As published, the final rule entitled “List of Approved Spent Fuel Storage Casks: Standardized NUHOMS®-24P, -52B, -61BT, -24PHB, and -32PT Revision” (January 7, 2004; 69 FR 849) contains an omission in § 72.214 which need to be added.

On March 4, 2003, DOE published a notice of proposed rulemaking (NOPR) announcing its proposed determination not to promulgate regulations requiring private and local government fleets to acquire alternative fueled vehicles (AFVs). See 68 FR 10320. In the same notice, DOE also stated that it intended to forgo a determination concerning the achievability of the replacement fuel goals contained in EPAct. The NOPR invited the public to submit written comments and announced that DOE also would hold a hearing to receive public comment. In response, five written comments were submitted, and four statements were given at the public hearing held on May 7, 2003. The final rule issued today summarizes the comments received by DOE, and includes DOE's responses.

This final rule fulfills DOE's obligation under section 507(e) of EPAct (42 U.S.C. 13257(e)) to conduct a rulemaking to determine whether a private and local government fleet rule is necessary. DOE's final rule determines that a regulation requiring private and local government fleets to acquire AFVs is not “necessary” and, therefore, cannot be promulgated. The necessity determination is based on DOE's findings that a private and local government fleet vehicle acquisition mandate would not appreciably increase the percentage of alternative fuel or replacement fuel used in motor vehicles in the United States and thus would make no more than a negligible contribution to the achievement of EPAct's existing 2010 replacement fuel goal of 30 percent, or of a revised replacement fuel goal were one adopted.

The finding that the regulation by itself, if adopted, would not result in a meaningful increase in the percentage of alternative fuel or replacement fuel used by motor vehicles is based on the following factors. First and foremost, DOE has concluded that the number of fleets that would be covered by a private and local government fleet mandate and the number of AFV acquisitions that would occur in those fleets as a result of the mandate are too small to cause more than a negligible increase in the percentage of replacement fuel that is used as motor fuel. This is due in part to the limitations EPAct imposes on DOE's authority to promulgate a private and local government fleet AFV acquisition mandate. For example, a private and local government fleet program could only apply to light-duty vehicles ( i.e. , less than or equal to 8,500 lbs. gross vehicle weight rating (GVWR)) and fleets of sufficient size that are located in certain metropolitan areas, and could not apply to a number of excluded vehicle classes and types ( e.g. , rental vehicles, emergency vehicles, and vehicles garaged at residences overnight). It should be noted that automakers are already annually manufacturing several times the number of AFVs that would be required under this program. As a result, it is quite possible that a private and local government AFV acquisition mandate would not increase AFV production or sales at all, but rather would simply change the identity of the buyers of the vehicles. Therefore, increases in the production of AFVs due to the requirements of this fleet program are unlikely to occur.

Second, EPAct is structured such that even fleets potentially covered by a fleet mandate may avoid some or all of the acquisition requirements, if they qualify for one of the numerous exemptions set forth in the statute. This situation would still be expected to be an issue even if manufacturers continue to manufacture large numbers of FFVs because, in addition to requiring the right volume of AFVs, implementation of a fleet mandate would require the availability of the right combinations of vehicle models and alternative fuel types to meet fleets' operational needs. Based on experience with its existing fleet programs, DOE has found that the availability of some important vehicle types continues to be limited.

Third, even if DOE promulgated a private and local government fleet AFV acquisition mandate and substantial numbers of AFVs were acquired as a result, there is no assurance that the AFVs acquired by covered fleets would actually use replacement fuel. EPAct does not give DOE authority to require that vehicles acquired by private and local government fleets use any particular fuel. Moreover, DOE's experience with implementation of the Federal fleet, State fleet, and alternative fuel provider fleet programs required by EPAct leads DOE to conclude that given the current alternative fuel infrastructure and high alternative fuel costs relative to conventional motor fuels (despite availability of large total numbers of AFVs), market forces would prevent more than a very small increase in replacement fuel use in covered fleets, even if DOE were to impose a private and local government fleet AFV vehicle acquisition requirement.

In the March 2003 NOPR, DOE also indicated that it did not intend in this rulemaking to revise the replacement fuel goals in EPAct, which call for replacement fuels to make up 10 percent and 30 percent of the total motor fuel used in the U.S. by 2000 and 2010, respectively. “Replacement fuel” is defined by EPAct to mean “the portion of any motor fuel that is methanol, ethanol, or other alcohols, natural gas, liquefied petroleum gas, hydrogen, coal derived liquid fuels, fuels (other than alcohol) derived from biological materials, electricity (including electricity from solar energy), ethers,” or any other fuel that the Secretary determines “is substantially not petroleum and would yield substantial energy security benefits and substantial environmental benefits.” “Alternative fuel” is defined to include many of the same types of fuels (such as methanol, ethanol, natural gas, liquid fuels domestically produced from natural gas, hydrogen and electricity), but also includes certain “mixtures” of alternative fuels blended with small portions of petroleum-based fuel and “any other fuel the Secretary [of Energy] determines by rule, is substantially not petroleum and would yield substantial energy security benefits and substantial environmental benefits.” (42 U.S.C. 13211) For example, a mixture of 85 percent methanol and 15 percent gasoline (by volume) would, in its entirety, constitute “alternative fuel,” but only the 85 percent that was methanol would constitute “replacement fuel.” Also by way of example, gasohol (a fuel blend typically consisting of approximately 10 percent ethanol and 90 percent gasoline by volume), considered as a total fuel blend, would not qualify as an “alternative fuel,” but the 10 percent that is ethanol would qualify as “replacement fuel.”

In carrying out the rulemaking proceeding contemplated in section 507(e) of EPAct (42 U.S.C. 13257(e)), DOE is authorized to evaluate the replacement fuel goals and to modify them if they are not “practicable and actually achievable * * * through implementation of * * * a fleet requirement program * * *” and other means. DOE has concluded that it is not legally required to propose and finalize a revision of the replacement fuel goal as part of this rulemaking proceeding because, as indicated in the NOPR and in this final rule, the adoption of a revised goal would not impact its determination that a private and local government rule establishing a section 507(e) “fleet requirements program” would not provide any appreciable increase in replacement fuel use and is therefore not “necessary” within the meaning of section 507(e) of EPAct. DOE, however, will continue to evaluate this matter and may, if appropriate, modify the goals in the future. In the alternative, assuming arguendo that DOE is required to consider whether to revise the replacement fuel goal, DOE declines to revise for good cause, as explained below.

In addition, apart from the terms of section 507(e), DOE declines to broaden the scope of this rulemaking to encompass goal revision under section 504 because it is not an appropriate time to initiate such a rulemaking. A review of the current status of replacement fuels and alternative fuels reveals that only about 3 percent of total motor fuel use is non-petroleum. The NOPR acknowledged that meeting the 2010 goal of 30 percent would require extraordinary measures. DOE also expressed its belief that EPAct's replacement fuel goal is intended to establish an aggressive aspirational petroleum reduction target for the Federal government and the public. Based on its understanding of the purpose of the goal, DOE stated that it would be inappropriate and ill-advised to propose revising the goal downward at a time when the Administration and Congress are considering (and in some cases, already implementing) the passage of major new energy initiatives. These initiatives, discussed in greater detail in today's final rule, could significantly impact transportation motor fuel use and would have an important influence on any future replacement fuel goal. Based on these factors, DOE has decided that initiating a rulemaking to modify the replacement fuel goal at this time is not appropriate.

The final rule issued today addresses the March 4, 2003, NOPR and the comments received in response to it. It does not summarize the extensive actions that took place prior to March 4, 2003, with respect to this rulemaking. A detailed summary of those rulemaking proceedings is contained in the March 4, 2003, notice. In addition, DOE has established a Web site that contains information relating to this rulemaking activity. Persons interested in learning more about this rulemaking and its history should review the items contained on the Web site: http://www.ott.doe.gov/epact/private_fleets.shtml.

In response to DOE's NOPR, five written comments were submitted, and four statements were given at the public hearing. The American Automobile Leasing Association (AALA), Congressman Joe Barton (R-TX), the Center for Biological Diversity (Center), the Electric Drive Transportation Association (ETDA), and Mr. J.E. Barker (Fleet Manager, City of Gadsden, Alabama), submitted written comments. The following individuals or organizations provided statements at the public hearing: AALA, the National Association of Fleet Administrators (NAFA), and Nic van Vuuren (Hampton Roads Clean City Coordinator). Two individuals presented separate testimonies on behalf of NAFA at the public hearing. The comments and statements are available on DOE's Web site.

These comments and statements can primarily be grouped according to whether they support or oppose DOE's proposed determination regarding adoption of a private and local government fleet mandate and the decision not to revise the replacement fuel goals contained in EPAct. However, the comments submitted by EDTA are not summarized below because they do not speak directly to the issues relevant to a determination under section 507(e) of EPAct. EDTA's comments instead urge DOE to support the adoption of incentives and to develop other programs that encourage the increased use of AFVs and alternative fuels.

The coordinator for the Hampton Roads Clean Cities Coalition (Nic van Vuuren), Mr. J.E. Barker (Fleet Manager, City of Gadsden, Alabama), and the Center each submitted comments opposing the proposed determination not to promulgate a new fleet rule. Mr. van Vuuren stated that DOE's NOPR ignores the fact that fleet AFV programs, including a private and local government fleet mandate, were intended to be a “foundation for voluntary efforts,” and were not expected by themselves to achieve the petroleum use reduction goals in EPAct. He also stated that the purpose of the replacement fuel goal in EPAct is not to achieve a specific percentage of petroleum replacement, but rather to further petroleum replacement in general. Therefore, he asserted that a private and local government fleet AFV acquisition requirement is necessary because it would contribute generally to petroleum replacement, even if it would not result in the achievement of the levels established in EPAct.

As DOE indicated in the NOPR, the existing fleet programs generate demand for AFVs and alternative fuels to some extent and, in fact, account for a significant share of the existing market for each. However, EPAct establishes a much higher bar than that before DOE can promulgate a private and local government fleet regulation. Under section 507(e) of EPAct, it is not enough that a private and local government fleet AFV acquisition mandate simply increase the level of alternative or replacement fuel used; rather, in order for a mandate to be promulgated DOE must find that the 2010 goal actually is achieved “through implementation of such a fleet requirement program in combination with voluntary means and the application of other programs * * *.” (42 U.S.C. 13257(e)).

