into the SIP only those portions of Xcel's Title V permit cited as “Title I Condition: State Implementation Plan for SO2.” In this same action, EPA is removing from the state SO2 SIP the Xcel Inver Hills Generating Plant Administrative Order which had first been approved into the SO2 SIP on September 9, 1994 and amended on June 13, 1995 and October 13, 1998. In addition, EPA is removing from the state PM SIP the Ashbach Administrative Order which had previously been approved into the PM SIP on February 15, 1994.

The EPA is publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse comments are filed. This rule will be effective November 3, 2003 without further notice unless we receive relevant adverse written comments by October 2, 2003. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective November 3, 2003.

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate nor does it significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it will 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, “Federalism” (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 a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTA), 15 U.S.C. § 272, requires federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impracticable. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a SIP submission that otherwise satisfies the provisions of the Act. Therefore, the requirements of section 12(d) of the NTTA do not apply.

As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order, and has determined that the rule's requirements do not constitute a taking. 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 November 3, 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).)

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

We conclude that South Carolina's applications to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant South Carolina Final authorization to operate its hazardous waste program with the changes described in the authorization applications. South Carolina has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in South Carolina, including issuing permits, until the State is granted authorization to do so.

The effect of this decision is that a facility in South Carolina subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. South Carolina has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• do inspections, and require monitoring, tests, analyses or reports

• enforce RCRA requirements and suspend or revoke permits

• take enforcement actions regardless of whether the State has taken its own actions

This action does not impose additional requirements on the regulated community because the regulations for which South Carolina is being authorized by today's action are already effective, and are not changed by today's action.

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize the State program changes.

If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw that part of this rule but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

South Carolina initially received Final authorization on November 8, 1985, effective November 22, 1985 (50 FR 46437) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on September 8, 1988, effective November 7, 1988 (53 FR 34758), February 10, 1993, effective April 12, 1993 (58 FR 7865), November 29, 1994, effective January 30, 1995 (59 FR 60901), April 26, 1996, effective June 25, 1996 (61 FR 18502), October 4, 2000, effective December 4, 2000 (65 FR 59135) and August 21, 2001, effective October 22, 2001 (66 FR 43798).

On November 15, 2000 and December 20, 2001, South Carolina submitted final complete program revision applications, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that South Carolina's hazardous waste program revisions satisfy all of the requirements necessary to qualify for Final authorization. Therefore, we grant South Carolina Final authorization for the following program changes:

There are no State requirements that are more stringent or broader in scope than the Federal requirements.

South Carolina will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which South Carolina is not yet authorized.

South Carolina is not authorized to carry out its hazardous waste program in Indian country within the State, which includes the Catawba Indian Nation. Therefore, this action has no effect on Indian country. EPA will continue to implement and administer the RCRA program in these lands.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart PP for this authorization of South Carolina's program changes until a later date.

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action 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 action authorizes 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). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 6, 2000). This action will 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), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 F.R. 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document 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 in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective November 3, 2003.

The First Report and Order, FCC 00-99, adopted March 14, 2000; released March 16, 2000, approved a final rule governing the negotiation of agreements for the retransmission of television broadcast stations by MVPDs, established standards for implementing a good faith negotiation requirement of broadcasters to MVPDs, and provided clarification regarding the prohibition against exclusive retransmission consent contracts. In this document we make a non-substantive rule change to correct an error in the publication of § 76.65 of the Commission's rules.

As published, the final regulations contain an error which may prove to be misleading and needs to be clarified.

GSAR 538.273(a)(3) is revised to reflect the new clause title for GSAR clause 552.238-72, “Identification of Products that have Environmental Attributes.” The clause has been revised to update environmental definitions and to reflect language consistent with the FAR and with Executive Orders 13101 and 13123. GSA published a proposed rule, Identification of Energy-Efficient Office Equipment and Supplies Containing Recovered Materials or Other Environmental Attributes, in the Federal Register at 65 FR 44508, July 18, 2000. One respondent submitted comments in response to the proposed rule. GSA considered the comments in developing the final rule by revising the clause 552.238-72 to make editorial changes for consistency and clarification with respect to the definition of “energy-efficient product.” The clause was also revised to clarify the requirement to identify products designated by the Environmental Protection Agency (EPA) in their Comprehensive Procurement Guidelines (CPGs) that meet EPA purchasing recommendations for recovered and post-consumer material content. These specifically designated products should be identified separate from the umbrella category of products containing recovered materials. The rule includes information on attaching icons to product offerings in GSA Advantage! to indicate specific environmental attributes.

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

The General Services Administration certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. These environmental attributes are salient characteristics of the products offered and, therefore, are well known to vendors who market to Government customers required or encouraged to purchase products with specific environmental attributes. Therefore, the identification of such attributes in the offer and other marketing materials such as brochures, catalogs, websites, and GSA Advantage! does not constitute a significant economic impact.

The revised clause at 552.238-72, Identification of Products that have Environmental Attributes, contains an information collection requirement subject to the Paperwork Reduction Act (44 U.S.C. 3501, et seq.). However, the revisions to the clause made by this rule do not affect the information collection requirement approved previously by the Office of Management and Budget (OMB) and assigned OMB Control Number 3090-0262.

The purpose of this rulemaking is to implement the goals and requirements of Executive Order 13149, dated April 21, 2000 (65 FR 24593), entitled Greening the Government Through Federal Fleet and Transportation Efficiency.

