On August 22, 2003, the Office of Personnel Management (OPM) published a proposed rule (68 FR 50727) to redefine the North Dakota and Duluth, MN, Federal Wage System (FWS) appropriated fund wage areas. The proposed rule had a 30-day public comment period. OPM received 3 comments: one from the Minnesota National Guard Adjutant General Office; 1 from the manager of the Minnesota Army National Guard Organizational Maintenance Shop Number Five, Detroit Lakes; and 1 from an employee representative of FWS workers at the Detroit Lakes Maintenance Shop, Becker County, MN.

The proposed rule would redefine Clearwater and Mahnomen Counties and the White Earth Indian Reservation portion of Becker County from the North Dakota FWS wage area to the Duluth FWS wage area. Public comments supported these changes but also asked that OPM define all of Becker County, MN, to the Duluth wage area.

We proposed redefining Clearwater and Mahnomen Counties and the White Earth Indian Reservation portion of Becker County to the Duluth wage area because FWS employees who work for closely related Bemidji Area Indian Health Service (IHS) facilities in northern Minnesota are currently in two separate FWS wage areas. The Department of Health and Human Services requested that OPM redefine the North Dakota and Duluth wage areas so that blue-collar employees of its IHS facilities in northern Minnesota would be covered by one wage schedule.

OPM considers the following regulatory criteria under 5 CFR 532.211 when defining FWS wage area boundaries:

(i) Distance, transportation facilities, and geographic features;

(ii) Commuting patterns; and

(iii) Similarities in overall population, employment, and the kinds and sizes of private industrial establishments.

Based on our analysis of the regulatory criteria for defining appropriated fund FWS wage areas, we find that the criteria for Clearwater, Mahnomen, and Becker counties do not strongly favor defining the counties to one FWS wage area more than another. However, the IHS medical centers in northern Minnesota are in an unusual situation in that they are in a rural area that is economically and socially integrated by the local reservation system and not strongly integrated with the labor markets in either the North Dakota or Duluth FWS survey areas. It is desirable to have IHS employees aligned under one wage schedule because the area and population serviced by the medical centers serve as a unique labor market. However, there is insufficient private sector industry and FWS employment in northern Minnesota to meet OPM's regulatory requirements for establishing a separate FWS wage area for the IHS employees there. Because it is not feasible to establish a separate FWS wage area for IHS employees in northern Minnesota, the FWS employment locations must be defined to the area of application of an existing FWS wage area.

Analysis of OPM's regulatory criteria for defining FWS wage areas shows that the majority of IHS employment locations under the Bemidji Area in northern Minnesota are more closely aligned with the Duluth wage area than the North Dakota wage area. The White Earth, Red Lake, and Cass Lake Indian Health Centers are part of the Bemidji Area but their associated reservations are not currently located entirely within the Duluth wage area. The White Earth Indian Reservation occupies the northern portion of Becker County and most of Mahnomen County, while the Red Lake and Cass Lake Indian Reservations occupy the northern portions of Clearwater County. We therefore proposed that Clearwater and Mahnomen Counties be redefined from the North Dakota wage area to the Duluth wage area. We also proposed that the White Earth Indian Reservation portion of Becker County be redefined from the North Dakota wage area to the Duluth wage area. There are 11 IHS employees in Becker County and none in Clearwater or Mahnomen counties. There are several FWS employees stationed in the part of Becker County that we did not propose to define to the Duluth wage area.

The comments OPM received from Minnesota National Guard managers and employees request that all of Becker County, rather than just the White Earth Indian Reservation portion, be defined to the Duluth wage area. The reasons cited in the requests include organizational relationships in the Minnesota National Guard's Maintenance Division, the cost of living in Becker County, and an analysis of economic and salary indicators. Comments cited the fact that the Minnesota National Guard's Maintenance Division has similar facilities with similar blue-collar workforces in Detroit Lakes (Becker County), Cloquet (Carlton County), and Hibbing (St. Louis County).

We do not find a compelling reason to place all of Becker County in the Duluth wage area. Both Cloquet and Hibbing are located in the Duluth FWS survey area while Detroit Lakes is only 26 kilometers, or 16 miles, from the North Dakota FWS survey area. Under the statutory principles for determining FWS pay, we find that pay rates for FWS employees at Minnesota National Guard facilities in Detroit Lakes, Cloquet, and Hibbing are appropriate. We find no compelling reason that FWS pay rates should be the same in Detroit Lakes as in Cloquet or Hibbing. Detroit Lakes has little linkage with the labor market in the Duluth survey area while it has a significant linkage with the North Dakota survey area. For example, commuting rates from the 2000 Census show that only 0.03 percent of the Becker County resident workforce commutes to work in the Duluth FWS survey area. In comparison, 8.8 percent of the Becker County resident workforce commutes to work in the North Dakota FWS survey area.

We believe the mixed nature of the regulatory analysis findings for Becker County, including demographic and industry patterns, indicates that the non-IHS employment locations in Becker County should remain appropriately defined to the North Dakota wage area. Because the pay of FWS employees must be based on the local cost of labor rather than the local cost of living, the local cost of living is not a factor OPM considers when defining FWS wage area boundaries.

The Federal Prevailing Rate Advisory Committee (FPRAC), the national labor-management committee that advises OPM on FWS pay matters, reviewed and recommended these changes by consensus. Based on its review of the regulatory criteria for defining FWS wage areas, FPRAC recommended no other changes in the geographic definitions of the North Dakota and Duluth wage areas. The affected IHS employees in Becker County must be placed on the wage schedule for the Duluth wage area on the first day of the first applicable pay period beginning 30 days after the date this final regulation is published in the Federal Register .

I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would affect only Federal agencies and employees.

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

In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601, the Agency has determined that there will not be a significant economic impact on a substantial number of small entities. New provisions included in this rule will not impact a substantial number of small entities to a greater extent than large entities. The Agency did not receive any adverse comments to this determination in its proposed rule published at 68 FR 17316-17320 (April 9, 2003). All FSA direct and guaranteed loan borrowers and all entities affected by this rule are small businesses according to the North American Industry Classification System and the United States Small Business Administration. There is no diversity in size of the entities affected by this rule and the costs to comply with it are the same for all entities.

This rule revises loan eligibility criteria based on requirements of the 2002 Act. Consequently, a larger number of producers will likely be eligible for FSA credit. However, because of limited funding and restrictions on loan amounts, FSA expects that this rule will have little to no impact on the number of loans made. In fiscal year 2003, the Agency made approximately 28,700 direct and guaranteed loans.