As indicated in the NOPR, DOE estimates that implementation of the private and local government fleet AFV acquisition mandate could result in between 0.20-0.80 percent petroleum replacement. ( See 68 FR 10339.) Several of the comments focused on the fact that the NOPR included an estimate that the private and local government fleet AFV acquisition mandate could potentially replace 1 percent of petroleum motor fuel use. However, the NOPR indicated that the 1 percent estimate overstates the potential impact that the program would have because the 1 percent estimate does not include motor fuel used in heavy-duty vehicles, primarily diesel fuel. If both light- and heavy-duty vehicle motor fuel use is considered, the maximum amount of replacement fuel use expected to result from a private and local government AFV acquisition mandate—even if EPAct required the AFVs to use alternative fuel—is only about 0.70-0.80 percent. While the Center questioned DOE's assertion that it could not require fuel use and expressed the view that DOE's fuel use projections were low, neither the Center nor any other commenter supplied any data or information to demonstrate that DOE's estimate was in error.

In DOE's view, the high relative cost of most alternative fuels makes it unlikely that the adoption of a private and local government fleet regulation would lead other fleets to voluntarily adopt alternative fuel programs or that some local governments might, as the coordinator for Hampton Roads indicated, adopt fuel use programs to compliment the vehicle acquisition requirement. In fact, representatives of fleet associations vigorously contested the idea that their members would voluntarily participate in any programs as long as the threat of future mandates exists.

The Center also submitted comments opposing DOE's proposed determination regarding whether to promulgate a private and local government fleet regulation. The Center commented that an AFV acquisition mandate for private and local government fleets “will have a profound effect on the market for AFVs and alternative fuels.” The Center asserted that a private and local government fleet regulation, if adopted, would significantly expand the number of AFVs acquired annually. However, the key consideration with respect to whether a private and local government fleet rule is necessary is not the number of AFVs that are acquired each year, but rather the resulting percentage of motor fuel use that will be replacement fuel. Thus, the number of AFVs that would be acquired under the program is largely irrelevant to the question of whether such a rule is “necessary” as that term is used in section 507(e).

The Center also argued that even if the private and local government fleet rule only provided a 1 percent reduction in petroleum consumption, this would not be insignificant given the amount of oil the U.S. consumes. This comment appears to imply that DOE could adopt a private and local government fleet regulation regardless of the actual amount of replacement fuel use that might result, and that a 1 percent reduction would be sufficient to justify the rule. As indicated above, the 1 percent estimate was based on earlier estimates of the potential impact of a private and local government fleet rule and it did not take into account fuel used in heavy-duty vehicles. As explained in the NOPR, DOE's analysis indicates that a private and local government fleet AFV acquisition mandate would replace at best between 0.20-0.80 percent of motor fuel consumption, with the probable amount toward the lower end of this range. ( See 68 FR 10339.) In DOE's view, this amount of petroleum replacement is not sufficient to warrant such a program, and certainly is not enough to render the program “necessary” under the standards set forth in EPAct section 507(e).

The Center also argued that DOE underestimates the potential impact that a private and local government fleet rule would have by incorrectly concluding in the March 4, 2003 NOPR that DOE does not have legal authority to require private and local government fleets to use alternative fuels in their AFVs. In the NOPR, DOE said the following:

The only explicit requirement for fuel use in EPAct is contained in section 501, which extends only to alternative fuel provider fleets. Section 501(a)(4) states that “vehicles purchased pursuant to this section shall operate solely on alternative fuels except when operating in an area where the appropriate alternative fuel is unavailable.” Section 507, which concerns private and local fleets, does not contain similar provision, nor does it contain a provision either authorizing DOE to mandate fuel use or explicitly prohibiting DOE from mandating fuel use. Therefore, DOE recognizes that it may be argued that section 507's silence leaves the issue of imposing a requirement to use alternative fuel open to DOE rulemaking authority.

However, DOE believes the more appropriate interpretation is that, because Congress specifically required the use of alternative fuel in section 504(a)(4), but not in section 507, the omission was deliberate. As a result, DOE believes that Congress did not intend for DOE, when acting under section 507, to have the authority to promulgate regulations containing a requirement that fleet vehicles use particular types of fuel.

Although this textual analysis is sufficient to support DOE's determination that it should not impose a fuel use requirement under section 507(e) and (g), it also is worthwhile to revisit Congressman Philip Sharp's remarks when he called up the conference report on EPAct for House approval. Congressman Sharp was one of the key architects of EPAct, and the floor manager for the bill in the U.S. House of Representatives. Congressman Sharp said:

Thus, Congressman Sharp's floor statement is fully consistent with DOE's interpretation that it does not have statutory authority to mandate fuel use under section 507 fleet program, and that in enacting section 507, Congress specifically intended to withhold that authority from the agency.

In evaluating the correctness of the foregoing statutory interpretation, DOE notes that the Center in its comments did not respond directly to the points that DOE made in the NOPR. The Center did not contest the relevance of either DOE's textual comparison of sections 501 and 507 or the legislative history DOE quoted.

The Center instead relies exclusively on the text of section 507(g)(4) as the basis for its argument that DOE has authority under EPAct to require private and local government fleets to use alternative fuels in their AFVs. EPAct section 507(g)(4) reads as follows:

DOE believes that section 507(g)(4) is best read not as having the meaning ascribed to it by the Center, but rather as authorizing DOE to allow certain vehicles capable of (and thus necessarily) operating only on gasoline to be treated as AFVs for purposes of a fleet program promulgated under EPAct sections 507(b) and 507(g). The text, structure and context of section 507(g)(4) strongly militate against the construction of this section advanced by the Center, and in favor of DOE's construction.

DOE reads section 507(g)(4) as imposing the general rule, which is consistent with EPAct's definition of an AFV, that vehicles capable of and thus necessarily operating only on gasoline ordinarily may not be counted as AFVs. However, section 507(g)(4) allows DOE to treat some such vehicles as AFVs for purposes of a section 507 fleet program if it determines to do so after taking into consideration the impacts on energy security and the goals stated in EPAct section 502(a). Section 507(g)(4) thus was intended to allow DOE to mitigate the effect that a private and local government fleet rule otherwise might have on covered fleets under certain circumstances by expanding, not limiting, the vehicles that could be counted as AFVs for purposes of section 507. Therefore, DOE rejects the Center's argument that DOE mistakenly interpreted its authority under section 507(g)(4), and thus underestimated the amount of replacement fuel use that would result from a private and local government fleet program. If anything, DOE has overestimated resulting replacement fuel use by not accounting for the possibility that certain vehicles capable of operating solely on gasoline could be classified as AFVs for purposes of this program.

The Clean Air Act (CAA) Title II, Part C (the part of the CAA cited in EPAct section 507(g)(4)) addresses clean fuel vehicles and clean fuel fleets. Significantly, vehicles powered only by reformulated gasoline can meet the requirements of this Part, so long as they meet certain emission requirements. However, reformulated gasoline is not listed in EPAct as an alternative fuel, and because it is 80-90 percent petroleum, DOE previously has determined (in the notice of final rulemaking that established 10 CFR Part 490) that it cannot be designated as an “alternative fuel” under EPAct because it is “substantially petroleum.” Under EPAct section 301(2), DOE has the authority to add fuels to the statutory definition of “alternative fuel” only if, among other things, the fuel “is substantially not petroleum'; the same is true with respect to “replacement fuel” under EPAct section 301(14).

DOE interprets section 507(g)(4) as authorizing DOE to allow a vehicle capable of operating only on gasoline and complying with the applicable clean fuel vehicle requirements under Title II of the CAA to be treated as an AFV for purposes of a fleet program under section 507, notwithstanding the exclusion of reformulated gasoline and diesel from EPAct's definition of “alternative fuel,” and even though the vehicle otherwise could not be counted as an AFV for purposes of an EPAct fleet program. This interpretation makes sense because, among other reasons, section 507(g)(4) explicitly provides that DOE can make this allowance only for fleets subject to both the EPAct section 507 and CAA Title II fleet programs. Given this interpretation, section 507(g)(4) does not mean, as the Center claims, that DOE has underestimated the amount of replacement fuel use that would result from a private and local government fleet rule. Rather, section 507(g)(4) provides DOE with authority which, if exercised, would reduce, not increase, the amount of replacement fuel use resulting from a private and local government fleet rule. DOE's interpretation is further supported by the fact that section 507(g)(4) appears in section 507 among various other subsections the clear object of which is to relieve the potential burdens that a private and local government fleet rule would place on covered fleets.

As DOE explained above, Congress displayed a willingness and ability to impose a fuel use requirement when and where it intended to do so, as it did in EPAct section 501. EPAct section 507(g)(4) does not contain any such explicit requirement. In light of the explicit terms with which Congress mandated fuel use in section 501, it would be incorrect to stretch the words of section 507(g)(4) to find a fuel use requirement, or an authorization for DOE to impose one.

Moreover, it is difficult to understand how the Center's proposed interpretation even makes sense or could be administered in practice. Dual fueled vehicles are by definition capable of operating on either alternative fuel or on gasoline or diesel; yet at any particular time a dual fueled vehicle is “operating only” (to use the words of section 507(g)(4)) on one particular fuel. Thus, if the Center's interpretation of section 507(g)(4) were to be adopted and DOE were to exercise its alleged authority to require covered fleets to use alternative fuels in their AFVs, a dual fueled vehicle would no longer be considered to be an AFV at any particular time it was operating on gasoline. Therefore, again under the Center's interpretation, the section potentially would prohibit (or authorize DOE to prohibit) a vehicle from being considered an AFV during any period in which it was in fact operated on gasoline, but allow the vehicle to be considered an AFV during any period of time when it was operated on an alternative fuel.

This interpretation would make section 507(g)(4) impossible to administer in practice. The Center has not indicated how such a requirement could be enforced, nor how vehicles operating on alternative fuels some of the time and gasoline at other times would be counted. Similarly, the Center did not clarify how a dual fueled vehicle would be counted when it was not operating at all— i.e. , when it was being garaged overnight. And since section 507(g)(4) speaks in terms of vehicles operated only on gasoline, its unclear how the Center would propose that DOE treat vehicles operating some or all of the time on diesel. Finally, the Center has not indicated if section 507(g)(4) should be interpreted as calling for the peculiar result of allowing dual fueled vehicles operating all of the time on diesel to be counted as AFVs, but prohibiting dual fueled vehicles operating all of the time on gasoline from being counted as AFVs. Neither the Center nor any other commenter addressed these issues.