The purpose of the Executive Order is to ensure that the Federal Government exercises leadership in the reduction of petroleum consumption through improvements in fleet fuel efficiency and the use of alternative fuel vehicles and alternative fuels. The specific provisions affecting the Department's acquisition program including its management contracts with motor vehicle fleet responsibilities are as follows. Part 2 of the Executive Order establishes goals for the reduction of petroleum consumption in the Federal Government motor vehicle fleet and requires the development of strategies for the increased use of alternative fuel vehicles, increased use of alternative fuels accompanied by improved alternative fuel infrastructure, and the acquisition of higher fuel economy vehicles. In addition, section 403 of the Executive Order encourages the acquisition by Federal agencies of environmentally preferable motor vehicle products, including the use of biobased motor vehicle products. Section 403.a emphasizes the current restriction on the use of other than re-refined motor vehicle lubricating oils (found in section 507 of Executive Order 13101, and implemented by 48 CFR (FAR) 23.404) by restating that restriction as a prohibition on the acquisition of virgin petroleum motor vehicle lubricating oils. That restriction and the requirements of Sections 403.b and 403.c are addressed by the Department's Affirmative Procurement Program. An Affirmative Procurement Program is required of Federal agencies by 48 CFR (FAR) 23.404, Agency affirmative procurement programs, and is implemented in DOE by 48 CFR (DEAR) 923.405, Procedures [DOE supplemental coverage—paragraph (e)]. The Department's Affirmative Procurement Program extends to its management contractors pursuant to 48 CFR (DEAR) 970.2304, Use of recovered/recycled materials. Section 505 of the Executive Order requires agencies to ensure that the goals and requirements of the Executive Order are incorporated into management contracts which involve management of Federal fleet motor vehicles. Finally, Section 506 of the Executive Order exempts military tactical, law enforcement and emergency vehicles from the requirements of the Executive Order.

The clause specified by this rule is a mandatory clause for use in management and operating contracts involving motor vehicle fleet operations. Contracting officers are strongly encouraged to add the clause at the next fee negotiation following the effective date of this rule. The clause should be included in new management and operating contracts.

The Department of Energy amends the regulation as follows:

1. A new subpart 923.7, Contracting For Environmentally Preferable and Energy-Efficient Products and Services, is added. It contains § 923.703, Policy.

2. A new § 970.2307, Contracting for environmentally preferable and energy-efficient products and services, is added. It includes Subsections 970.2307-1, Motor vehicle fleet operations, and 970.2307-2, Contract clause.

3. A new clause, DOE Motor Vehicle Fleet Fuel Efficiency, is added as § 970.5223-5.

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 rule is not subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB).

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 Executive 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. With regard to the review required by section 3(a), 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, these regulations meet the relevant standards of Executive Order 12988.

This rule has been reviewed under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., which requires preparation of an initial regulatory flexibility analysis for any rule that must be proposed for public comment and that is likely to have significant economic impact on a substantial number of small entities. DOE is not required by the Administrative Procedure Act (5 U.S.C. 553) or any other law to propose this procurement rule for public comment. Accordingly, the Regulatory Flexibility Act requirements do not apply to this rulemaking, and no regulatory flexibility analysis has been prepared.

There are no new information collection or record keeping requirements associated with this action.

DOE has concluded that promulgation of this rule falls into a class of actions which would not individually or cumulatively have significant impact on the human environment, as determined by DOE's regulations (10 CFR part 1021, subpart D) implementing the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). Specifically, this rule is categorically excluded from NEPA review because the rule establishes internal procedures and a DEAR contract clause and is considered to be strictly procedural (categorical exclusion A6); therefore, this rule does not require an environmental impact statement or environmental assessment pursuant to NEPA.

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.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires a Federal agency to perform a detailed assessment of costs and benefits of any rule imposing a Federal mandate with costs to State, local or tribal governments, or to the private sector, of $100 million or more. This rulemaking would only affect private sector entities, and the impact is less than $100 million.

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 rule or policy that may affect family well-being. This rulemaking will have no impact on family well-being.

As required by 5 U.S.C. 801, the Department of Energy will report to Congress promulgation of this 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(3).

Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, (66 FR 28355, May 22, 2001) requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

Today's rule is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

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 guidelines 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 these guidelines.

Issuance of this final rule has been approved by the Office of the Secretary of Energy.

Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) directs the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations are issued.

Permission may be granted for periods of 5 years or less if the Secretary finds that the total taking will have a negligible impact on the species or stock(s) of affected marine mammals, and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and if regulations are prescribed setting forth the permissible methods of taking and the requirements pertaining to the monitoring and reporting of such taking. NMFS has defined “negligible impact” in 50 CFR 216.103 as:

Under section 18(A), the MMPA defines “harassment” as:

On October 23, 2002, NMFS received an application from the Naval Air Weapons Station, China Lake (NAWS), under section 101(a)(5)(A) of the MMPA, requesting an authorization, effective from August 26, 2003 through August 25, 2008, for the harassment of small numbers of three species of marine mammals incidental to target missile launch operations conducted by the Naval Air Warfare Center Weapons Division (NAWCWD) on SNI, one of the Channel Islands in the Southern California Bight. These regulations, if implemented, would allow NMFS to issue annual LOAs to NAWS, which would replace the process of issuance of annual Incidental Harassment Authorizations (IHAs) under section 101(a)(5)(D) of the MMPA (see 66 FR 41843, August 9, 2001; 67 FR 56271, September 3, 2002). This action is being undertaken in part based upon recommendations made by the Marine Mammal Commission, under section 202(a)(4) of the MMPA. The current IHA expires on August 20, 2003.