The environmental impacts of this rule have been considered in accordance with the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. , the regulations of the Council on Environmental Quality (40 CFR Parts 1500-1508), and the FSA regulations for compliance with NEPA, 7 CFR parts 799, and 1940, subpart G. FSA has completed an environmental evaluation and concluded that the rule requires no further environmental review. No extraordinary circumstances or other unforeseeable factors exist which would require preparation of an environmental assessment or environmental impact statement. A copy of the environmental evaluation is available for inspection and review upon request.

This rule has been reviewed in accordance with Executive Order 12988. This rule preempts State laws that are inconsistent with it. This rule is not retroactive. Before judicial action may be brought concerning this rule, administrative remedies must be exhausted.

This rule is not subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. See the notice related to 7 CFR part 3015 subpart V published at 48 FR 29115 (June 24, 1983).

The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

This rule contains no Federal mandates under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

This rule is not a major rule under 5 U.S.C. 804(2) and, therefore, is not subject to the requirements of the SBREFA.

The Agency's information collection requirements are not affected by the final rule.

FSA is committed to compliance with the Government Paperwork Elimination Act and the Freedom to E-File Act, which require Government agencies in general and FSA in particular to provide the option of submitting information or transacting business electronically to the maximum extent possible. The forms and other information collection activities required for participation in the program are not yet fully implemented for the public to conduct business with FSA electronically. However, loan application forms are available electronically for downloading through the USDA eForms Web site at http://www.sc.egov.usda.gov.

The title and number of the Federal assistance programs, as found in the Catalog of Federal Domestic Assistance, to which the rule applies are:

10.406—Farm Operating Loans;

10.407—Farm Ownership Loans.

In response to the proposed rule published on April 9, 2003, (68 FR 17316-17320) seven respondents, including farm interest groups, a State Department of Agriculture, and individuals from five states and the District of Columbia commented. The comments involved all sections of the proposed rule and generally supported most of the changes proposed by the Agency.

Some of the comments dealt with the administrative aspects of program delivery. This rule provides requirements and guidelines, not internal Agency procedures and processes. The Agency will issue handbook amendments and internal notices to provide processes for Agency personnel to follow in administering the regulations. These internal procedural documents are available at any FSA office by request.

The proposed rule provided an exception to the general rule prohibiting farm loans to borrowers who have received prior debt forgiveness. As required by section 5319 of the 2002 Act, the rule proposed that FSA farm loan borrowers who received debt forgiveness on not more than one occasion resulting directly and primarily from a major disaster or emergency designated by the President on or after April 4, 1996, under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq. ) may be eligible for direct or guaranteed farm operating loans to pay annual farm or ranch operating expenses. The rule also proposed that such debt forgiveness occur within three years following the onset of the disaster or emergency.

Three commentors requested clarification of the timeline for when the exception will apply and recommended that “onset” be defined. These commentors also suggested that the second mention of the word “onset” in 7 CFR 762.120(a)(2)(iii), 1941.12(a)(8)(ii)(C) and 1941.12(b)(11)(ii)(C) be changed to “designation date” or “disaster date.” The Agency agrees that the reference to “onset” is confusing and has, therefore, revised the first occurrence to state “the beginning date of the incidence period.” The incidence period is defined in Agency regulations at 7 CFR part 1945, subpart A as “the specific date or dates during which a disaster occurred.” For further clarification, the final rule also changes the second appearance of the word “onset” in 7 CFR 762.120(a)(2)(iii), 1941.12(a)(8)(ii)(C), and 1941.12 (b)(11)(ii)(C) to “designation.”

Two commentors suggested that loan eligibility under this exception be expanded to those who apply for, rather than receive, servicing within three years of the disaster or emergency's onset. The concern was that implementation of loan servicing may take months or years, and that borrowers should not be penalized for delays if they applied for loan servicing in a timely fashion. While FSA recognizes that loan servicing takes time, it does not adopt this suggestion. The proposal would be very difficult to implement since the borrower does not apply for all types of debt forgiveness, e.g. debt cancellation from bankruptcy or Government loss from payment of a guaranteed loss claim. When the debt forgiveness occurs is a brighter line of reference and will result in consistent implementation of the loan making policy.

Two comments suggested that the regulation consider farmers who are not more than 30 days past due at the onset of the disaster for this exception. Commentors referred to Agency regulations wherein borrowers are considered “past due” for 30 days after a scheduled payment is not made, after which they are considered “delinquent.” The Agency recently published a rule which eliminates the 30-day past due period prior to a borrower becoming delinquent. Therefore, this comment is not adopted.

One comment suggested that this exception be triggered by any type of disaster declaration. Section 5319 of the 2002 Act specifically refers to “a major disaster or emergency designated by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq. )” when authorizing this exception. The Agency must follow the law in defining the applicable disaster; therefore, the comment is not adopted.

One comment suggested that the producer must have been an FSA borrower at the time of the designation. This requirement is implicit in the regulation because borrowers must have been current on their FSA debt before the disaster occurred. Therefore, no change is needed.

One comment suggested that only primary disaster counties be considered for this exception. This comment is not adopted because the Consolidated Farm and Rural Development Act section 321(a) (7 U.S.C. 1961(a)) provides that disaster areas include both primary and contiguous counties.

One comment suggested that the borrower must have been current at the time of the Presidential designation, and that this current status not be the result of the borrower having their account rescheduled or reamortized. This comment is not adopted because it would add unnecessary complexity to eligibility determinations and is too restrictive in the Agency's opinion. Primary Loan Servicing, which includes rescheduling and reamortization, is based on the borrower developing a feasible plan, and the delinquency has to be beyond the borrower's control. The suggested limitation, therefore, is not adopted.

One comment suggested that the time between the disaster and the loss be reduced from three to no more than two years. This comment is not adopted because it could often take more than two years for the total impact of a disaster to be reflected in the financial performance of the operation.

Another comment suggested that the borrower must have received an emergency loan as a result of the disaster to show that the loss was significant and contributed to the operation's need for debt forgiveness. A similar comment suggested that the borrower document that they applied for an emergency loan, Primary Loan Servicing, or Disaster Set-Aside as a result of the disaster to qualify for this exception. This comment on emergency loans is not adopted because it is too restrictive. Currently, interest rates for FSA operating loans are lower than the emergency loan rate. It is conceivable, therefore, that a farmer could obtain an operating loan rather than an emergency loan, but still be impacted by the disaster. This rule, however, does require that the borrower receive debt forgiveness, such as Primary Loan Servicing, within 10 years of the emergency designation.