Finally, DOE is of the view that it would be inappropriate, as a matter of policy, to interpret section 507(g)(4) as authorizing DOE to impose a broad restriction on the use of gasoline in dual fueled vehicles for the purposes of a section 507 fleet program. DOE's interpretation of section 507(g)(4) is in keeping with the purpose of section 507, which is to promote acquisition of AFVs as a means of achieving replacement fuel goals while protecting covered fleets from bearing unfair financial burdens. The Center's proposed interpretation would result in imposition on private and local fleet operators of an unfunded mandate in the form of the higher costs of purchasing alternative fuels. Unfunded regulatory mandates of this nature have been disfavored at least since the enactment of the Unfunded Mandates Reform Act of 1995.

In summary, DOE believes its interpretation of section 507(g)(4) is both reasonable and consistent with the other sections of EPAct and with the Clean Air Act, and DOE declines to adopt the Center's proposed interpretation.

Comments supporting DOE's decision not to promulgate a fleet mandate were submitted by the AALA, Congressman Joe Barton (R-TX), and NAFA. AALA and NAFA, which represent hundreds of individual fleets and businesses that would be potentially covered by a private and local government fleet AFV acquisition mandate, agreed with DOE's analysis regarding the impact that a private and local fleet AFV acquisition mandate would have on the achievement of EPAct's replacement fuel goals and supported DOE's determination that such a mandate is not necessary.

AALA expressed the belief that the high cost of AFVs would make leasing costs prohibitive for many companies and that adoption of a fleet mandate would encourage more businesses to move away from leasing vehicles and toward employee-reimbursement programs, where employees operate their own vehicles and are reimbursed for expenses. EPAct excludes from its authorized fleet programs vehicles garaged at personal residences when not in use. Thus, AALA indicated that some fleets might also attempt to avoid having to comply with a private and local government fleet acquisition mandate by moving to employee reimbursement plans. AALA contended that this would not be conducive to cleaner air or energy efficiency because the vehicles owned and operated by employees would generally be less maintained, less fuel efficient, and more polluting than vehicles provided by leasing companies.

NAFA's comments reiterated concerns expressed to DOE in earlier rulemaking proceedings regarding the high cost of AFVs relative to non-AFVs, and the lack of supporting refueling infrastructure. Congressman Joe Barton, the Chairman of the Subcommittee on Energy and Air Quality of the U.S. House of Representatives Committee on Energy and Commerce, also submitted a short statement supporting DOE's proposed decision not to promulgate a fleet mandate and indicating his belief that efforts to increase the use of AFVs should be voluntary and market-oriented.

The Center comments fault the March 4, 2003, NOPR on the ground that DOE did not propose a revision of the 30 percent replacement fuel goal established for the year 2010 pursuant to sections 507(e) and 504 of EPAct. The Coordinator for the Hampton Roads Clean Cities Coalition also submitted comments arguing that DOE should have proposed a revision to the replacement fuel goals. In DOE's view, if an AFV acquisition mandate on private and local fleets under section 507(e) could make an appreciable contribution to achievement of a replacement fuel goal, there could be an obligation to consider revision of the existing 30 percent goal in this rulemaking. However, as explained in the NOPR and in this final rule ( see section IV), DOE's analysis indicates that imposing such a vehicle acquisition mandate on private and local fleets would not appreciably increase the demand for and consumption of alternative fuels. Analysis of DOE's limited regulatory authority under title V of EPAct and existing market factors independently warrant a finding that a private and local fleet AFV acquisition mandate under section 507(e) is not “necessary.” Therefore, DOE is not required under section 507(e) to go further and revise EPAct replacement fuel goals.

DOE recognizes that section 504 of EPAct provides for “periodic” examination and revision of the statutory replacement fuel goals originally established in section 502(b) for reasons other than the requirement to make a necessity determination under section 507(e) of EPAct. More specifically, section 504(a) provides for DOE to publish in the Federal Register a notice providing an opportunity for public comment on the results of “periodic” examination of the statutory replacement fuel goals. However, as the word “periodic” indicates, section 504(a) generally leaves to DOE's discretion how often the statutory goals should be reexamined. More importantly, under section 504(b), DOE may only initiate a rulemaking proceeding to revise the statutory replacement fuel goals “ * * * after analysis of information in connection with carrying out subsection (a) * * *” of section 504. In DOE's view, the pending legislative and the Administration proposals described in the March 4, 2003, NOPR ( see 68 FR 10321) make it untimely to carry out a proceeding under subsection (a) of section 504. Furthermore, carrying out such a proceeding and broadening the scope of this rulemaking beyond section 507(e) would have likely delayed the issuance of this final rule.

On the basis of the foregoing, DOE rejects the Center's claim that DOE violated sections 507(e) and 504 of EPAct when it omitted a proposal to revise the statutory replacement fuel goals and declines to expand the scope of this rulemaking beyond issues necessary to comply with section 507(e).

The Center argues in its comments that DOE should have conducted an environmental assessment for its NOPR because this rulemaking does not qualify for application of the categorical exemption found in 10 CFR part 1021 at paragraph A.5 of appendix A to subpart D. Paragraph A.5 applies to: “Rulemaking (interpreting/amending), no change in environmental effect.” The Center first argues that paragraph A.5 does not apply to this rulemaking because DOE did not propose to “* * * interpret or amend an existing rule * * *”. In the alternative, the Center argues that this rulemaking does not qualify for application of this categorical exemption because “ * * * DOE's decision not to promulgate a private and municipal fleet rule has a significant detrimental impact on the human environment by withholding action that would reduce petroleum consumption and its attendant environmental damage.”

DOE rejects the Center's first argument because this proceeding is a rulemaking to determine whether to amend 10 CFR part 490 by extending AFV acquisition mandates beyond alternative fuel providers under section 501 of EPAct and State government fleets under section 507(o) of EPAct to include mandates applicable to certain private and local government fleets under section 507(e) of EPAct. In DOE's view, the categorical exemption in paragraph A.5 applies to this rulemaking because DOE construes that exemption to cover rulemakings the purpose of which is to determine whether to amend an existing rule even if, as in this case, the rulemaking subsequently does not result in promulgation of amendatory language.

DOE also rejects the Center's argument that imposition of an AFV acquisition mandate would result in appreciable reductions in petroleum consumption. For the reasons explained in section II.A of this Supplementary Information, DOE has found that such a mandate would not have the effect of appreciably reducing petroleum consumption. On that basis, DOE continues to be of the view that a rulemaking determination for or against amending part 490 to impose such a mandate is environmentally neutral. Moreover, this rulemaking maintains the status quo with respect to private and local government fleets because it does not impose any new obligations or prohibitions on these fleets. For these reasons, an environmental assessment is not necessary.

Section 507(e) of EPAct directs DOE to determine whether private and local government fleets should be required to acquire AFVs. In this respect, the rulemaking process for a private and local government fleet rule is very different from DOE's previous rulemaking on the State government and alternative fuel provider fleet rule. In the case of the State government and alternative fuel provider fleet rule, DOE was not required to make any findings before it promulgated a fleet rule. ( See 42 U.S.C. 13251.) The determination of whether to adopt regulations for private and local government fleets, however, is conditional and depends on DOE making several critical findings.

Sections 507(e) and 507(g), read together, authorize DOE to promulgate a private and local government fleet AFV acquisition mandate only if DOE determines such a program is “necessary.” Section 507(e) sets forth the requirements for determining whether a private and local government fleet program is “necessary.” Section 507(e)(1) states that:

DOE believes that a determination of whether a private and local government fleet AFV acquisition mandate is “necessary” depends, in large part, on the following factors: the amount of replacement fuel use that would result if such a program was adopted ( i.e. , whether it provides more than a very small percentage contribution to overall U.S. use of replacement fuels in motor vehicles); the level of certainty about the contribution such program might make; whether the replacement fuel use resulting from such a fleet rule could be encouraged through other means, including voluntary measures; and whether certain necessary market conditions ( e.g. , whether alternative fuel and suitable AFVs are sufficiently available) exist to support a new fleet rule.

While EPAct authorizes DOE to mandate AFV acquisitions, it severely limits the universe of fleets that would be covered by a private and local government fleet mandate, thus limiting the replacement fuel use that would result from such a program. The definition for “fleet” in EPAct section 301(9), (42 U.S.C. 13211(9)), is limited in coverage only to large, centrally fueled fleets located in major metropolitan areas. Only those fleets that operate or own at least 50 or more light-duty vehicles may be considered for coverage. In addition, the definition of “fleet” specifically excludes from coverage a number of vehicle types and classes ( e.g. , rental vehicles, emergency vehicles, demonstration vehicles, vehicles garaged at personal residences at night, etc.). Vehicles that tend to use larger amounts of fuel, such as medium- and heavy-duty vehicles, are also excluded from coverage.

Even for potentially covered fleets, EPAct section 507(i) provides several opportunities for regulatory relief through exemptions for non-availability of appropriate AFVs and alternative fuels. Specifically, any private and local government fleet rule “shall provide for the prompt exemption” by DOE of any fleet that demonstrates AFVs “that meet the normal requirements and practices of the principal business of the fleet owner are not reasonably available for acquisition,” alternative fuels “that meet the normal requirements and practices of the principal business of the fleet owner are not available in the area in which the vehicles are to be operated,” or for government fleets, if the requirements of the mandate “would pose an unreasonable financial hardship.” Section 507(g)(3) further reinforces these exemptions: “Nothing in [Title V of EPAct] shall be construed as requiring any fleet to acquire alternative fueled vehicles or alternative fuels that do not meet the normal business requirements and practices and needs of that fleet.”

Taken together, these statutory exemptions would likely dramatically lower the number of fleets and fleet vehicles subject to a private and local government AFV acquisition mandate. With respect to local government fleets, a number of these otherwise covered fleets might be exempted, for example, in times when local government budgets are particularly stretched and many local governments are required to cut services or raise taxes to maintain existing levels of service, since there will be greater likelihood that petitions for exemption from hard-pressed local governments would be granted. Even if DOE were disinclined to grant such petitions, the prospects that these petitions must be considered would create a “stop and go” quality about the local government portion of a private and local government fleet requirement program.

As explained in the NOPR and also in portions of the Supplementary Information for today's final rule, DOE lacks the authority under section 507 to require private and local government fleets to use alternative fuels in their AFVs. DOE's textual analysis of the statute and the legislative history provided in the NOPR ( see 68 FR 10338) and above support its conclusion regarding its lack of authority to require fuel use. This lack of authority makes it doubtful that a fleet rule would have any appreciable impact on petroleum consumption. Many fleets might be compelled to buy AFVs, but would operate the AFVs on petroleum-based fuels due to limited nature of the current alternative fuel infrastructure and the oftentimes high relative price of alternative fuels. DOE's experience with fleet programs demonstrates that vehicle acquisition requirements alone result in only a relatively small (in the context of overall U.S. fuel consumption) amount of petroleum replacement.