According to the NAWS' application, these missile launch operations may occur at any time during the year depending on test and training requirements and meteorological and logistical limitations. On occasion, two or three launches may occur in quick succession on a single day. NAWS anticipates an average of 40 launches annually of Vandal (or similar sized) vehicles from SNI's Alpha Launch Complex (ALC) and smaller supersonic and subsonic missiles and targets from either ALC or the Building 807 Launch Site (Building 807). Launches at this annual level would be approximately double the recent activities at SNI. The NAWCWD conducted a total of 19 launches (including one dual launch) between August 15, 2001 and July 18, 2002 (14 Vandal launches and 5 other missiles and targets) under an IHA.

The purpose of these launches is to support activities associated with operations on the NAWCD's Point Mugu Sea Range. The Sea Range is used by the U.S. and Allied military services to test and evaluate sea, land, and air weapon systems; to provide realistic training opportunities; and to maintain operational readiness of these forces. Some of the SNI launches are used for practicing defensive drills against the types of weapons simulated by these vehicles. Some launches may be conducted for the related purpose of testing new types of targets to verify that they are suitable for use as operational targets. While SNI is under the land management responsibility of NAWS, planned missile and other target launches are conducted by the NAWCWD. A detailed description of the operations is contained in the NAWS application (NAWS, 2002) which is available upon request (see ADDRESSES).

The following section is provided to facilitate understanding of airborne and impulsive noise characteristics. In its application, NAWS has referenced both pressure and energy measurements for sound levels. For pressure, the sound pressure level (SPL) is described in terms of decibels (dB) re micro-Pascal (micro-Pa), and for energy, the sound exposure level (SEL) is described in terms of dB re micro-Pa2 -second. In other words, SEL is the squared instantaneous sound pressure over a specified time interval, where the sound pressure is averaged over 5 percent to 95 percent of the duration of the sound (in this case, one second).

Airborne noise measurements are usually expressed relative to a reference pressure of 20 micro-Pa. Also, airborne sounds are often expressed as broadband A-weighted (dBA) or C-weighted (dBC) sound levels. A-weighting refers to frequency-dependent weighting factors applied to sound in accordance with the sensitivity of the human ear to different frequencies. With A-weighting, sound energy at frequencies below 1 kHz and above 6 kHz is de-emphasized and approximates the human ear's response to sounds below 55 dB. C-weighting corresponds to the relative response to the human ear to sound levels above 85 dB. C-weight scaling is useful for analyses of sounds having predominantly low-frequency sounds, such as sonic booms.

While it is unknown whether the pinniped ear responds similarly to the human ear, a study by C. Malme (pers. commun. to NMFS, March 5, 1998) found that for predicting noise effects, the Navy believes that A-weighting is better than unweighted pressure levels because the pinniped's highest in-air hearing sensitivity is at higher frequencies than that of humans. In this document, whenever possible sound levels have been provided with A-weighting.

In general, launch vehicles are the Vandal and a variety of other supersonic and subsonic missiles and targets. Most other vehicles used would be similar in size and weight or slightly smaller and would have characteristics similar to the Vandal. NAWS has also requested that its incidental take authorization include coverage for up to three launches annually by vehicles that are larger than the Vandal (but under 50,000 lbs (23,000 kilograms (kg)) in weight). Potential impacts to pinnipeds by launch vehicles of that size are unanalyzed and must be assessed before NMFS can issue an authorization to take pinnipeds incidentally to that activity. Any proposed modification of these regulations to include these larger launch vehicle activities would be published in the Federal Register with opportunity for public comment.

The Vandal (designated MQM-8G) target missile is a relatively large, air-breathing (ramjet) vehicle with no explosive warhead that is designed to provide a realistic simulation of the mid-course and terminal phase of a supersonic anti-ship cruise missile. These missiles are 7.7 m (25.2 ft) in length with a mass at launch of 3,674 kg (8,100 lbs) including the solid propellant booster. There are variants of the Vandal; they all have the same dimensions, but differ in their operational range. The Vandals are remotely controlled, non-recoverable missiles. At launch, the Vandal is accelerated for several seconds by a solid propellant rocket booster to a speed sufficient for the ram-jet engine to start. After several seconds of thrust, the booster is discarded, falls into the water of the Sea Range, and the Vandal continues along its flight path at supersonic speed under ramjet power.

The Vandal and most other targets are launched from the ALC on the west-central part of SNI, a land-based launch site. The ALC is 192 m (630 ft) above sea level and is approximately 2 kilometers (km)(1.25 miles (mi)) from the nearest pinniped haul-out site. Launch trajectories from ALC may vary from a near-vertical liftoff, crossing the west end of SNI at an altitude of approximately 3,962 m (13,000 ft) to a nearly horizontal liftoff, crossing the west end of SNI at an altitude of approximately 305 m (1,000 ft). However, to date, most Vandal launches during NAWS first IHA monitoring program had low angles (8 degrees) crossing the SNI beaches at an altitude of about 1,300 ft (396 m)(Lawson, 2002). Four Vandals however, had high angle (42 degrees) profiles, crossing SNI beaches at an altitude of about 9,600 ft (2,926 ft)(Lawson, 2002).

Vandal launches produce strong noise levels. Sound measurements collected during two Vandal launches in 1997 and 1999 indicated received A-weighted SPLs ranged from 123 dB (re 20 micro-Pa) (SEL of 126 dB re 20 micro-Pa2 -sec) at 945 m (3,100 ft) to 136 dB (re μ20 Pa) (SEL of 131 dB re 20 micro-Pa2 -sec) at 370 m (1,215 ft) (Burgess and Greene, 1998; Greene, 1999). The most intense sounds occurred during the first 0.4 to 4.1 seconds after launch (Greene, 1999; Greene and Malme, 2002). However, what is important for this action is not the noise level near the launch site but the noise level over the pinniped haulouts on the SNI beaches. This issue will be discussed later in this document.