As required by section 5001 of the 2002 Act, this rule revises an eligibility requirement for FSA's direct FO loan program. Applicants may now be eligible for FO loans if they participated in the business operations of a farm or ranch for at least three years, rather than having operated a farm or ranch for that length of time. FSA proposed to define farm participation consistently with its direct OL program, with regard to acceptable farm experience and on-the-job training. The participation requirement proposed stated that applicants must have (1) owned, managed, or operated a farm or ranch business for at least three years worth of complete production and marketing cycles; (2) have been employed as a farm manager or farm management consultant for at least three years worth of complete production and marketing cycles; or (3) participated in the operation of a farm or ranch by being raised on or working on a farm or ranch and having had significant responsibility for the day-to-day decision-making for at least three years' worth of complete production and marketing cycles. The proposed rule also included a provision limiting the three years of participation to the five years prior to the date the loan application is submitted, which is consistent with OL eligibility requirements.

Four comments suggested that the Agency delete specific reference to when the participation took place. These commentors argued that this part of the rule could adversely affect loan applicants who have significant and otherwise qualified experience, but may have been in school or the armed services for a period of time before returning to farming as a career. One of these commentors recommended that the rule be changed to three years in the last eight years. The Agency agrees that the five-year limitation is too restrictive and could exclude many otherwise eligible applicants from obtaining needed loan funds. Rather than delete specific reference to when the participation took place, because recent farming experience is still a better indicator of future success, the final rule will increase to 10 years the period of time when participation in the business operations of a farm could have occurred.

Three comments suggested that the Agency clarify what is meant by “significant responsibility for day-to-day decisions.” Commentors suggested that examples of eligibility determination criteria be defined in the rule or through administrative notice or handbook, since it would be impractical to come up with an exhaustive list for what actions constitute “significant responsibility.” Commentors also recommended that the rule describe the types of documentation ( e.g. , affidavits) that will satisfy eligibility requirements. The Agency agrees that it would be impractical to come up with an exhaustive list for what actions constitute “significant responsibility;” however, some examples have been added for clarity. As suggested, FSA will issue administrative notices or handbook amendments, as necessary, to provide further guidance on these issues.

One comment recommended FSA consider findings of discrimination by the Agency when assessing farming history to determine when the applicant's participation took place. The concern was that discrimination could have forced the applicant to stop farming and, therefore, render the applicant ineligible under this policy. The Agency is increasing to 10 years the period of time when participation in the business operations of a farm could have occurred. This change should alleviate the concern since it allows for more years of no farming.

One comment suggested that the Agency require the three years of participation to have occurred after the applicant reaches age 18. This comment is not adopted because it is too restrictive and may adversely impact beginning farmers without providing any real benefit to the applicant or the Agency.

Section 5314 of the 2002 Act authorizes FSA to consider reamortization of amortized SAA recapture debt for up to 25 years from the date of the original amortization agreement when the borrower becomes delinquent on this non-program debt. To be eligible for this reamortization, the default must be due to circumstances beyond the borrower's control, and the borrower must have acted in good faith in attempting to repay the recapture amount. Because such reamortization can be considered even when a borrower has no outstanding FSA loans, or when the SAA was triggered by all FSA loans being paid in full, FSA is amending 7 CFR 1951.901, 1951.907, 1951.909, and 1951.914 to comply with this requirement.

Comments supported the proposed 30-day notification of an incomplete application established in § 1951.907(e) for delinquent non-program borrowers who have only an SAA. No adverse comments were received; therefore, this policy is being adopted as internal Agency policy. It is not published in this rule.

As SAA amortizations are non-program debt, adverse decisions regarding these accounts are not appealable, but are reviewable by the next level Agency official according to 7 CFR 1951.454. One commentor indicated that the proposed language did not clearly refer to these review rights. The Agency concurs with the comment and has clarified the language in § 1951.909.

One commentor felt that the Agency should be able to use deferral, disaster set-aside, rescheduling, consolidation, and limited resource interest rates on SAA amortizations in addition to reamortization. The commentor stated that Congress, had that been its intent, could have confined restructure to reamortization by referring to 7 U.S.C. 1991(b)(3)(a). However, that provision of law does, in fact, include loan consolidation and rescheduling, and the 2002 Act specifically refers to reamortization only. Further, the use of limited resource rates would conflict with 7 U.S.C. 2001(e)(7)(C), which specifies how the maximum interest rate for SAA amortizations is determined. The comment, therefore, is not adopted.

One commentor referred to language in the Conference Committee Report which suggested that the Agency allow appraisal negotiation and the use of “agriculture value” when determining SAA recapture. Appraisal negotiation, whereby two or more appraisals are used to obtain a value, however, is required by statute (7 U.S.C. 2001) only for Primary Loan Servicing. A borrower who disagrees with the value determined by the appraisal for SAA recapture may appeal to the National Appeals Division. Thus, the Agency will not implement a multi-appraisal system. Current appraisal requirements fully comply with Federal and state laws, and have not caused any problems. The suggestion would increase administrative costs and burden and, thus, is not adopted.

With regard to “agriculture value” appraisals, the Agency notes that the SAA was established by Congress to protect the interest of the taxpayer. In implementing the Consolidated Farm and Rural Development Act, the Agency must ensure consistency and comply with all appraisal standards. Therefore, only market value appraisals will be used when making a determination of SAA recapture. This value is established when each SAA contract is executed, represents the true value of the property, and reflects the total appreciation the borrower has received after having debt forgiven by the Government.

This action is not subject to the provisions of Executive Order 12866 since it involves only internal Agency management. This action is not published for prior notice and comment under the Administrative Procedure Act since it involves only internal Agency management and publication for comment is unnecessary and contrary to the public interest.

The Catalog of Federal Domestic Assistance numbers for the programs impacted by this action are as follows:

10.768—Business and Industry Loans, and

10.769—Rural Development Grants (RBEG) (TDG).

This final rule does not revise or impose any new information collection requirements from those previously approved by the Office of Management and Budget.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and tribal governments, and the private sector. Under section 202 of the UMRA, the agency generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Final mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the agency to identify and consider a reasonable number of regulatory alternatives and adopt the least burdensome alternative that achieves the objective of the rule.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and tribal governments, or the private sector. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.

This action has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” The Agency has determined that this action does not constitute a major Federal action significantly affecting the quality of the human environment and in accordance with the National Environmental Policy Act of 1969, Public Law 91-190, an Environmental Impact Statement is not required.