Finally, DOE is also limited in its authority to affect other market behavior. Section 504(c) precludes DOE from promulgating rules that would:

These limitations in EPAct severely restrict DOE's opportunities to affect the use of replacement fuel, or to establish the market conditions necessary to support a private and local government fleet rule. As a result, it is quite possible that a private and local government AFV acquisition mandate would not increase AFV production or sales at all, but rather would simply change the identity of the buyers of the vehicles.

In addition to all of the provisions discussed, Congress also enacted a petition provision in section 507(n). That section provides:

Thus, even if DOE had authority to require alternative fuel use, the “normal requirements and practices” provisions in sections 507(i)(1) and 507(g)(3), described above, and the petition procedure for modification or suspension of a fleet requirement program in section 507(n), would likely result in many fleets potentially covered by the fleet rule being able to obtain relief from the rule's requirements.

Title V of EPAct substantially limits the effectiveness of any private and local government fleet AFV acquisition program that might be promulgated under section 507. The nature of the exemption and petition procedures and the associated regulatory uncertainty undermine the potential effectiveness of a regulatory mandate to purchase significant numbers of AFVs. These factors support DOE's determination that a private and local government fleet program under section 507(g) would make no appreciable contribution to actual achievement of any replacement fuel goal and, therefore, is not “necessary” under the section 507(e) standard.

Available analyses further support DOE's conclusion that only a very small amount of alternative or replacement fuel use would result from a private and local government fleet program. Technical Report 14, discussed in the NOPR, estimated total fuel use from all EPAct fleet programs to be approximately 1.2 percent of U.S. gasoline use (p. 63, table III-21). 1 DOE's Section 506 Report   2 was only slightly more optimistic, indicating that “[a]lternative fuel use by EPAct covered fleets, even with the contingent mandates for private and local government fleets, is unlikely to provide more than about 1.5 percent replacement fuel use * * * ” Section 506 Report at p. 35. In either case, subtracting out the portion of replacement fuel use represented by the existing (Federal, State, and alternative fuel provider) fleet programs would leave the potential private and local government fleet program contribution closer to a maximum of 1 percent. However, both these earlier reports include calculations based only upon the percentage of light-duty gasoline fuel use. For purposes of the goals contained in EPAct, DOE believes that fuel replacement should be considered in the context of all on-highway motor fuel use, including heavy-duty vehicle fuel use, because the goals contained in section 502 of EPAct are to be considered in the context of the “projected consumption of motor fuel in the United States.” (42 U.S.C. 13252(b)(2).) This section does not refer only to light-duty fuel use. The figures provided in these earlier reports, when adjusted to reflect the impact on all on-highway motor fuel use, show that a private and local government fleet rule—even with a fuel use requirement, which as noted above DOE does not have the authority to impose—would provide at most on the order of 0.7-0.8 percent motor fuel replacement. After taking into account the fact that DOE has no authority to mandate fuel use, DOE estimates that a private and local government fleet AFV acquisition mandate would likely provide only about 0.2 percent motor fuel replacement.

Both the analyses in Technical Report 14 and the Section 506 Report were conducted before DOE had much experience with implementation and operation of the EPAct fleet programs. DOE's experience with those programs now has shown that the number of fleets originally envisioned to be covered was far larger than the number of fleets covered in actual practice. DOE stated in the March 4, 2003, NOPR its belief that the figures in these reports probably overstate the potential impact of a private and local government fleet rule because they overestimate the total number of AFVs that would be acquired under such a program. This view is supported by analyses contained in a more recent DOE-supported report, The Alternative Fuel Transition: Results from the TAFV Model of Alternative Fuel Use in Light-Duty Vehicles 1996-2000 (ORNL.TM2000/168) (September 17, 2000) [hereinafter TAFV Model Report ], http://pzl1.ed.ornl.gov/tafv99report31a_ornltm.pdf, which incorporates more realistic assumptions regarding these fleet programs. The TAFV Model Report states that, “In particular, over all of the price scenarios, we find that the [private and local government fleet] rule increases the alternative fuel penetration in 2010 from 0.12% (without the private and local government rule) to, at most, 0.37% [with a private and local government rule] of total fuel sales.” TAFV Model Report at p. 28. Thus, this analysis placed contributions from the private and local government fleet rule at 0.25 percent. Like Technical Report 14 and the Section 506 Report, these percentages were calculated based on the total fuel sales of the fuel used by light-duty vehicles only. Therefore, the contribution from a potential rule drops below 0.2 percent when evaluated as part of all on-highway motor fuel use.

No commenter presented any persuasive analysis or data to counter or dispute the data and conclusions in Technical Report 14 or the Section 506 Report. The TAFV Model Report further supports the conclusions of the earlier reports. Therefore, DOE finds and concludes that a potential private and local fleet program under authority provided to DOE by EPAct section 507 would be expected to contribute, at best, an extremely small amount toward achievement of the replacement fuel goal (below 1 percent and likely below 0.2 percent of all on-highway motor fuel use). Even without the additional statutory limitations described above that EPAct places on such a private and local government fleet mandate, the contribution from such a mandate to the EPAct replacement fuel goals would be very small.

Throughout the proceedings associated with this rulemaking (including the advanced notice of proposed rulemaking and public workshops), numerous comments received by DOE expressed concern that the level of alternative fuel infrastructure is not adequate to support a private and local government fleet rule. In the NOPR, DOE noted that alternative fuel provider investments in alternative fuel infrastructure actually have slowed down in recent years. Shortly after EPAct's passage in 1992, a significant number of natural gas and electric utilities entered the transportation fuels market, hoping to market alternative fuels to fleets subject to the Clean Air Act and EPAct. The number of alternative fuel stations, natural gas stations in particular, grew from little more than a handful to several thousand by the end of the 1990s. While the number of ethanol refueling stations has grown over the past few years, the total number of alternative fuel stations appears to have stalled or slightly declined. See Department of Energy, Alternative Fuel Data Center, Refueling Stations (http://www.afdc.doe.gov/refuel/state_tot.shtml) (Dec. 2002) [hereinafter AFDC Refueling Stations]. Restructuring in the utility industry has played a significant part in the reduced investment by utilities in alternative fuel stations and therefore in the lack of growth in the total number of alternative fuel stations.

In the NOPR, DOE stated that the ethanol industry has made only a limited investment in building infrastructure for supplying E-85, the fuel used by ethanol FFVs, of which there are several million in service today. The ethanol industry has primarily focused its attention on supplying the gasohol and gasoline-oxygenate market. Consequently, today there are only approximately 180 fueling outlets nationwide that provide E-85. See AFDC Refueling Stations (http://www.afdc.doe.gov/refueling.html). Some efforts are underway to expand the number of E-85 refueling sites. However, the number of E-85 stations would have to grow significantly to have a measurable impact on overall U.S. motor fuel consumption.

As DOE explained in the NOPR, major energy suppliers, principally oil companies, have largely been unwilling to date to invest in the alternative fuels market (or they have actively opposed it) and instead have primarily focused their attention on ensuring that gasoline and diesel fuels meet current and future environmental regulations. No commenter disputed the discussion in the NOPR regarding this issue. Thus, DOE does not expect that the major oil and fuel retailers would install the infrastructure necessary to support alternative fuel use by AFVs were DOE to promulgate a private and local government fleet mandate, given the extremely small amount of replacement fuel use that likely would result from such a mandate; certainly that infrastructure is not in place now. This limited infrastructure would likely result in exemption requests and petitions to suspend any fleet requirement program DOE might impose under section 507(e), and DOE possibly granting these requests.

Automakers have for several years now offered some variety of AFVs, including passenger cars, light-duty pickup trucks and vans. The availability of these vehicles stands in stark contrast to when EPAct was enacted. In 1992, there were virtually no original equipment manufacturer (OEM) vehicles available that operated on alternative fuel. Consumers and fleets had to have existing gasoline vehicles converted by aftermarket shops if they wanted AFVs. The AFVs that are available today are built by auto manufacturers for two primary purposes: (1) To provide credits to automakers that can be used to meet the corporate average fuel economy (CAFE) standards; and, (2) to meet the needs of the fleets currently subject to fleet mandates.

Automobile manufacturers are awarded CAFE credits as an incentive to develop AFVs. The sale of these vehicles in turn could potentially lead to the development of infrastructure to support alternative fuel use. Data available to DOE indicates that manufacturers currently offer over a million new flexible fuel vehicles (FFVs) each year (at virtually no incremental purchase price). Other AFVs (such as gaseous fuel vehicles) are available in significantly lower numbers, and generally combine for a total of less than 10,000 vehicles per year (often at incremental purchase prices of approximately $2000 to $8000).

It should be noted that the total number of AFVs available each year is several times the number projected to be required to meet the annual acquisition requirements of a private and local government AFV fleet program. We believe such a fleet program would be unlikely to result in large numbers of additional AFVs being produced because most AFVs are manufactured as a result of the CAFE incentive provisions contained in the Alternative Motor Fuels Act of 1988 (AMFA) (49 U.S.C. 32905), and the ability to earn additional credits is constrained. Therefore, DOE expects that, for the most part, imposition of a private and local government AFV fleet program would largely result in a shift of these already-available vehicles to fleets covered under this program. No commenter explained why a different outcome might reasonably be expected.

DOE is also concerned that if it were to adopt a requirement for private and local government fleets to acquire AFVs, there may not necessarily be the right mix of vehicle types required by fleets. DOE explained this concern in the NOPR and no commenter offered any information or explanation why DOE's concern was not well-grounded. See 68 FR at 10340. The number of AFVs that likely would be acquired under a private and local government fleet mandate are, in DOE's view and based on the comments it has received, insufficient to create the market demand that would cause manufacturers to modify their product plans and build the range of models and fuel type combinations required by fleets. It should be noted that section 504(c) of EPAct (42 U.S.C. 13254(c)) expressly prohibits DOE from mandating the production of AFVs or to specify the types of AFVs that are made available. Under the existing State government and alternative fuel provider fleet programs, DOE has been obliged to provide a number of exemptions to fleets that were unable to acquire AFVs that meet their “normal requirements and practices.” Unless automakers significantly expand their current offerings of AFVs, DOE likely would be forced to process and approve thousands of exemption requests each year made by private and local government fleets, thus further watering down the effect a private and local government fleet mandate would have in causing use of alternative fuels.