The Navy also plans to launch other subsonic and supersonic vehicles to simulate various types of threat missiles and aircraft. These are small unmanned aircraft that are launched using jet-assisted take-off (JATO) rocket bottles. Once launched, they continue offshore where they are used in training exercises to simulate various types of subsonic threat missiles and aircraft. The larger target, BQM-34, is 7 m (23 ft) long and has a mass of approximately 1,134 kg (2,500 lbs) plus the JATO bottle. The smaller BQM-74, is 420 centimeters (cm) (165.5 inches (in)) long and has a mass of approximately 250 kg (550 lbs) plus the JATO bottle. Additional types of small vehicles that may be launched include the Exocet and Tomahawk missiles, and the Rolling Airframe Missile (RAM).

All of these smaller targets are launched from either the ALC or from Building 807. Building 807 is approximately 10 m (30 ft) above sea level and accommodates several fixed and mobile launchers that range from 30 m (98 ft) to 150 m (492 ft) from the nearest shoreline. For these smaller vehicles, launch trajectories from Building 807 may range from 6 to 45 degrees and cross over the nearest beach at altitudes from 15 to 190 m (50 to 625 ft).

Sound measurements were collected from the launch of a BQM-34 at the Point Mugu Naval Air Station (NAS) in 1997. Burgess and Greene (1998) found that for this launch, the A-weighted SPL ranged from 92 dB (re 20 micro-Pa) (SEL of 102.2 dB re 20 micro-Pa2 -sec) at 370 m (1,200 ft) to 145 dB (re 20 micro-Pa) (SEL of 142.2 dB re 20 micro-Pa2 -sec) at 15 m (50 ft). These estimates are approximately 20 dB lower than that of a Vandal launch at similar distances (Greene, 1999). The measured Terrior Orion SPL ranged from 89 to 138 dB and the SEL from 93 to 138 dB, although the SPL/SEL of 138 dB appears to be anomalously high (Lawson, 2002). The SPL/SELs for the AGS launches ranged from 95 to 150 dB (93 to 137 dB SEL) and the RAM launch SPL was 126 dB (131 dB SEL). These measurements were all flat-weighted, meaning that A-weighted SPL/SELs values were several decibels lower.

Aircraft and helicopter flights between NAS on the mainland, the airfield on SNI and the target sites in the Sea Range will be a routine part of any planned launch operation. These operational flights do not pass at low level over the beaches where pinnipeds are expected to be hauled out. In addition, movements of personnel are restricted near the launch sites 2 hours prior to a launch, no personnel are allowed on the western end of SNI during Vandal and other vehicle launches, and various environmental protection restrictions exist near the island's beaches during other times of the year.

On May 9, 2003 (68 FR 24905), NMFS published a notice of proposed rulemaking on the Navy's application for an incidental take authorization and requested comments, information and suggestions concerning the request. During the 45-day public comment period, NMFS received comments from several members of the public and the Marine Mammal Commission (Commission). The letters from individuals did not raise significant issues on the proposed rule, and only expressed concern over missile launches based on an article in the media, so a response is not necessary. The Commission supports NMFS' intent to implement incidental take regulations for the Navy's activities on SNI provided that the mitigation and monitoring activities described in the NAWS petition for regulations are incorporated into the proposal.

Comment 1: The Commission requests clarification in the final rule document regarding the statement that mitigation measures would be followed when “operationally practicable.”

Response: The NAWS request noted that mitigation measures would be followed whenever operationally practicable, provided that doing so would not compromise operational safety requirements or mission goals. For example, the Navy will avoid night launches whenever the parameters of the test or training do not require a night launch. However, if a night launch is required by the parameters of the test, the Navy will need to launch at night. Last year, for example, the Navy raised the elevation on one launch from what was originally proposed and the objectives were still met. The problem is that the mitigation requirements cannot be unconditional; some tests may require night launching or launching in quick succession and some launches may require low azimuths, etc.

Comment 2: The Commission asks how the proposed mitigation measures satisfy the requirement of section 101(a)(5)(ii)(I) of the MMPA that the activity will result in the least practicable adverse impact on the subject species or stocks and their habitat.

Response: In order for NMFS to implement effective mitigation, it must determine that such measures would be practical. The practical mitigation measures identified by the NAWCD are provided later in this document (see Mitigation) and in more detail in the Final Environmental Assessment on the Navy Request for a Letter of Authorization (Final EA). These measures have been in place under previous and current IHAs for this activity. No comments were received during the public comment periods for this and previous authorizations that suggested additional practical mitigation measures, and NMFS is unaware of additional measures that could be imposed.

Comment 3: The Commission notes that NMFS is attempting to modify the statutory definition of Level B harassment to be only activities which pose “biologically significant disturbance” (i.e., “a disturbance of a behavior pattern that has the potential to have an effect on the reproduction or survival of the animal or species”). As the Commission has pointed out in several previous letters, the Commission believes that the proposed NMFS modification is contrary to the existing statutory definition of harassment.