The Rural Business-Cooperative Service (RBS) is amending the regulation to recognize a transition formula that will be used for allocating funds to State Offices. The transition formula limits allocation shifts to any particular State in the event of changes from year to year of the basic formula, the basic criteria, or the weights given the criteria.

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

In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601, the Agency has determined that there will not be a significant economic impact on a substantial number of small entities. All Farm Service Agency direct loan borrowers and all entities affected by this rule are small businesses according to the North American Industry Classification System, and the United States Small Business Administration. There is no diversity in size of the entities affected by this rule and the costs to comply with it are the same for all entities. FSA stated its finding in the proposed rule at 68 FR 1170-1172, January 9, 2003, that the rule will not have a significant economic impact on a substantial number of small entities, and received no comments on this finding.

In the U.S. there are 86,000 FSA direct farm loan borrowers. In this final rule, FSA is amending its regulations to eliminate the 30-day past-due period prior to a determination that the borrower is “delinquent” and clarify the use of the terms “delinquent” and “past due” with regard to direct loan servicing and offset. Because the regulation only allows debt writedown after a borrower becomes delinquent, this change would allow Farm Loan Programs (FLP) borrowers to receive debt writedown on the day after a missed payment, assuming all other primary loan servicing criteria are met, instead of waiting 31 days.

While this rule will change the definition of the word “delinquent” with regard to all servicing and offsets, the overall impact of the rule will be very limited because it will not affect the “90 days past due” criteria that is currently used for sending initial notices of primary loan servicing under 7 CFR part 1951, subpart S, as this requirement is statutory (7 U.S.C. 1981d).

Currently, only 906 borrowers are less than 30 days past due. With these changes, all of these borrowers would immediately be eligible for consideration of all Primary Loan Servicing options. The Agency estimates that this change will have no effect on the cost of applying for Primary Loan Servicing. Therefore, the costs of compliance from this rule are deemed not significant. Accordingly, pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Agency certifies that this rule will not have a significant economic impact on a substantial number of small entities.

The environmental impacts of this final rule have been considered in accordance with the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. , the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulations for compliance with NEPA, 7 CFR parts 799, and 1940, subpart G. FSA completed an environmental evaluation and concluded the rule requires no further environmental review. No extraordinary circumstances or other unforeseeable factors exist which would require preparation of an environmental assessment or environmental impact statement. A copy of the environmental evaluation is available for inspection and review upon request.

This rule has been reviewed in accordance with Executive Order 12988, Civil Justice Reform. In accordance with this Executive Order: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) except as specifically stated in this rule, no retroactive effect will be given to this rule; and (3) administrative proceedings in accordance with 7 CFR part 11 must be exhausted before seeking judicial review.

For reasons contained in the notice related to 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983) the programs within this rule are excluded from the scope of E.O. 12372, which requires intergovernmental consultation with State and local officials.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments or the private sector of $100 million or more in any 1 year. When such a statement is needed for a rule, section 205 of the UMRA requires FSA to prepare a written statement, including a cost and benefit assessment, for proposed and final rules with “Federal mandates” that may result in such expenditures for State, local, or tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the most cost effective or least burdensome alternative that achieves the objectives of the rule.

This rule contains no Federal mandates, as defined under title II of the UMRA, for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

The amendments to 7 CFR parts 1951 and 1965 contained in this rule require no revisions to the information collection requirements that were previously approved by OMB control numbers 0560-0161 and 0560-0158 under the provisions of 44 U.S.C. chapter 35. The information collections currently approved by OMB under control number 0560-0171 include the amendment to 7 CFR part 1962 contained in this rule.

These changes affect the following FSA programs as listed in the Catalog of Federal Domestic Assistance:

10.404—Emergency Loans;

10.406—Farm Operating Loans;

10.407—Farm Ownership Loans.

Currently, borrowers are considered “past-due” for 30 days after a scheduled FLP payment is not made, after which they are considered “delinquent”. This is not consistent with the terminology used by FSA Farm Programs (FP) where no “past-due” period exists prior to delinquency. For consistency, FSA is amending 7 CFR part 1951, subparts C and S, 7 CFR part 1962, subpart A, and 7 CFR part 1965, subpart A to eliminate the 30-day “past-due” period prior to a borrower becoming delinquent. Because 7 CFR part 1951, subpart S only allows debt writedown after a borrower becomes delinquent, this change will allow FLP borrowers to receive debt writedown on the day after a missed payment, assuming all other primary loan servicing criteria are met, instead of waiting 31 days. This will allow servicing to be completed earlier with no additional loss to the government, as the additional accrued interest during the 30 day period is often simply added to the writedown amount which would have been calculated on the first day the account was “past-due”. In addition, the definition of the word “delinquent” with regard to all servicing and offsets is revised for consistency. The rule does not affect the “90 days past due” criteria that is currently used for sending initial notice of primary loan servicing under 7 CFR part 1951 subpart S, as this requirement is statutory (7 U.S.C. 1981d).

In response to the proposed rule published January 9, 2003 (68 FR 1170-1172), only two comments were received. All comments were considered and are addressed as follows.

One commentor felt that it is helpful for the term delinquency to have the same definition in all FSA programs, and for this definition to agree with the common usage of the term. The commentor also felt that the use of the present “past due/delinquent” terminology (whereby a borrower who is 90 days past due is 60 days delinquent) is often confusing for both borrowers and agency personnel. The commentor also felt the earlier writedown possibility could be helpful to an operation which needs such loan restructuring to begin farm operations for a crop year. The Agency agrees.

However, as the taking of all assets is required when restructuring a delinquent account under primary loan servicing (7 CFR part 1951 subpart S), this commentor was concerned that FSA would be required to take a lien on all assets where this would not have been required in the past. The commentor suggests that FSA adopt the current requirement used when making a new loan whereby security is not required beyond 150 percent of the FSA loan. In consideration of this comment, the Agency notes the difference in making a new loan and restructuring delinquent loans. The 150 percent requirement is reasonable and protects the Government's interest when making a new, fully secured loan over a term that is commensurate with the life of the security. However, in primary loan servicing, FSA is often working with an account that is already undersecured and in serious financial difficulty. Further, chattel secured loans are almost always rescheduled over 15 years from the date of restructure, which is well beyond the useful life of most chattels. The additional security is needed to minimize the Government's risk of loss. Therefore, the commentor's suggestion on taking only 150 percent loan security at restructuring was not adopted.