At the present time, the cost of some alternative fuels (such as biofuels) exceeds the cost of conventional motor fuel, and it is reasonable to assume that, absent changes in technology, in the supply of petroleum, or in policy as established by law, this price differential will continue and will influence fleet owners and operators for the foreseeable future. DOE set forth this assumption in the NOPR, and no commenters offered any evidence or persuasive arguments to dispute it. See 68 FR at 10340. The likely effect of the price differential is predictable in light of DOE's experience in administering the State government fleet requirement program under section 507(o) of EPAct. Most State government fleets are acquiring significant numbers of FFVs and operating them lawfully using conventional motor fuels. Although this practice in part may be a function of lack of ready access to sufficient alternative fuel infrastructure, the fuel cost differential of ethanol (in some geographic areas) is likely a contributing factor.

DOE determines that a private and local government fleet AFV acquisition mandate under sections 507(e) and (g) of EPAct is not “necessary,” and, therefore, DOE is precluded from imposing it. Such a mandate would make no appreciable contribution (from less than 0.2 percent to a maximum of 0.8 percent of on-highway motor fuel use) toward achievement of the 2010 replacement fuel goal in EPAct section 502 or a revised goal, and even this extremely small contribution is highly uncertain.

As a result, DOE cannot make the determinations set forth in section 507(e), both of which must be made in the affirmative before a private and local government fleet requirement program can be determined to be “necessary” and thus implemented. DOE cannot determine that the 2010 replacement fuel goal in EPAct (or a revised goal) will not be achieved “without such a fleet requirement program” because the existence of the fleet rule would have no appreciable impact (indeed almost no measurable impact at all) on the goal's achievement. For the same reason, DOE cannot determine that the replacement fuel goal can be achieved “through implementation of such a fleet requirement program” in combination with other means.

DOE has come to these conclusions for all of the reasons explained above. To summarize, there are the limitations in EPAct itself, which include: (1) Limitations on the coverage of a private and local government fleet requirement program to only certain light-duty vehicle fleets; (2) procedures allowing case-by-case exemptions; and (3) DOE's lack of authority to require alternative or replacement fuel use. In addition, even if DOE imposed AFV acquisition requirements, market conditions will encourage covered fleets to file petitions seeking modification and/or suspension of the entire fleet requirement program and/or its application to specific fleets and vehicles. Those conditions, which are likely to persist, are: (1) Lack of ready access to sufficient alternative fuel infrastructure; (2) limited availability of suitable AFVs; and (3) high alternative fuel costs (for certain fuels) relative to the costs of conventional motor fuels.

On the basis of the foregoing, DOE today determines that a private and local government fleet requirement program is not “necessary” under the standards set forth in EPAct section 507(e) and, therefore, will not be promulgated.

Section 507(k)(1) of EPAct provides in relevant part: “If the Secretary determines, by rule, that the inclusion of fleets of law enforcement motor vehicles in the fleet requirement program established under subsection (g) would contribute to achieving the [replacement fuel] goal described in section 502(b)(2)(B) * * * and the Secretary finds that such inclusion would not hinder the use of the motor vehicles for law enforcement purposes, the Secretary may include such fleets in such program * * *. ” (emphasis added). Section 507(k)(2) contains similar language with regard to new urban buses (42 U.S.C. 13257(k)(1) and (2)). Both section 507(k)(1) and 507(k)(2) limit DOE to only one rulemaking opportunity for implementing requirements for law enforcement and urban bus fleets.

As discussed in the NOPR, DOE considered interpreting section 507(k) to mean that law enforcement vehicle fleets and urban buses could be considered as part of the determination process under sections 507(e) and (g) as to whether a private and local government fleet AFV acquisition mandate program is “necessary.” DOE, however, believes that EPAct only allows it to consider whether law enforcement fleets and urban buses should be covered by a fleet acquisition mandate after DOE has completed the rulemaking contemplated by sections 507(e) and (g), and only if DOE has determined that a private and local government fleet acquisition program is “necessary.” DOE does not believe that these programs can be considered as part of the rulemaking that section 507(e) directs DOE to conduct regarding private and local government fleets. This view is supported by the fact that the provisions relating to law enforcement vehicles and urban buses require DOE to conduct separate rulemakings to consider whether to adopt these programs.

DOE further interprets EPAct to prohibit DOE from considering law enforcement vehicle fleets when making the “necessary” determination under sections 507(e) and (g) because such fleets are specifically excluded from the statutory definition of the term “fleet” (42 U.S.C. 13211(9)). Similarly, it is DOE's view that EPAct prohibits DOE from considering urban buses when making the “necessary” determination under sections 507(e) and (g) because the statutory definition of the term “fleet” is limited to “light-duty vehicles” which are vehicles no more than 8,500 lbs. GVWR, and under the definition of “urban bus” referenced in section 507(k) and contained in 40 CFR 86.093-2, most urban buses would not qualify as light-duty vehicles.

No commenter presented any persuasive argument as to why DOE's interpretation of sections 507(k), 507(e) and 507(g) as discussed in this section C of this Supplementary Information is incorrect. Thus, since DOE is not adopting a private and local government fleet requirement, it also is precluded from adopting a fleet requirement for law enforcement vehicles and urban buses.

DOE has decided not to modify the 2010 replacement fuel goal of 30 percent in this final rule. As noted earlier, the process of determining whether to adopt an AFV acquisition mandate for private and local government fleets depends on whether such a rule is “necessary” to achieve EPAct's petroleum replacement fuel goals. As part of the process of evaluating whether to propose AFV acquisition mandates for private and local government fleets pursuant to EPAct section 507, DOE reviewed the replacement fuel goals in EPAct section 502 and considered whether to revise them, but decided for several reasons that it would not propose any such modifications.

DOE has decided not to propose or finalize any revisions to the replacement fuel goal because, first, DOE does not believe that EPAct requires it to revise the petroleum replacement fuel goal in order to determine whether a private and local government fleet rule is “necessary.” Revising the goal as part of this rulemaking would serve no purpose because, as indicated in the NOPR and in this final rule, the adoption of a revised goal would not impact DOE's determination that a private and local government fleet rule provides no appreciable increase in replacement fuel use. In addition, the limited regulatory authority under Title V of EPAct and existing market factors independently warrant a finding that an AFV acquisition mandate under section 507(e) is not “necessary.” Therefore, DOE is not required under section 507(e) to revise the EPAct 2010 percent replacement fuel goal, since it would not influence DOE's decision regarding whether or not to implement a private and local government fleet regulation.

Second, DOE believes that revising the 2010 replacement fuel goal at this time would not serve the aims of EPAct to promote or encourage the use of replacement fuels. Congress created by statute (in EPAct section 502(b)(2)) an initial national goal of using replacement fuels for at least 10 percent of motor fuel used in the United States by 2000, and a long-term goal of at least 30 percent by 2010, on a petroleum fuel energy equivalent basis. Neither the text of EPAct nor the legislative history explains why Congress chose these particular goals and dates. Nor does the text or legislative history provide any analysis supporting them. However, and in light of the overall purposes of EPAct, DOE believes that Congress set these particular goals to establish aggressive aspirational petroleum reduction targets for the Federal government and the public. Congress apparently intended to encourage action that would aggressively advance the availability and use of replacement fuels. DOE believes that the goals in EPAct were intended to encourage actions that would lead to significant increases in replacement fuel use.

Since EPAct's enactment in late 1992, the Federal government has implemented a number of regulatory and voluntary programs in an effort to increase the use and availability of replacement fuels. While these programs have increased the availability of AFVs and the use of alternative fuels and replacement fuels, these programs have not had the desired effect of greatly increasing the availability or use of alternative and replacement fuels, or of causing the use of replacement fuels to become a viable alternative, on a large-scale basis, to the use of petroleum-based fuels in vehicles. The result is that although the use of replacement and alternative fuels has increased since 1992, the overall use of these fuels relative to total petroleum consumption remains relatively small. In 1992, replacement fuels accounted for slightly less than 2 percent of total motor fuel consumption; by 2001, replacement fuels accounted for less than 3 percent. See Transportation Fuels 2000 at Table 10. Thus, to date, very little progress has been made toward achieving the aggressive replacement fuel goals established by EPAct and little progress will be made in the future without major new initiatives.

At the same time, DOE takes note of the fact that Congress is currently considering comprehensive legislation that may significantly affect our Nation's energy future and may bear importantly not only on the achievability of the current goals, but also on what any potential revised goals might be. Moreover, the President and DOE have proposed bold initiatives to dramatically increase the availability, use and commercial viability of replacement fuels in the transportation sector. DOE's transportation efforts are focused on the goal of developing advanced motor vehicle technologies (such as hydrogen-based fuel cells) that could someday significantly offset demand for petroleum motor fuels. These efforts also support the shorter-term objective of more efficiently utilizing existing petroleum resources. These efforts, if fully supported with necessary enabling legislation and funding as DOE has proposed, offer the potential to achieve the long-term EPAct goal of replacing petroleum as the primary transportation fuel.

In light of the momentum that these various efforts are gaining; in light of what DOE understands to be the principal purpose of EPAct's replacement goals in section 502(b)(2)—to encourage policymakers, industry and the public to engage in aggressive action to expand the use of alternative and replacement fuels; and in light of the possibility of new legislation that would have significant bearing on these issues, DOE has concluded that it should not make a determination under EPAct concerning the achievability of the 2010 goal at this time. Therefore, DOE is not modifying the 2010 replacement fuel goal set forth in EPAct section 502(b)(2). DOE will continue to evaluate this issue and may in the future, if it considers it appropriate, review and modify the 2010 replacement fuel goal pursuant to its authority in EPAct Title V.

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 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. Executive Order 12988 does not apply to this rulemaking because DOE has determined that a private and local government fleet program is not “necessary” under sections 507(e) and (g) of EPAct, and, therefore, DOE is not promulgating regulations to implement such a program.

This regulatory action has been determined to be a “significant regulatory action” under Executive Order 12866, Regulatory Planning and Review. See 58 FR 51735 (October 4, 1993). Accordingly, today's action was subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA).

The Regulatory Flexibility Act (5 U.S.C. 601 et. seq. ) requires preparation of a regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking” (67 FR 63461, August 16, 2002), DOE published procedures and policies to ensure that the potential impacts of its draft rules on small entities are properly considered during the rulemaking process (68 FR 7990, February 19, 2003), and has made them available on the Office of General Counsel's Web site: http://www.gc.doe.gov. DOE reviewed today's final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE's negative determination under EPAct section 507(e) will not impose compliance costs on small entities. On the basis of the foregoing, DOE certifies that this final rule will not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking.