Response: NMFS addressed the Commission's concern most recently in the notice of issuance of an IHA for Vandal launches from SNI (67 FR 56271, September 3, 2002). In addition, the scientific basis for determining the appropriate isopleths (lines of equal pressure) for the onset of marine mammal harassment can be found in the preamble to the proposed rule (68 FR 24905, May 9, 2003) and this document. For this action, NMFS agrees with the applicant that California sea lions and northern elephant seals will sometimes be harassed by launch sounds with SEL's of 100 dBA (re 20 micro-Pa2 -sec) or higher and Pacific harbor seals will sometimes be similarly harassed at an SEL of 90 dBA or higher. Pinnipeds inside those isopleths at the time of the missile launch are presumed to be harassed, whether or not an actual disturbance is noted. However, NMFS does not consider reactions such as a pinniped assuming an alert posture by raising its head or exhibiting other minor body movements to be level B harassment, because these kinds of behaviors are not disruptions of a biologically important behavior pattern. In contrast, sounds that cause some or all of the animals to move along the beach or leave a haul-out beach for the water would be harassment because there is a disruption of haulout activities. This is consistent with the MMPA definition of Level B harassment. NMFS is interested in receiving any scientific information indicating that pinnipeds are harassed at lower noise levels.

A detailed description of the Channel Islands/southern California Bight ecosystem and its associated marine mammals can be found in several documents (Le Boeuf and Brownell, 1980; Bonnell et al., 1981; Lawson et al., 1980; Stewart, 1985; Stewart and Yochem, 2000; Sydeman and Allen, 1999) and is not repeated here.

Many of the beaches in the Channel Islands provide resting, molting or breeding places for species of pinnipeds including: northern elephant seals (Mirounga angustirostris), harbor seals (Phoca vitulina), California sea lions (Zalophus californianus), northern fur seals (Callorhinus ursinus), and Steller sea lions (Eumetopias jubatus). On SNI, three of these species, northern elephant seals, harbor seals, and California sea lions, can be expected to occur on land in the area of the proposed activity regularly in large numbers during certain times of the year. Descriptions of the biology and distribution of these three species and others in the region can be found in NAWS (2002), Stewart and Yochem (2000, 1994), Sydeman and Allen (1999), Lowry et al. (1996), Schwartz (1994), Lowry (1999) and several other documents (Barlow et al., 1997; NMFS, 2000; NMFS, 1992; Koski et al., 1998; Gallo-Reynoso, 1994; Stewart et al., 1987). General information on harbor seals and other marine mammal species found in Central California waters can be found in Caretta et al. (2001, 2002), which are available at the following URL: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/ sars.html. Please refer to those documents and the application for further information on these species.

The effects of noise on marine mammals are highly variable, and can be categorized as follows (based on Richardson et al., 1995):

(1) The noise may be too weak to be heard at the location of the pinniped (i.e., lower than the prevailing ambient noise level, the hearing threshold of the animal at relevant frequencies, or both);

(2) The noise may be audible but not strong enough to elicit any overt behavioral response;

(3) The noise may elicit reactions of variable conspicuousness and variable relevance to the well being of the pinniped; these can range from temporary alert responses to active avoidance reactions such as stampedes into the sea from terrestrial haulout sites;

(4) Upon repeated exposure, pinnipeds may exhibit diminishing responsiveness (habituation), or disturbance effects may persist; the latter is most likely with sounds that are highly variable in characteristics, infrequent and unpredictable in occurrence (as are vehicle launches), and associated with situations that the pinniped perceives as a threat;

(5) Any anthropogenic noise that is strong enough to be heard has the potential to reduce (mask) the ability of pinnipeds to hear natural sounds at similar frequencies, including calls from conspecifics, and environmental sounds such as surf noise;

(6) If mammals remain in an area because it is important for feeding, breeding or some other biologically important purpose even though there is chronic exposure to noise, it is possible that there could be noise-induced physiological stress; this might in turn have negative effects on the well-being or reproduction of the animals involved; and

(7) Very strong sounds have the potential to cause temporary or permanent reduction in hearing sensitivity. In terrestrial mammals, and presumably marine mammals, received sound levels must far exceed the animal's hearing threshold for there to be any temporary threshold shift (TTS). For transient sounds, the sound level necessary to cause TTS is inversely related to the duration of the sound. Received sound levels must be even higher for there to be risk of permanent hearing impairment.

Sounds generated by the launches of Vandal and similar target missiles and smaller subsonic targets and missiles (BQM-34 or BQM-74 type), as they depart sites on SNI towards operational areas in the Point Mugu Sea Range, have the potential to result in the incidental harassment of seals and sea lions. Taking by harassment will potentially result from these launches when pinnipeds on the beaches near the launch sites are exposed to the sounds produced by the rocket boosters and the high-speed passage of the missiles as they depart the island on their routes to the Sea Range. However, the extremely rapid departure of the Vandal and other targets means that pinnipeds would be exposed to increased sound levels for very short time intervals (i.e., a few seconds). In addition, because launches are conducted relatively infrequently (i.e., approximately 40 launch events over the course of a year), neither physiological stress nor hearing related injuries are likely for pinnipeds exposed to more than a single launch event.

Noise generated from aircraft and helicopter activities associated with the launches may provide a potential secondary source of incidental harassment of seals and sea lions. The physical presence of aircraft could also lead to non-acoustic effects on marine mammals involving visual or other cues. There are no anticipated effects from human presence on the beaches, since movements of personnel are restricted near the launch sites two hours prior to launches for safety reasons.