Another commentor supported the proposed rule, but had several concerns and felt the change could have unintended consequences. With regard to unintended consequences, the Agency feels that it has given adequate consideration to the changes caused by this rule. It recognizes however, that all possible results of a rule cannot be considered in a program that covers over 80,000 borrowers with widely diverse financial situations. The commentors' specific concerns included the following:

Under the Debt Collection Act (31 U.S.C. 3720B), FSA generally cannot make a loan to a borrower who is delinquent on a non-tax Federal debt. The commentor states that this rule would prevent a borrower from getting an FSA loan 30 days earlier. This rule does not revise loan eligibility regulations. This law is implemented by 31 CFR 285.13 which defines “delinquent status” as 90 days past due. No change was made based on this comment.

The commentor suggested that borrowers will not know that they may receive a writedown immediately after becoming past due, as they are not normally notified of servicing options until they become 90 days past due. The commentor also states that it is essential to allow, but not require, borrowers to apply for servicing prior to becoming 90 days past due and for them to have 60 days to apply for loan servicing after receiving a packet. The Agency agrees, but believes that the current notification procedures are adequate. In general, borrowers are informed of all servicing options, in accordance with § 331D of the Consolidated Farm and Rural Development Act (7 U.S.C. 1981d), when they are distressed ( i.e. unable to develop a feasible plan though current), in non-monetary default, or request servicing when they are 90 days past due. After notice, they have 60 days to apply for servicing. This process need not be changed by this rule.

The commentor stated that the proposed change could allow the Agency to begin offset during the 30 days immediately following a missed payment by the borrower. The Agency disagrees, but has amended 7 CFR 1951.102(b)(13), to require that the debt be 90 days past due for offset or in default of other obligations to be feasible. The Agency has removed the reference to “60 days delinquent”. Therefore, the situation the commentor is concerned about should not occur.

The commentor stated that the interaction between this rule, as proposed, and the above Disaster Set-Aside (DSA) proposed rule could prevent borrowers from applying for DSA immediately after they have missed a payment. The Agency agrees with this interpretation and revised its DSA regulation by final rule on September 25, 2003 (68 FR 55299-55304), to allow the Agency to accept DSA applications until the borrower becomes 90 days past due.

The commentor questions the need for FLP to be consistent with FP terminology, as FP mainly administers commodity loans. They instead suggest equating the word default in the guaranteed program with the word delinquent in the direct loan program, and that “30 days” should be retained to remain consistent with the guaranteed program. The Agency continues to believe that the consistency and clarity of making the terms “past due” and “delinquent” synonymous, as supported by the other commentor, will contribute to a more consistent delivery of the FLP program. With regard to the comparison of the direct and guaranteed loan programs, FSA believes that the term “default” is used in different contexts. In the direct FLP program, the Promissory Note (Form FSA 1940-17) states that a default occurs when the borrower fails “to pay when due any debt evidenced by this note or perform any covenant of agreement under this note.” Upon default, FSA must service the debt as required under its regulations and can offer many restructure options to the borrower. The use of the term “default” in the guaranteed program as being 30 days after a payment is missed simply indicates the date when a lender must bring a past due payment to the attention of FSA and begin consideration of additional servicing actions. The guaranteed lender will then offer restructure or debt servicing options based on their own policies, and in accordance with FSA regulations. The guaranteed loan policy is consistent with the practice of private sector lenders who generally do not consider a loan in default until it is at least 30 days past due.

The commentor indicates that the use of the term “delinquent” attaches a stigma to the account and could hinder the borrower's ability to obtain or reschedule financing from private creditors. The commentor states that the 30 day past due period is much like the “golden hour” after an injury “when medical intervention has the greatest chance of success.” Concerning the effect this change will have on private lenders, the Agency believes that lenders base commercial lending decisions on creditworthiness, profitability, security, and other financial data. The Agency does not believe that FSA's terminology change will affect these decisions.

On November 20, 2003 (68 FR 65386), the NRC published a direct final rule amending its regulations in 10 CFR part 50 related to decommissioning trust fund provisions to correct typographical errors and make minor changes to a final rule entitled “Decommissioning Trust Provisions,” promulgated by the NRC on December 24, 2002 (67 FR 78332). In the direct final rule, NRC stated that if no significant adverse comments were received, the direct final rule would become effective on December 24, 2003. The NRC did not receive any comments on the direct final rule. Therefore, this rule is effective as scheduled.

Before Commissioners: Pat Wood, III, Chairman; Nora Mead Brownell, Joseph T. Kelliher, and Suedeen G. Kelly.

1. In this order, the Commission addresses requests for rehearing of Order No. 2002, which amends the Commission's regulations for licensing of hydroelectric projects by establishing a new licensing process (the integrated process). 1 The final rule also retains the existing traditional licensing process  2 and the alternative licensing procedures (ALP). 3 Requests for rehearing were filed by the Hydropower Reform Coalition (HRC), Edison Electric Institute (EEI), and Western Urban Water Coalition (WUWC). 4

2. The final rule provides that after a transition period ending July 22, 2005, the integrated process will be the default licensing process, but a potential license applicant may apply for authorization to use the traditional process or ALP. 5 The standard for granting a request to use the traditional process or ALP is “good cause shown.” 6

3. Potential applicants requesting to use the traditional process and commenters thereon are encouraged to address various criteria. These are: (1) Likelihood of timely license issuance; (2) complexity of the resource issues; (3) level of anticipated controversy; (4) relative cost of the traditional process compared to the integrated process; (5) the amount of available information and potential for significant disputes over studies; and (6) other factors believed by the requester or commenter to be pertinent. 7

4. HRC states that it supports these criteria, but that the “good cause” standard should be specifically linked to overcoming the presumption that the integrated process is the default. Otherwise, it fears, the meaning of “good cause” and the significance of the criteria will be ambiguous. HRC requests that we define good cause to mean that use of the traditional process is more likely than the integrated process to maximize coordination of all pertinent regulatory processes, assure timely adoption and implementation of a study plan, and prevent, resolve, or narrow disputes related to the study plan and environmental protection measures. 8

5. EEI, supported by WUWC, requests that we clarify that good cause may be shown notwithstanding that a licensing proceeding is likely to be complex and controversial. In support, EEI suggests that non-licensees will attempt to thwart requests to use the traditional process by manufacturing issues and controversies. It also reiterates comments on the notice of proposed rulemaking  9 that complexity and controversy may make the integrated process less suitable than the traditional process because the former is more collaborative in nature, and that the cost of the integrated process may be so great as to outweigh all other considerations.