Because DOE has determined not to promulgate requirements for private and local government fleets, no new record keeping requirements, subject to the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. , would be imposed by today's regulatory action.

This rule determines that a regulatory requirement for the owners and operators of certain private and local government light-duty vehicle fleets to acquire AFVs would make no appreciable contribution to actual achievement of the replacement fuel goal in EPAct or a revised goal, and, therefore, is not “necessary” under EPAct section 507(e). The negative determination regarding the necessity for a private and local government fleet requirement program will not require any government entity or any member of the public to act or to refrain from acting. Accordingly, for this reason and reasons discussed in section II.C of the Supplementary Information, DOE has determined that its determination is covered under the Categorical Exclusion found at paragraph A.5 of appendix A to subpart D, 10 CFR Part 1021, which applies to rulemakings interpreting or amending an existing rule or regulation that does not change the environmental effect of the rule or regulation being interpreted or amended.

Executive Order 13132, Federalism, 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 determination and determines that it will not preempt State law and 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.

Section 1(b)(9) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (September 30, 1993), established the following principle for agencies to follow in rulemakings: “Wherever feasible, agencies shall seek views of appropriate State, local, and tribal officials before imposing regulatory requirements that might significantly or uniquely affect those governmental entities. Each agency shall assess the effects of Federal regulations on State, local, and tribal governments, including specifically the availability of resources to carry out those mandates, and seek to minimize those burdens that uniquely or significantly affect such governmental entities, consistent with achieving regulatory objectives. In addition, agencies shall seek to harmonize Federal regulatory actions with regulated State, local and tribal regulatory and other governmental functions.”

Because DOE has determined that a private and local government fleet AFV program is not “necessary” under section 507(e) and, therefore, is not promulgating such a program, no significant impacts upon State and local governments are anticipated. The position of State fleets currently covered under the existing EPAct fleet program is unchanged by this action. Prior to issuance of its NOPR, DOE sought and considered the views of State and local officials. The March 4 NOPR contains a full discussion of these consultations. See 68 FR 10320.

Title II of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, requires each Federal agency to assess the effects of Federal regulatory actions on State, local and tribal governments and the private sector. The Act also requires a Federal agency to develop an effective process to permit timely input by elected officials on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published in the Federal Register a statement of policy on its process for intergovernmental consultation under the Act (62 FR 12820). The final rule published today does not propose or contain any Federal mandate, so the requirements of the Unfunded Mandates Reform Act do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well-being. Today's action will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

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 final rule under the OMB and DOE guidelines, and has concluded that it is consistent with applicable policies in those guidelines.

Under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), 65 FR 67249 (November 9, 2000), DOE is required to consult with Indian tribal officials in development of regulatory policies that have tribal implications. Today's action would not have such implications. Accordingly, Executive Order 13175 does not apply to this final rule.

Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks), 62 FR 19885 (April 23, 1997), contains special requirements that apply to certain rulemakings that are economically significant under Executive Order 12866. Today's action is not economically significant. Accordingly, Executive Order 13045 does not apply to this rulemaking.

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy, Supply, Distribution, or Use), 66 FR 28355 (May 22, 2001), requires preparation and submission to OMB of a Statement of Energy Effects for significant regulatory actions under Executive Order 12866 that are likely to have a significant adverse effect on the supply, distribution, or use of energy. A determination that a private and local government fleet AFV acquisition program is not “necessary” under EPAct section 507(e) does not require private and local government fleets, suppliers of energy, or distributors of energy to do or to refrain from doing anything. Thus, although today's negative determination is a significant regulatory action, the finalization of this determination will not have a significant adverse impact on the supply, distribution, or use of energy. Consequently, DOE has concluded there is no need for a Statement of Energy Effects.

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

The issuance of the final rule for the Private and Local Government Fleet Determination has been approved by the Office of the Secretary.

A proposal to amend 14 CFR part 39 to include an AD for the specified Agusta model helicopters was published in the Federal Register on October 22, 2003 (68 FR 60300). That action proposed to require modifying the doors by installing a new lever and link and other hardware contained in kits, part number (P/N) 109-0823-25-101 (left hand) and P/N 109-0823-25-102 (right hand).

The Ente Nazionale per l'Aviazione Civile (ENAC), the airworthiness authority for Italy, notified the FAA that an unsafe condition may exist on Agusta Model A109E helicopters. ENAC advises that the doors should be modified.

Agusta has issued Alert Bollettino Tecnico No. 109EP-33, dated March 19, 2003 (ABT), which specifies modifying the opening and closing mechanism of the passenger compartment sliding doors by installing a new lever and a new link to avoid the possibility of the mechanism not reaching the stowed position. Agusta reports the accidental opening during flight of one of the doors, on a few helicopters, without any harm to the passengers. ENAC classified this ABT as mandatory and issued AD No. 2003-109, dated March 27, 2003, to ensure the continued airworthiness of these helicopters in Italy.

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

The FAA estimates that this AD will affect 34 helicopters of U.S. registry, and the required actions will take approximately 4 work hours per helicopter to accomplish at an average labor rate of $65 per work hour. Required parts will cost approximately $3000 per helicopter. Based on these figures, we estimate the total cost impact of the AD on U.S. operators to be $110,840 ($3260 per helicopter). However Agusta states in its ABT that it will supply the parts at no cost and will reimburse up to 4 work hours to modify the doors at a fixed rate of $40. Assuming this warranty coverage, the estimated total cost impact of this AD on U.S. operators is $3400 ($100 per helicopter).

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 Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, recently notified the FAA that an unsafe condition may exist on all Dassault Model Falcon 900EX series airplanes. The DGAC advises that a design review identified a situation in which use of bleed air during icing conditions, in a situation in which one engine on the airplane is not operating, could cause the remaining engines to exceed the maximum Inter-stage Turbine Temperature (ITT). This could induce a reduction in engine thrust. This condition, if not corrected, could result in a reduction in the airplane's climb performance, leading to an inability to avoid low-level obstacles during takeoff, and consequent controlled flight into terrain.

Dassault has issued the following Temporary Changes (TCs) to the Falcon 900EX Airplane Flight Manuals (AFM), Documents DTM561 and DGT84972:

• TC 63 to the Falcon 900EX AFM, Document DTM561; and TC 2 to the Falcon 900EX AFM, Document DGT84972; both dated December 17, 2003; which describe revisions to the Limitations, Performance, Emergency Procedures, and Abnormal Procedures sections of the AFM. The revisions to the Limitations and Performance sections advise the flightcrew of reductions in performance during operations in icing conditions. The revisions to the Emergency Procedures and Abnormal Procedures sections advise the flightcrew of the need to monitor ITT and make necessary adjustments in certain situations involving engine failure during icing conditions.

• TC 65 to the Falcon 900EX AFM, Document DTM561; and TC 5 to the Falcon 900EX AFM, Document DGT84972; both dated December 17, 2003; which describe revisions to the Performance section of the AFM to advise the flightcrew of reductions in expected performance during operations in icing conditions.

• Supplement 19 D, Revision 2, to the Falcon 900EX AFM, Document DTM561, dated December 17, 2003, which describes a revision to the Supplements section of the AFM for certain airplanes operating with certain software or modifications. This revision advises of limitations on operations with the anti-ice system activated.

The DGAC classified these TCs to the AFMs as mandatory and issued French emergency airworthiness directive U F-2003-464 to ensure the continued airworthiness of these airplanes in France.

This airplane model is manufactured in France and is type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to ensure that the flightcrew is aware of the potential for reductions in climb performance in certain situations while operating in icing conditions, and the actions they must take to avoid this condition, which could result in an inability to avoid low-level obstacles during takeoff and consequent controlled flight into terrain. This AD requires revising the AFM to advise the flightcrew about limitations on operating in icing conditions, and to require that the airplane be operated per these limitations.

For the AFM revisions, the French emergency airworthiness directive specifies a compliance time of before the next flight upon receipt of the emergency airworthiness directive. This AD provides a compliance time of 7 days after the effective date of this AD. In developing an appropriate compliance time for this AD, we considered the DGAC's recommendation, as well as the degree of urgency associated with the subject unsafe condition. In light of these factors, we find that a 7-day compliance time represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety.

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-276-AD.” The postcard will be date stamped and returned to the commenter.

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

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

Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified the FAA that an unsafe condition may exist on certain Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. TCCA advises that the shear pin located in the input lever of two pitch feel simulator (PFS) units failed due to fatigue. One pin failed during endurance rig testing of a Model CL-600-2B19 airplane, and another failed in service. Failure of the shear pin is not always detectable by the flightcrew during normal operation of the airplane. Undetected failure of the shear pin of both PFS units simultaneously, if not corrected, could result in loss of pitch feel forces and consequent loss of control of the airplane.

Bombardier has issued Temporary Revision (TR) 2B-1784, dated October 24, 2003, to the CL-600-2B19 Canadair Regional Jet Maintenance Requirements Manual, Part 2, Appendix B, “Airworthiness Limitations.” The TR describes procedures for a functional test of the pilot input lever of the PFS unit. Accomplishment of the action specified in the service information is intended to adequately address the identified unsafe condition. TCCA classified these actions as mandatory and issued Canadian airworthiness directive CF-2003-26, dated November 14, 2003, to ensure the continued airworthiness of these airplanes in Canada.

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

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to prevent undetected failure of the shear pin of the PFS unit, which could result in loss of pitch feel forces and consequent loss of control of the airplane. This AD requires revising the airworthiness limitations section of the Instructions for Continued Airworthiness of the aircraft maintenance manual by incorporating procedures for a functional test of the pilot input lever of the PFS unit. This AD also requires a functional test of the pilot input lever of the PFS unit, and corrective action if necessary. The actions are required to be accomplished in accordance with the service information described previously. This AD also includes a reporting requirement.

This AD is considered to be interim action. The reports that are required by this AD will enable the manufacturer to obtain better insight into the nature, cause, and extent of failures of the shear pins of the PFS units, and eventually to develop final action to address the unsafe condition. Once final action has been identified, we may consider further rulemaking.

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-262-AD.” The postcard will be date stamped and returned to the commenter.

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

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

Background

The final rule that is the subject of these corrections provides guidance under 31 CFR part 103.

As published, the final rule contains errors that may prove to be misleading and are in need of clarification.

In final rule FR Doc. 03-28991, published on November 20, 2003 (68 FR 65392), make the following correction.