Reactions of pinnipeds on the western end of SNI to Vandal target launches have not been well-studied, but based on monitoring studies conducted under the IHAs for this activity on SNI in 2001 and 2002, and on other rocket launch activities and their effects on pinnipeds in the Channel Islands (Stewart et al., 1993), anticipated impacts can be predicted. In general, studies have shown that responses of pinnipeds on beaches to acoustic disturbance arising from rocket and target missile launches are highly variable. This variability may be due to many factors, including species, age class, and time of year. Among species, northern elephant seals seem very tolerant of acoustic disturbances (Stewart, 1981), whereas harbor seals (particularly outside the breeding season) seem more easily disturbed. Research and monitoring at Vandenberg Air Force Base found that prolonged or repeated sonic booms, very strong sonic booms, or sonic booms accompanying a visual stimulus, such as a passing aircraft, are most likely to stimulate seals to leave the haul-out area and move into the water. During three launches of Vandal missiles from SNI, California sea lions near the launch track line were observed from video recordings to be disturbed and to flee (both up and down the beach) from their former resting positions. Launches of the smaller BQM-34 targets from NAS have not normally resulted in harbor seals leaving their haul-out area at the mouth of Mugu Lagoon, which is approximately 3.2 km (2 mi) from the launch site. An Exocet missile launched from the west end of SNI appeared to cause far less disturbance to hauled out California sea lions than Vandal launches.

Given the variability of pinniped responses to acoustic disturbance, as supported by recent IHA monitoring (Lawson et al., 2002), the Navy (NAWS, 2002) assumes that Level B harassment, as evidenced by beach flushing, will sometimes occur upon exposure to launch sounds with SEL's of 100 dBA (re 20 micro-Pa2 -sec) or higher for California sea lions and northern elephant seals and 90 dBA for Pacific harbor seals.

A conservative estimate of the SEL at which TTS may be elicited in harbor seals, California sea lions and northern elephant seals has been determined to be 145 dB (re 20 micro-Pa2 -sec) and 165 dB (re 20 micro-Pa2 -sec), respectively (Lawson et al., 1998). The sound levels necessary to elicit mild TTS in captive California sea lions and harbor seals exposed to impulse noises, such as sonic booms, were tens of decibels higher (Bowles et al., 1999) than sound levels measured during Vandal launches (Burgess and Greene, 1998; Greene, 1999). This evidence, in combination with the known sound levels produced by vehicles launched from SNI, suggests that no pinnipeds will be exposed to TTS-inducing SELs during planned launches.

Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories, and General category effort controls (including time-period subquotas and restricted fishing days (RFDs)) are specified annually under 50 CFR 635.23(a) and 635.27(a). The 2003 BFT Quota Specifications and General category effort controls were proposed on July 10, 2003 (68 FR 41103).

Under § 635.23 (a)(4), NMFS may increase or decrease the General category daily retention limit of large medium and giant BFT over a range from zero (on RFDs) to a maximum of three per vessel to allow for maximum utilization of the quota for BFT. Based on a review of dealer reports, daily landing trends, available quota, and the availability of BFT on the fishing grounds, NMFS has determined that an increase of the daily retention limit for the September time-period is appropriate and necessary to maximize use of the full, adjusted September subquota. Based on current and historical General category landings rates in the June through August time-period, it is highly unlikely that the June through August subquota will be filled in the remaining fishing days. At current catch rates and a daily retention limit of one BFT per vessel, it is also unlikely that the adjusted September subquota will be attained in the September time-period. Therefore, NMFS adjusts the General category daily retention limit through September 30 to two large medium or giant BFT per vessel.

The intent of this adjustment is to allow for maximum utilization by General category participants of the subquota for the September time-period (specified under 50 CFR 635.27(a)), (which has been adjusted by the quota carryover from the June through August time-period subquota), to help achieve optimum yield in the General category fishery, to collect a broad range of data for stock monitoring purposes, and to be consistent with the objectives of the HMS FMP.

Closures or subsequent adjustments to the daily retention limit, if any, will be published in the Federal Register. In addition, owners/operators may call the Atlantic Tunas Information Line at (888) 872-8862 or (978) 281-9305 for updates on quota monitoring and retention limit adjustments.

The Assistant Administrator for Fisheries, NOAA (AA), finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action. Catch rates for the 2003 BFT season have been extremely low and, at the current rate of landings, it is highly unlikely that the available quota will be harvested by September 30, 2003. Delaying this action would further exacerbate this problem. Large amounts of unharvested quota will have negative social and economic impacts to U.S. fishermen that depend upon catching the available quota within the time periods designated in the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, and because this action relieves a restriction (i.e., allows the retention of more fish), there is also good cause under 5 U.S.C. 553(d) to waive the delay in effectiveness of this action.

This action is being taken under 50 CFR 635.23(a)(4) and is exempt from review under Executive Order 12866.

Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned on a percentage basis among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.100.

The initial total commercial quota for summer flounder for the 2003 calendar year was set equal to 13,980,028 lb (6,341,235 kg)(68 FR 60, January 2, 2003). The percent allocated to vessels landing summer flounder in Massachusetts is 6.82046 percent, resulting in an initial commercial quota of 953,502 lb (432,501 kg). The 2003 allocation was adjusted downward due to an overage of the 2002 quota of 42,498 lb (19,277 kg) as of October 31, 2002. The resulting adjusted 2003 commercial quota for Massachusetts is 911,004 lb (413,229 kg). The 2003 allocation was further reduced to 907,274 lb (411,537 kg) due to research set-aside.

Section 648.101(b) requires the Administrator, Northeast Region, NMFS (Regional Administrator) to monitor state commercial quotas and to determine when a state's commercial quota has been harvested. NMFS then publishes a notification in the Federal Register to advise the state and to notify Federal vessel and dealer permit holders that, effective upon a specific date, the state's commercial quota has been harvested and no commercial quota is available for landing summer flounder in that state. The Regional Administrator has determined, based upon dealer reports and other available information, that Massachusetts has harvested its quota for 2003.