6. We are not persuaded that the regulations need to be changed or clarified in this regard. The outcomes included in HRC's suggested definition may weigh in favor of a good cause finding, but we are not prepared in advance of any requests being filed to conclude that they are the only, or the most important, considerations in all possible cases. We agree with EEI that good cause may be shown notwithstanding that a license proceeding is likely to be complex or controversial, but are also not prepared to speculate on the particular circumstances of future applications in which that would be the case.

7. The first step in the integrated process is the potential applicant's notification of intent (NOI) to file a license application and the filing and distribution of the Pre-Application Document (PAD). 10 The PAD is a tool for identifying issues and information needs, including for scoping under the National Environmental Policy Act (NEPA), 11 developing study requests and study plans, and providing information for the Commission's NEPA document. It is a precursor to the environmental exhibit of the license application. It should include all engineering, economic, and environmental information relevant to licensing the project that is reasonably available when the NOI is filed and can be obtained with the exercise of due diligence.

8. Because the PAD plays an essential role in the integrated process, HRC requests that we incorporate into the regulations disincentives for filing and distributing a deficient PAD. Specifically, HRC recommends that a PAD be defined as deficient if the potential applicant fails to properly summarize existing information; show reasonable cause for any content deficiencies; or exercise due diligence in obtaining and presenting existing, relevant materials. Sanctions for a deficient PAD would include: Forfeiture of the potential applicant's right to contest additional information requests (AIRs), a reduced license term, or imposition of preliminary environmental protection measures during the term of annual licenses that may be issued.

9. We decline to adopt this recommendation. HRC's proposed definition largely restates the due diligence requirement that is already in the regulations. 12 Its proposed sanctions miss the mark. There is no incentive to prepare a poor quality PAD, as that would only result in additional data gathering or study requirements in the Commission-approved study plan. In any event, the process leading to the study plan should cure any such deficiencies, which makes the matter of post-application AIRs irrelevant. Forfeiture of a potential applicant's opportunity to contest an AIR would simply impair the Commission's ability to evaluate the merits of the request. Reducing the license term and imposing interim environmental measures are also not relevant to the curing of any deficiencies. As a general matter moreover, we are disinclined to establish a regime of sanctions before we have gained experience in the practical implementation of this new requirement. 13

10. The final rule establishes a formal study dispute resolution process in which resource agencies or Indian tribes with mandatory conditioning authority may dispute any element of the Commission-approved study plan that pertains to the exercise of its conditioning authority. This dispute is submitted to an advisory panel of technical experts. The advisory panel convenes a technical conference before it makes its recommendation, which any interested party may attend, and at which the panel receives additional information and arguments in its discretion before it makes a recommendation based on the record to the Director of the Office of Energy Projects. The Director then resolves the dispute. 14

11. In recognition of the fact that the potential applicant bears the burden of conducting any studies required in the approved study plan, we afforded it the right to submit comments and information to the advisory panel. This occurs prior to the technical conference. 15

12. HRC argues that it is unfair and unlawful to grant a potential license applicant this right while other interested entities that are not parties to the dispute may only make submissions if requested to do so by the panel. HRC states that the only apparent reason for the policy is to reduce the process burden, which it contends is not a logical reason for the distinction between potential applicants and others. It adds that the policy will bias the Director's decision in favor of the potential license applicant. In support, HRC notes that the Administrative Procedures Act (APA) generally requires that all interested parties must be given an opportunity to submit facts and arguments, 16 and that the courts have held that the APA should be construed expansively so that the record does not reflect only the views of the project proponent. HRC therefore recommends that we modify Section 5.14(i) to permit any interested party to make a written filing regarding a formal dispute.

13. We decline to make the requested modification. The formal dispute resolution process applies only to disputes between the Commission staff and agencies or Indian tribes with mandatory conditioning authority that relate to the impact of the study plan on the ability of those entities to exercise their statutory authorities. Although other participants in the process may be interested in the outcome of that dispute, the potential applicant clearly has much more at stake because they bear the expense of implementing the study plan. These other participants also do not have the burden that conditioning agencies have to support a condition with substantial evidence. 17

14. We disagree as well with HRC's suggestion that the formal dispute resolution process excludes other interested entities from making submissions with respect to matters in dispute. The formal process applicable to disputes filed by conditioning agencies occurs only after all entities with an interest in the potential application have had the opportunity to submit information and arguments in support of their study requests during the development of the Commission-approved study plan, which includes meetings for the specific purpose of resolving differences. Any disputes that parties without conditioning authority have with the potential applicant are resolved in that context. As noted, these other parties enjoy an additional opportunity to participate in the technical conference during any formal dispute resolution process that may be initiated with respect to their issues by an entity with mandatory conditioning authority. We anticipate that members of dispute resolution panels will act reasonably when deciding how such participation should be structured.

15. As to assertions of a biased record, the advisory panel will have before it the submissions of the disputing agency and the potential applicant, plus all other information filed during the proceeding. Under these circumstances, we are confident that the panel will have all of the information needed to make an unbiased recommendation.

16. EEI contends that study plan orders are final Commission orders binding on potential license applicants and are therefore subject to immediate rehearing and judicial review. EEI adds that study plan orders are inequitable because they are not binding on other parties, apparently in the sense that other parties can make subsequent requests to modify the required studies or make additional information gathering and study plan requests, 18 or may require additional information in the context of their exercise of independent statutory authority, such as acting on applications for water quality certification under section 401 of the Clean Water Act (CWA). 19 EEI states that the Commission should make explicit provisions for rehearing and judicial review of study plan orders or, preferably, modify the rule by making study plan orders advisory.

17. Study plans are not advisory, and EEI's request to consider them as such is denied. As to EEI's other arguments, once the Director makes a study plan determination pursuant to the authority delegated to the Director by the Commission in newly adopted section 375.308(a)(i), 20 that determination may then be appealed to the Commission in a request for rehearing pursuant to section 375.301(a) and 385.713 of the Commission's regulations. 21 Any such occurrence should however be exceedingly rare. The study plan development process was designed to ensure that study requests are subject to established standards, that parties work together to resolve differing opinions, and that the Director's order establishing the study plan rests on the standards and the complete record developed by the participants with the advice and assistance of Commission staff. Whether judicial review of the Commission's decision on rehearing is appropriate is a matter to be determined by the court from which judicial review is sought.