Coast Guard District Commanders and Captains of the Port (COTP) must be immediately responsive to the safety and security needs within their jurisdiction; therefore, District Commanders and COTPs have been delegated the authority to issue certain local regulations. Safety zones may be established for safety or environmental purposes. A safety zone may be stationary and described by fixed limits or it may be described as a zone around a vessel in motion. Security zones limit access to prevent injury or damage to vessels, ports, or waterfront facilities and may also describe a zone around a vessel in motion. Special local regulations are issued to enhance the safety of participants and spectators at regattas and other marine events. Drawbridge operation regulations authorize changes to drawbridge schedules to accommodate bridge repairs, seasonal vessel traffic, and local public events. Timely publication of these rules in the Federal Register is often precluded when a rule responds to an emergency, or when an event occurs without sufficient advance notice. The affected public is, however, informed of these rules through Local Notices to Mariners, press releases, and other means. Moreover, actual notification is provided by Coast Guard patrol vessels enforcing the restrictions imposed by the rule. Because Federal Register publication was not possible before the beginning of the effective period, mariners were personally notified of the contents of these special local regulations, drawbridge operation regulations, security zones, or safety zones by Coast Guard officials on-scene prior to any enforcement action. However, the Coast Guard, by law, must publish in the Federal Register notice of substantive rules adopted. To meet this obligation without imposing undue expense on the public, the Coast Guard periodically publishes a list of these special local regulations, security zones, safety zones and temporary drawbridge operation regulations. Permanent rules are not included in this list because they are published in their entirety in the Federal Register . Temporary rules are also published in their entirety if sufficient time is available to do so before they are placed in effect or terminated. The safety zones, special local regulations, security zones and drawbridge operation regulations listed in this notice have been exempted from review under Executive Order 12866, Regulatory Planning and Review, because of their emergency nature, or limited scope and temporary effectiveness.

The following rules were placed in effect temporarily during the period from October 1, 2003, through December 31, 2003, unless otherwise indicated.

On March 19, 2003, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations; Caloosahatchee River bridge (SR 29), Okeechobee Waterway, Labelle, Florida, in the Federal Register (68 FR 13242). We received one (1) comment on this notice of proposed rulemaking (NPRM). No public hearing was requested, and none was held.

The Mayor of Labelle requested a change in regulations governing the operation of the Caloosahatchee River bridge (SR 29), to ease vehicle traffic congestion, during morning and evening rush hours. The roadway is a two-lane, narrow, undivided arterial roadway. The waterway has safe waiting areas on each side of the bridge for all vessels; however, the waterway is used predominantly by small to mid-sized recreational vessels. The roadway is severely congested due to insufficient vehicular capacity. The existing regulation for this bridge is published in 33 CFR 117.5 and requires the bridge to open on signal. The rule will continue to require the bridge to open on signal, except that from 7 a.m. to 9 a.m. and from 4 p.m. to 6 p.m., Monday through Friday, except Federal holidays, the draw need not open. Tugs with tows, public vessels of the United States and vessels in distress shall be passed at any time.

We received one (1) comment on the notice of proposed rulemaking (NPRM) against the rule change, citing that the period of closure was too long for vessels to wait.

We have carefully considered the comment and decided not to change the proposed rule. Vessels transiting the area would have a 20-hour period during which the bridge would open on signal and adequate safe waiting areas are available.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary, because the rule will only affect a small percentage of vessel traffic through this bridge.

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.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking. The Coast Guard offered small businesses, organizations, or governmental jurisdictions that believed the rule would affect them, or that had questions concerning its provisions or options for compliance, to contact the person listed in 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 the 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 would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial 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 M16475.1D, 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 (32)(e), of the Instruction, from further environmental documentation.

Section 126.15(a)(3) of title 33 Code of Federal Regulations (CFR) requires owners or operators of all designated waterfront facilities to post warning signs. Posting of warning signs is a collection of information under OMB control no. 1625-0016 (Formerly 2115-0054). The final rule that contained the provisions on warning signs was published in the Federal Register on September 26, 2003 (68 FR 55436), and is available electronically through the docket (USCG-1998-4302) web site at http://dms.dot.gov. It became effective on October 27, 2003, with the exception of 33 CFR 126.15(a)(3).

As required by 44 U.S.C. 3507(d), we submitted a copy of the final rule to OMB for its review on October 6, 2003. On November 17, 2003, after reviewing the rule, OMB approved the collection of information required by this final rule under OMB control no. 1625-0016.

On October 17, 2003, we published a notice of proposed rulemaking (NPRM) entitled “Security Zone; Captain of the Port Milwaukee Zone, Lake Michigan” in the Federal Register (68 FR 59752). We received no letters commenting on the proposed rule. No public hearing was requested, and none was held.

On September 11, 2001, the United States was the target of coordinated attacks by international terrorists resulting in catastrophic loss of life, the destruction of the World Trade Center, significant damage to the Pentagon, and tragic loss of life. National security and intelligence officials warn that future terrorists attacks are likely.

This regulation revises a previously established security zone around the Kewaunee Nuclear Power Plant. This security zone is necessary to protect the public, facilities, and the surrounding area from possible sabotage or other subversive acts. All persons other than those approved by the Captain of the Port Milwaukee, or his authorized representative, are prohibited from entering or moving within the zone. The Captain of the Port Milwaukee may be contacted via VHF Channel 16 for further instructions before transiting through the restricted area. In addition to publication in the Federal Register , the public will be made aware of the existence of this security zone, its exact location, and the restrictions involved via Local Notice to Mariners and the Broadcast Notice to Mariners.

We received no comments in response to this rulemaking. Therefore, we have made no changes from proposed rule.

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 Transportation (DOT) (44 FR 11040, February 26, l979).

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 security zone will not have a significant economic impact on a substantial number of small entities for the following reasons. Our rule will not obstruct the regular flow of commercial traffic and will allow vessel traffic to pass around the security zone. In addition, in the event that it may be necessary, prior to transiting commercial vessels can request permission from the Captain of the Port Milwaukee to transit through the zone.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. No comments or questions were received from any small businesses.

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

On May 6, 2003, we published a notice of proposed rulemaking (NPRM) entitled “Safety and Security Zones; New London Harbor, Connecticut—Security Zone” in the Federal Register (68 FR 23935). We received two letters commenting on the proposed rule. No public hearing was requested, and none was held.

As a highly visible and vital part of the U.S. Navy submarine construction and maintenance, as well as being adjacent to other facilities and population centers, the General Dynamics Electric Boat Corporation (EB) facility in Groton, CT presents a potential target for terrorist attack. To protect this facility from such attack, a permanent security zone, located at 33 Code of Federal Regulations (CFR) 165.140(a)(1), has been in place around the Electric Boat facility for several years. This rule will correct inaccuracies in the directional orientation of the current coordinates in 33 CFR 165.140(a)(1) and revises these coordinates to North American Datum 1983, providing coordinates consistent with those used by the maritime community. This rule will also expand the security zone parameters to encompass the southern end of the EB facility. The zone is established by reference to coordinates.

Two comments were received regarding the proposed rule, both from commercial fishermen who operate in the Thames River in the vicinity of the EB facility. The first letter claims that the security zone will have an adverse economic impact on fishermen who have historically worked in the area around the EB facility. As provided for in the general regulations regarding security zones contained in 33 CFR 165.33, any vessel may request entry into the security zone from the Captain of the Port, Long Island Sound (COTP). The COTP will review requests to enter the security zone on a case-by-case basis. Fishermen may request permission to enter the zone for a one-time or ongoing basis. Permission to enter the zone is subject to review and/or revocation by the COTP based upon security concerns. No changes to the regulatory text were made in response to this comment.

The second comment letter also raised concern with the potential interference the security zone would have on the operation of commercial fishermen in the area of the security zone. Specifically, the comment recommended establishing similar conditions at EB to the restrictions on transit surrounding Naval Submarine Base New London, Groton, Connecticut, and recommends a similar process of registration to use the security zone area. The waters of the Thames River adjacent to Naval Submarine Base New London contain both a security zone immediately adjacent to the Base, as well as a restricted area established by the U.S. Army Corps of Engineers (ACOE) under 33 CFR 334.75; the restricted area extends the entire width of the Thames River. The purpose of a restricted area, as defined in 33 CFR 334.2(b), is to prohibit or limit public access to the area in order to provide security for Government property and or protection to the public from the risks of damage or injury arising from the Government's use of that area. Per the regulation authorizing the establishment of restricted areas by the ACOE at 33 CFR 334.3, however, a restricted area shall provide for public access to the maximum extent possible. A security zone established under the Ports and Waterways Safety Act, 33 United States Code (U.S.C.) 1221, et seq, and the Magnuson Act, 50 U.S.C. 191, et seq, and the regulations established thereunder, more appropriately addresses the security concerns surrounding the EB facility, by completely prohibiting access to the security zone area. As discussed above, however, fishermen may request permission either on an individual trip basis or an ongoing basis from the COTP to fish in those areas restricted by the security zone. No changes to the regulatory text were made in response to this comment.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This regulation may have some impact on the public, but these potential impacts will be minimized for the following reasons: The security zone encompasses only a small portion of the Thames River, encompassing pier and industrial areas not suitable for commercial or recreational vessel transit; there is no impact on the navigable channel in the Thames River by the increased security zone area at the southern portion of the Electric Boat property; the security zone minimally impacts the channel, but this overlap is necessary to provide sufficient security for naval vessels and Electric Boat infrastructure, and leaves ample room for vessels to navigate around the security zone in the channel; and any commercial impact may be alleviated by requesting permission to enter the security zone from the COTP. While recognizing the potential for some minimal impact from the rule, the Coast Guard considers it de minimus in comparison to the compelling national interest in protecting the naval vessels under construction and undergoing maintenance at the EB Facility, as well as protecting adjacent industrial facilities and residential areas from possible acts of terrorism, sabotage or other subversive acts, accidents, or other causes of a similar nature.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will 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 may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in those portions of Long Island Sound and the Thames River covered by the RNA and/or safety and security zones.

For the reasons outlined in the Regulatory Evaluation section above, this rule will not have a significant impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment ( see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 [Pub. L. 104-121], the Coast Guard wants to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If this rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call Lieutenant A. Logman, Waterways Management Officer, Group/Marine Safety Office Long Island Sound, at (203) 468-4429.

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 would 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 would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

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

The Coast Guard published a document in the Federal Register on January 14, 2004 (69 FR 2066), adding 33 CFR 165.1317. In this document, paragraph (k) of the regulatory text was not as clear as it could have been. This correction amends the regulatory text published on January 14, 2004.