The regulations at § 648.4(b) provide that Federal permit holders agree, as a condition of the permit, not to land summer flounder in any state that the Regional Administrator has determined no longer has commercial quota available. Therefore, effective 0001 hours, September 2, 2003, further landings of summer flounder in Massachusetts by vessels holding summer flounder commercial Federal fisheries permits are prohibited for the remainder of the 2003 calendar year, unless additional quota becomes available through a transfer and is announced in the Federal Register. Effective 0001 hours, September 2, 2003, federally permitted dealers are also notified that they may not purchase summer flounder from federally permitted vessels that land in Massachusetts for the remainder of the calendar year, or until additional quota becomes available through a transfer.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

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

The C season allowance of the pollock TAC in Statistical Area 630 is 3,517 metric tons (mt) as established by the final 2003 harvest specifications for groundfish of the GOA (68 FR 9924, March 3, 2003). In accordance with § 679.20(a)(5)(iii)(B), the Administrator, Alaska Region, NMFS, (Regional Administrator) hereby reduces the C season pollock TAC by 387 mt, the amount of the harvest previously taken in excess of the A and B season pollock allowances in Statistical Area 630 and split equally between the C and D seasons. The revised C season allowance of pollock TAC in Statistical Area 630 is therefore 3,130 mt (3,517 mt minus 387 mt).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the revised C season allowance of the pollock TAC in Statistical Area 630 has been reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 3,080 mt, and is setting aside the remaining 50 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 of the GOA.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to exceeding the C season TAC in Statistical Area 630, and therefore reduce the public's ability to use and enjoy the fishery resource.

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

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

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

The Sustainable Fisheries Act of 1996 (Public Law 104—297) effected numerous amendments to the Magnuson-Stevens Act, including the addition of a new National Standard 9. This standard requires that conservation and management measures, to the extent practicable, (A) minimize bycatch and, to the extent bycatch cannot be avoided, (B) minimize the mortality of such bycatch. In response to National Standard 9 the Council adopted a regulatory program in 1997 to reduce the amount of groundfish discards in the groundfish fisheries off Alaska. This program, known as the Improved Retention/Improved Utilization (IR/IU) Program, was adopted as Amendment 49 to the FMP. The IR/IU program requires that vessels fishing for groundfish in Alaska retain all pollock and Pacific cod beginning in 1998 when directed fishing for those species is open. Under Amendment 49, the IR/IU program expanded on January 1, 2003, to include all rock sole and yellowfin sole in the BSAI (flatfish IR/IU).

As the effective date of flatfish IR/IU approached, industry representatives testified to the Council that some sectors of the BSAI trawl fleet would not be able to accommodate full retention and utilization of rocksole and yellowfin sole due to insufficient markets and/or processing constraints and costs. Thus, flatfish IR/IU would force vessel owners to choose to no longer participate in the BSAI fisheries. In response, the Council initiated an analysis to assess these concerns and whether alternative management programs could be implemented by January 1, 2003, to reduce discard rates while still providing for historical participation in the BSAI fisheries.

In October 2002, the Council concluded that while several alternative proposals under consideration showed merit, they were not sufficiently developed and analyzed in a manner that would allow for implementation on January 1, 2003. Therefore, the Council adopted a preferred alternative for Amendment 75 to the FMP to delay implementing the 100-percent retention requirements for rock sole and yellowfin sole until June 1, 2004. The intent of this action was to provide the Council and industry with additional time to develop alternative regulatory proposals to reduce discard amounts.

The Council submitted Amendment 75 for review by the Secretary of Commerce and a Notice of Availability of the FMP amendment was published in the Federal Register on February 28, 2003 (68 FR 9630). Comments on this proposed Amendment were invited through April 29, 2003. The proposed rule was published on March 28, 2003 (68 FR 15144), and was followed by a notice of additional supplementary information on April 18, 2003 (68 FR 19182), to summarize additional information on the Initial Regulatory Flexibility Analysis (IRFA). Comments on the proposed rule and supplementary information were invited through May 12, 2003. NMFS received 4 letters by the end of the comment periods on the proposed amendment and its implementing rule, all requesting an indefinite delay or removal of the flatfish IR/IU requirement for the BSAI groundfish fisheries. These comments are summarized and responded to in the Response to Comments section, below.

A summary of the analysis on Amendment 75, including the Council's preferred alternative, was provided in the proposed rule (68 FR 15144, March 28, 2003) and the Notice of Availability of Supplemental Information (68 FR 19182 April 18, 2003). On May 29, 2003, the Secretary of Commerce partially approved the Council's preferred alternative for Amendment 75. In doing so, the Secretary continued the IR/IU program for pollock and Pacific cod, but delayed indefinitely the flatfish IR/IU program by removing reference to this program from the FMP. Full approval of the Council's preferred alternative would have been inconsistent with the Administrative Procedure Act, which requires that the administrative record for an action include an explanation of the rational connection between the analysis and decision. The administrative record for Amendment 75 shows that if flatfish IR/IU regulations were to be implemented after the 18-month delay date of June 2004, they would result in significant adverse economic impacts on some participants in the groundfish fisheries. However, the record for this action does not show how overall benefits outweigh the costs. Approval of Amendment 75 also would have resulted in significant adverse economic impacts that are inconsistent with the problem statement for Amendment 75, National Standard 7 and National Standard 9. Thus, partial approval of Amendment 75 was necessary to provide sufficient opportunity for the Council to either develop a record for Amendment 75 or develop other options for refining the IR/IU program, without the immediate imposition of full retention of IR/IU flatfish species in the BSAI.