18. The rule makes no express provision for parties to make additional information requests following the filing of a license application. Rather, it concludes that the multiple opportunities to request information and studies and to resolve study disputes during the pre-application phase of the proceeding will ensure that the application will include all information needs. 22

19. HRC states that as a result the last opportunity for new information requests will be in response to the preliminary license proposal (or draft license application, should the potential applicant elect to file one), but that there could be significant changes between the preliminary license proposal and the filed application that would require additional information. This is possible, but unlikely. In any event, and as we previously explained, the possibility of material changes in circumstances has always been inherent in the license application process, and the Commission has always exercised its authority to require additional information in appropriate cases, on its own initiative or in response to the request of a party. 23

20. Section 5.15(f)  24 provides that requests for new information gathering or studies in response to a potential applicant's updated study report describing its overall progress in implementing the study plan and schedule must demonstrate “extraordinary circumstances.” HRC states that this term, which is not defined in the regulations, should be defined as “factors that could not have been predicted or foreseen under the circumstances, especially those where there is a change in regulation or law.”  25

21. We agree in general that unforeseeable events, including changes in laws or regulations, may constitute extraordinary circumstances with respect to identifying information needed for an analysis of a license application. We do not however wish to limit our discretion in this regard to the occurrence of such events, and the mere fact that an event was not foreseeable does not establish a connection between it and a request for additional information. We expect requesters to fully explain the circumstances supporting their requests, and will act reasonably when we consider them.

22. The Commission sometimes issues in non-controversial cases an environmental assessment (EA) that is not preceded by a draft EA. The integrated process regulations reflect that fact by establishing slightly different procedures depending on whether or not a draft EA is needed. 26 HRC does not state that this practice is unlawful, but suggests that it is generally inconsistent with the thrust of NEPA and the Council on Environmental Quality's (CEQ) regulations, as well as our commitment to attach draft license articles to environmental documents by reducing the parties' opportunities for review and comment. HRC adds that the opportunity to comment on draft EAs can result in changes and corrections that reduce or eliminate requests for rehearing. HRC concludes that a draft EA should be omitted, if ever, only in the most benign of cases. It recommends that we eliminate sections 5.24 and 5.25, and instead include a section which defines limited circumstances under which a draft EA will not be required, based on a list of factors found in CEQ's regulations pertaining to whether or not a proposed action requires an EIS.

23. There is no need to make the changes recommended by HRC. The Commission has exercised its discretion in this regard very conservatively and the integrated process will enhance the parties' opportunities for input on and review of the record upon which the Commission makes its decisions. Sections 5.24 and 5.25 are moreover purely procedural provisions that set forth steps in the integrated process. They have no bearing on the decision of whether or not a draft EA is required.

24. HRC believes there may be an inconsistency between the document availability requirements of section 5.2(a) and the PAD distribution requirements of section 5.6. Section 5.2(a) states that a potential applicant must make the PAD and any materials referenced therein available for public inspection at its principal place of business or other accessible location, and to send the same to any requester at the reasonable cost of reproduction and postage. Federal and State fish and wildlife agencies and Indian tribes are, however, required to be provided with these materials without charge.

25. Section 5.6(a) requires the PAD to be distributed to Federal, State, and interstate resource agencies, Indian tribes, local governments, and members of the public likely to be interested in the proceeding. Section 5.6(c)(2) provides that sources of information referenced by, rather than included in, the PAD, such as scientific studies and voluminous data, must be provided upon request to recipients of the PAD. HRC is uncertain why the requirements of these sections are not identical, and requests that we clarify that both the PAD and materials referenced therein are available to all recipients of the PAD at no charge.

26. We are granting the requested clarification. The document availability requirements of section 5.2(a) reflect the requirement of FPA section 15(b)(2)  27 that a potential new license applicant maintain a “library” of relicensing materials which interested entities may examine and from which they may request documents to be reproduced at cost. It also reflects in part our previously existing requirement that the materials from the library be provided to certain Federal and State agencies at no charge. 28

27. The PAD contents are related to the relicensing library contents, but are not identical. The PAD and materials referenced therein are to be distributed at no charge to the recipient, as is ordinarily the case with any other document required to be filed with the Commission or served upon other entities. This is consistent with our discussion of the industry's cost concerns in the final rule, wherein we reduced the content requirements for the PAD by permitting supporting materials to be referenced, and encourage potential applicants to take advantage of technological advances by arranging for distribution over the Internet, through CD-ROMs, or by other electronic means. 29 To the extent a potential license applicant elects to include in its relicensing library any materials not required to be included in or referenced in the PAD (or otherwise required to be served on the parties), the potential applicant may charge entities other than Federal and State fish and wildlife agencies and Indian tribes reasonable costs of reproduction and postage.

28. The regulations provide that an application to amend a license or an amendment to a pending license application is required to include a new application for a water quality certification if “the amendment would have a material adverse impact on the water quality in the discharge from the project.”  30 HRC states that this provision is inconsistent with Alabama Rivers Alliance v. FERC. 31 The court there interpreted the requirement of CWA section 401(a)(1)  32 that a state water quality certification must be provided or waived for “any activity” which “may result in a discharge” into navigable waters to include a license amendment which would result in an increase in the discharge from the project turbines. HRC states that we should modify our regulations accordingly. HRC overlooks however the fact that the Court found that the amendment in that case would result in the release of substantially increased volumes of water with low dissolved oxygen levels. 33 We do not interpret the Court's ruling to hold that any increase in a project's discharge, however insignificant and innocuous, requires a new application for water quality certification. The Court moreover noted that the Commission's orders in the case did not address the applicability of the material adverse impact regulation to the licensee's amendment application, 34 and stated that its decision was based solely on its interpretation of the discharge requirement of section 401(a)(1). 35

29. In the NOPR we proposed to reverse our policy that agencies which have been cooperating agencies for purposes of preparing a NEPA document may not thereafter intervene in a proceeding. In the final rule we concluded that the proposed policy change would violate the prohibitions of the APA and case law against ex parte communications. 36

30. HRC concedes that our analysis in the final rule was correct, but asserts that our rules should include affirmative procedures for coordinating preparation of the Commission's NEPA document with the regulatory processes of other agencies in the absence of a cooperating agency agreement.