In rule FR Doc. 04-747 published on January 14, 2004 (69 FR 2066), make the following correction.

The states, under section 110 of the Clean Air Act as amended in 1990 (Act), must develop air pollution regulations and control strategies to ensure that state air quality meets National Ambient Air Quality Standards (NAAQS) established by EPA. The Act, under section 109, established these NAAQS which currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must send these regulations and control strategies to EPA for approval and incorporation into the Federally enforceable SIP, which protects air quality and contains emission control plans for NAAQS nonattainment areas. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

The states must formally adopt the regulations and control strategies consistent with state and Federal laws for incorporating the state regulations into the Federally enforceable SIP. This process generally includes a public notice, public comment period, public hearing, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state will send these provisions to EPA for inclusion in the Federally enforceable SIP. EPA must then determine the appropriate Federal action, provide public notice, and request additional public comment on the action. The possible Federal actions include approval, disapproval, conditional approval and limited approval/disapproval. If adverse comments are received, EPA must consider and address the comments before taking final action.

EPA incorporates state regulations and supporting information (sent under section 110 of the Act) into the Federally approved SIP through the approval action. EPA maintains records of all such SIP actions in the Code of Federal Regulations (CFR) at Title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The EPA does not reproduce the text of the Federally approved state regulations in the CFR. They are “incorporated by reference,” which means that the specific state regulation is cited in the CFR and is considered a part of the CFR the same as if the text were fully printed in the CFR.

Conformity first appeared as a requirement in the Act's 1977 amendments (Pub. L. 95-95). Although the Act did not define conformity, it stated that no Federal department could engage in, support in any way or provide financial assistance for, license or permit, or approve any activity which did not conform to a SIP which has been approved or promulgated.

The 1990 Amendments to the Act expanded the scope and content of the conformity concept by defining conformity to a SIP. Section 176(c) of the Act defines conformity as conformity to the SIP's purpose of eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of such standards. Also, the Act states “that no Federal activity will: (1) cause or contribute to any new violation of any standard in any area, (2) increase the frequency or severity of any existing violation of any standard in any area, or (3) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area.” The requirements of section 176(c) of the Clean Air Act apply to all departments, agencies and instrumentalities of the Federal government. Transportation conformity refers only to the conformity of transportation plans, programs and projects that are funded or approved under title 23 U.S.C. or the Federal Transit Act (49 U.S.C. Chapter 53).

A transportation conformity SIP is a plan which contains criteria and procedures for the State Department of Transportation (DOT), Metropolitan Planning Organizations (MPOs), and other state or local agencies to assess the conformity of transportation plans, programs and projects to ensure that they do not cause or contribute to new violations of a NAAQS in the area substantially affected by the project, increase the frequency or severity of existing violations of a standard in such area or delay timely attainment. 40 CFR 51.390, subpart T requires states to submit a SIP that establishes criteria for conformity to EPA. 40 CFR part 93, subpart A, provides the criteria the SIP must meet to satisfy 40 CFR 51.390.

EPA was required to issue criteria and procedures for determining conformity of transportation plans, programs, and projects to a SIP by section 176(c) of the Act. The Act also required the procedure to include a requirement that each state submit a revision to its SIP including conformity criteria and procedures. EPA published the first transportation conformity rule in the November 24, 1993, Federal Register (FR), and it was codified at 40 CFR part 51, subpart T and 40 CFR part 93, subpart A. The transportation conformity rule required the states to adopt and submit a transportation conformity SIP revision to the appropriate EPA Regional Office by November 25, 1994. The rule was subsequently revised on August 7, 1995 (60 FR 40098), and November 14, 1995 (60 FR 57179). The State of South Carolina submitted a transportation conformity SIP to EPA Region 4 on November 8, 1996. EPA did not take action on this SIP because the Agency was in the process of revising the transportation conformity requirements. EPA revised the transportation conformity rule on August 15, 1997 (62 FR 43780), April 10, 2000 (65 FR 18911), and August 6, 2002 (67 FR 50808), and codified the revisions under 40 CFR part 51, subpart T and 40 CFR part 93, subpart A—Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. of the Federal Transit Laws (62 FR 43780). EPA's action of August 15, 1997, required the states to change their rules and submit a SIP revision to EPA by August 15, 1998.

States may choose to develop in place of regulations, a Memorandum of Agreement (MOA) which establishes the roles and procedures for transportation conformity. The MOA includes the detailed consultation procedures developed for that particular area. The MOAs are enforceable through the signature of all the transportation and air quality agencies, including the Federal Highway Administration (FHWA), Federal Transit Administration (FTA) and EPA.

The Federal or state transportation conformity rule applies to applicable NAAQS nonattainment and maintenance areas in the state. The MPO, the DOT (in absence of a MPO), State and local Air Quality Agencies , EPA and U.S. Department of Transportation (USDOT) are involved in the process of making conformity determinations. Conformity determinations are made on programs and plans such as transportation improvement programs (TIP), transportation plans, and projects. The MPOs calculate the projected emissions that will result from implementation of the transportation plans and programs and compare those calculated emissions to the motor vehicle emissions budget (MVEB) established in the SIP. The calculated emissions must be equal to or smaller than the Federally approved MVEB in order for USDOT to make a positive conformity determination with respect to the SIP.

The State of South Carolina chose to address the transportation conformity SIP requirements using State rules that incorporate by reference portions of the Federal conformity rule and a Memorandum of Agreement (MOA) that provides the procedures for interagency consultation. The transportation conformity rule, 40 CFR 93.105, requires the state to develop specific procedures for consultation, resolution of conflict and public consultation. On November 19, 2003, the State of South Carolina, through the Department of Health and Environmental Control (DHEC), submitted the rules for transportation conformity to satisfy the conformity SIP requirement of the August 15, 1997 (62 FR 43780) conformity rule revision. This submittal also includes the revisions to the conformity regulations made on April 10, 2000 (65 FR 18911), and August 6, 2002 (67 FR 50808). DHEC gave notice of rule-making proceedings to the public on August 22, 2003 and held a public hearing on September 22, 2003. These amendments to the South Carolina Code of Regulations Chapter 61 became effective October 24, 2003.

EPA is approving the South Carolina transportation conformity rule submitted to the EPA Region 4 office on November 19, 2003, by the Deputy Commissioner of the South Carolina Department of Health and Environmental Control, with the exception of portions of the transportation conformity regulations affected by Environmental Defense Fund v. EPA, 167 F.3d 641 (D.C. Cir. 1999), including sections 102(c)(1), 118(e)(1), 120(a)(2), 121(a)(1), and 124(b).

EPA has evaluated this SIP revision and determined that the SIP requirements of the Federal transportation conformity rule, as described in 40 CFR part 51, subpart T and 40 CFR part 93, subpart A, have been met. Therefore, EPA is approving this revision to the South Carolina SIP.

EPA's rule requires the states to develop their own processes and procedures for interagency consultation among Federal, state, and local agencies and resolution of conflicts meeting the criteria of 40 CFR 93.105. The SIP revision must include the process and procedures to be followed by the MPOs, DOT, FHWA, FTA, local transit operators, the state and local air quality agencies and EPA before making conformity determinations. The transportation conformity SIP revision must also include processes and procedures for the state and local air quality agencies and EPA to coordinate the development of applicable SIPs with MPOs, state DOTs, FHWA and FTA.

The State of South Carolina developed a statewide consultation rule based on a Memorandum of Agreement (MOA) signed by the Columbia Area Transportation Study MPO, the Greenville Area Transportation Study MPO, the Spartanburg Area Transportation Study MPO, the Augusta Regional Transportation Study MPO, the Rock Hill/Fort Mill Area Transportation Study MPO, Florence Area Transportation Study MPO, the Anderson Area Transportation Study MPO, the Charleston Area Transportation Study MPO, the Grand Strand Area Transportation Study MPO, the Sumter Area Transportation Study MPO, the South Carolina DHEC, the South Carolina DOT, the FHWA South Carolina Division Office, FTA Region 4, and EPA Region 4. The requirement for interagency consultation is currently only applicable to the Cherokee County 1-hour ozone maintenance area, as it is the only area in South Carolina that had previously been designated nonattainment for any NAAQS. The interagency consultation requirement will become effective for any other areas designated as nonattainment under the 8-hour ozone or PM2.5 NAAQS. The consultation process developed by the South Carolina Department of Health and Environmental Control is unique to the State of South Carolina and is enforceable, effective October 24, 2003.

EPA is approving the aforementioned changes to the South Carolina SIP. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective March 29, 2004 without further notice unless the Agency receives adverse comments by March 1, 2004.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on March 29, 2004 and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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 SC-50. The official public file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public rulemaking file does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 9 to 3:30, excluding federal holidays.

2. Copies of the State submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the Bureau of Air Quality, South Carolina Department of Health and Environmental Control, 2600 Bull Street, Columbia, South Carolina 29201.

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

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

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking SC-50.” 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 laurita.matthew@epa.gov. Please include the text “Public comment on proposed rulemaking SC-50.” 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. Regulation.gov. Your use of Regulation.gov is an alternative method of submitting electronic comments to EPA. Go directly to Regulations.gov at http://www.regulations.gov, then select Environmental Protection Agency at the top of the page and use the go button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

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

2. By Mail. Send your comments to: Matt Laurita, Air Quality Modeling and Transportation Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Please include the text “Public comment on proposed rulemaking SC-50.” in the subject line on the first page of your comment.

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

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

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

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

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

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

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

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

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

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

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 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 March 29, 2004. 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).)

The site to be deleted from the NPL is: River Road Landfill Site.

EPA published a Notice of Intent to Delete (NOID) the River Road Landfill Site from the NPL on September 26, 2003, in the Federal Register (65 FR 45013). The closing date for comments on the NOID was October 28, 2003. EPA did not receive any comments on the proposed deletion. Therefore, no responsiveness summary is necessary for attachment to this Notice of Deletion.

EPA identifies sites that appear to present a significant risk to public health, welfare, or the environment and it maintains the NPL as the list of these sites. As described in § 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for remedial actions in the unlikely event that future conditions at the site warrant such action.

Deletion of a site from the NPL does not affect responsible party liability or impede EPA efforts to recover costs associated with response efforts.

This is a summary of the FCC's Erratum, FCC 03-35, released on December 23, 2003.

This is the second set of corrections. The first set of corrections was published in the Federal Register on September 25, 2003 (68 FR 55319). This document augments the corrections which were published in the Federal Register on September 25, 2003 (68 FR 55319).

In the FR Doc published in the Federal Register on April 21, 2003 (68 FR 19444), make the following corrections.