This final rule would remove regulatory requirements for retention and utilization of rock sole and yellowfin sole in the BSAI. No other regulatory actions are contained in this final rule.

This final rule differs from the proposed rule in that it does not include a delay in the implementation of the IR/IU retention and utilization requirements for rock sole and yellowfin sole in the BSAI. Instead, regulatory provisions for flatfish IR/IU are removed. This change is necessary to conform regulations to the partial approval of Amendment 75.

The proposed rule to implement Amendment 75 was published on March 28, 2003 (68 FR 15144), with comments invited through May 12, 2003. NMFS received 4 comment letters on the proposed rule, all of which address the adverse economic implications of the BSAI flatfish IR/IU program.

Comment: NMFS should rescind the flatfish IR/IU program in the BSAI, or put it on indefinite hold, because a delay until June 2004 will not provide sufficient time to implement alternative strategies to reduce discards of these species. Furthermore, significant progress already has been made voluntarily to reduce discards since 1997. The non-American Fisheries Act trawl catcher processor fleet alone has reduced yellowfin sole and rock sole discards by over 40 percent during the past 5 years.

Response: As explained above, the Secretary has determined that the proposed delay of the flatfish IR/IU program was inconsistent with the Administrative Procedure Act and National Standards 7 and 9. Thus, the existing provisions for flatfish IR/IU in the BSAI were removed from the FMP and its implementing regulations.

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

The Council prepared an initial regulatory flexibility analysis (IRFA) that described the economic impact of the proposed rule, if adopted, would have on small entities. A summary of the IRFA was included in the Notice of Availability of Supplementary Information (68 FR 19182, April 18, 2003). The IRFA identified small and large entities that could be affected by the proposed rule and associated alternatives in the analysis. In Alternative 1 (the status quo) the imposition of a 100 percent IR/IU flatfish retention standard for rock sole and yellowfin sole in the BSAI would decrease revenues of small vessels while having little impact on larger vessels. This reduction in revenues could cause some of the smaller sized head and gut trawl catcher/processor vessels to exit fisheries in which these species are caught. Alternative 2, which would have allowed some discards of flatfish species, was anticipated to have some economic and operational impacts on small entities, but also was deemed to be impossible to enforce. Alternative 3 would have delayed imposition of IR/IU flatfish rules for up to 3 years, with the expectation that some form of fishing cooperative system would ease the economic burden of IR/IU flatfish rules in the BSAI. Alternative 4 would have exempted selected fisheries from IR/IU flatfish regulations based upon historical flatfish discard rates, but this would not mitigate the immediate burden on small head and gut catcher/processor vessels. The Council's preferred alternative was a modification of Alternative 3 that proposed a delay of IR/IU flatfish regulations for 18 months to temporarily ease the economic burden of flatfish IR/IU but ultimately would impose the full economic burden, unless other mitigating regulatory actions were to be implemented before the date that IR/IU flatfish rules would be implemented. No comments were submitted in response to the IRFA.

NMFS prepared a final regulatory flexibility analysis (FRFA) for the partial approval of Amendment 75 that contains the items specified in 5 U.S.C. 604(a). The FRFA consists of the IRFA, the comments and responses to the proposed rule, and the analyses completed in support of this action. A copy of the IRFA is available from the Council (see ADDRESSES). The preamble to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated in its entirety here.

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

No public comments were received that related to the IRFA on this rule. Although 4 comments were received on the general economic impacts of the IR/IU program, these comments were not specific to the analyses contained in the IRFA. For a summary of the comments received, refer to the section above titled “Comments and Responses.”

A description and estimate of the number of small entities to which the rule will apply is provided in the IRFA and IRFA summary contained in the Classification section of the proposed rule and in the notice of additional supplementary information and is not repeated here. The final rule has been modified from the proposed rule and the FRFA includes an analysis of the approved alternative that would permanently mitigate the impacts of flatfish IR/IU upon small entities by removing all reference to flatfish IR/IU in the BSAI FMP and implementing regulations. The number of small entities to which the rule will apply has not been affected by these changes.

A description of projected reporting, recordkeeping, and other compliance requirements is provided in the IRFA and IRFA summary contained in the Classification section of the proposed rule and is not repeated here.

Environmental impacts of the alternatives, including the Council's preferred Alternative and the Approved alternative, are expected to be insignificant based on the information and assessments are contained in Chapter 2 of the EA/RIR/FRFA. The Council's preferred alternative, and alternatives 1 through 4, would not have fully mitigated the adverse economic effects of IR/IU rules for flatfish on small entities because neither the Council nor the Secretary could guarantee that mitigating actions would have relieved the costs of full retention of IR/IU flatfish species by June 2004. The partial approval action of May 2003, will allow the benefits of the economic activity associated with these fisheries to accrue to vessel operators, crew and fishing communities, until the Council chooses to implement new IR/IU policies. Furthermore, the partial approval action will provide Council, industry, and the managing agencies time to develop measures that may meet bycatch reduction needs, while allowing the industry to continue to provide fishery benefits to the nation. A copy of this analysis is available from NMFS (see ADDRESSES).

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. This paragraph serves as the small entity compliance guide. Small entities are not required to take any additional actions to comply with this action. This action does not require any additional compliance from small entities. Copies of this final rule are available from NMFS (see ADDRESSES) and at the following web site: http://www.fakr.noaa.gov/

Alaska, Fisheries, Recordkeeping and reporting requirements.