31. We conclude that additional regulations are not needed. The integrated process rules provide ample opportunity for such coordination. In fact, the regulations are premised on the active participation of all entities interested in a license application from the time the NOI and PAD are filed. In particular, the integrated process provides for the development with the participation of other agencies a process plan and schedule and a Commission-approved study plan designed to maximize the likelihood that it will produce all the information needed by all agencies with conditioning authority for the proposed project. 37

32. Some entities have requested clarification of the filing deadline for license applicants to file a request for water quality certification pursuant to CWA section 401. In the integrated, traditional, and alternative processes, effective for applications filed on or after October 23, 2003, the water quality certification application must be filed no later than 60 days following issuance by the Commission of the notice requesting terms and conditions. In the integrated and traditional processes that will also be the notice that the application is ready for environmental analysis. 38 Under the alternative procedures there may not be a specific notice that the application is ready for environmental analysis, but the notice requesting terms and conditions serves the same function. 39

33. The Office of Management and Budget's (OMB) regulations require that OMB approve certain information collection requirements imposed by agency rule. 40 OMB approved the final rule issued in Order No. 2002 on October 28, 2003. No changes have been made to the information collection requirements in this order on rehearing.

34. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 41 Included in the exclusions are rules that are clarifying, corrective, or procedural or that do not substantively change the effect of the regulations being amended. This rule is clarifying and procedural in nature and therefore falls under the exceptions. Consequently, no environmental consideration is necessary.

35. The Regulatory Flexibility Act of 1980 (RFA)  42 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The Commission is not required to make such an analysis if a rule would not have such an effect. The Commission certifies that this rule does not have such an impact on small entities.

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

37. From FERC's home page on the Internet, this information is available in eLibrary. The full text of this document is available in eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

38. User assistance is available for eLibrary and the FERC's website during normal business hours from our Help line at (202) 502-8222 or the Public Reference Room at (202) 502-8371 Press 0, TTY (202) 502-8659. E-Mail the Public Reference Room at public.referenceroom@ferc.gov.

39. This order makes no changes to the final rule, which became effective on October 23, 2003. Because no changes were made, the provisions of 5 U.S.C. 801 regarding Congressional review of final rules do not apply to this order.

In the FR Doc. 04-1733, appearing on page 3824 in the Federal Register of Tuesday, January 27, 2004, the following corrections are made:

1. On page 3824, in the DATES section, by removing the sentence “The compliance date is March 29, 2004.”

2. On page 3824, under SUPPLEMENTARY INFORMATION in the I. Background section, the phrase “FDA understands that many establishments may have reasonably expected FDA to delay the effective date of this provision again, since the donor suitability and GTP rules are not yet finalized” is revised to read:

“FDA understands that many establishments may have reasonably expected FDA to delay the effective date of this provision again, since the donor suitability and GTP rules are not yet finalized. Accordingly, FDA expects that affected firms will be in compliance with these requirements by March 29, 2004, and not on January 21, 2004, the effective date of the definition regulation.”

The final and temporary regulations (TD 9105) that is the subject of this correction is under section 446(e) of the Internal Revenue Code.

As published, the final and temporary regulations (TD 9105) contain errors that may prove to be misleading and are in need of clarification.

The Parole Commission's hearing examiners travel to more than 60 locations of Federal correctional facilities to conduct parole release and revocation hearings. As the number of parole-eligible prisoners drops in the Federal prison system, the Commission is expending considerable resources in conducting hearings for a small number of prisoners at facilities that are difficult to reach. Therefore, the Commission is looking for ways to reduce travel costs and conserve the time of its hearing examiners. Conducting some parole release hearings through video conferences may be one procedure that will enhance the Commission's ability to make the most efficient use of limited financial and staff resources without detracting from the prisoner's opportunity for a fair parole hearing. Video conference technology has improved considerably since the Commission last considered holding hearings by video conference, and the Commission expects that the prisoner's ability to effectively participate in the hearing will not be diminished by the use of this procedure.

The Commission is undertaking a pilot project with the Federal Bureau of Prisons to conduct some parole release hearings through a video conference between a hearing examiner at the Commission's office in Chevy Chase, Maryland and the prisoner incarcerated in a Bureau facility. During 2004 the Commission intends to use 12 institutions for the project and expects that the number of hearings conducted under the project will not exceed 180 hearings, less than 10% of the parole release hearing caseload. The pilot project will only extend to parole release hearings (including rescission hearings) conducted in Bureau facilities. Under the project, the Commission will not use video conferencing for revocation hearings.

The Commission is promulgating an interim rule on this subject to give notice of the pilot project and the variance from the agency's traditional hearing practice, and is providing an extended opportunity for the public to comment on the use of video conferencing for parole hearings. The interim rule is added at 28 CFR 2.25. For most cases under the Commission's jurisdiction, the Commission could proceed with the project without raising any question concerning compliance with the agency's current rules. But the present rule at 28 CFR 2.72(a), which states that the prisoner appear “in person” before a Commission hearing examiner, could be interpreted to require the physical presence of the prisoner before the hearing examiner in order to conduct an initial hearing for a D.C. Code offender. Therefore, the Commission is amending this rule to eliminate the provision for an “in person” appearance. A corresponding change is made to the rule at 2.75(d). The Commission is also amending a list of rules for U.S. Code offenders that are implemented for D.C. Code offenders to include the interim rule at § 2.25.

The amended rule will take effect March 5, 2004, and will apply to parole determination hearings for Federal and District of Columbia offenders.

The U.S. Parole Commission has determined that this interim rule does not constitute a significant rule within the meaning of Executive Order 12866.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rule does not have sufficient federalism implications requiring a Federalism Assessment.

The interim rule will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 605 (b), and is deemed by the Commission to be a rule of agency practice that does not substantially affect the rights or obligations of non-agency parties pursuant to section 804 (3) (c) of the Congressional Review Act.

This rule will not cause State, local, or tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. No action under the Unfunded Mandates Reform Act of 1995 is necessary.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on the ability of United States-based companies to compete with foreign-based companies.

On August 1, 2003, we published a notice of proposed rulemaking (NPRM) entitled Special Anchorage Area; Okeechobee Waterway, St. Lucie River, Stuart, FL in the Federal Register (68 FR 45190). We did not receive any letters commenting on the proposed rule. No public hearing was requested, and none was held.

The City of Stuart has asked the Coast Guard to extend the current Special Anchorage Area that begins on the Okeechobee Intracoastal Waterway between mile markers 7 and 8 on the St. Lucie River. The City would like to extend the anchorage area by adding 9.73 acres and installing 17 additional moorings. This rule is intended to reduce the risk of vessel collisions by enlarging the current anchorage area and to provide notice to mariners of the additional 9.73 acres. This rule allows vessels not more than 65 feet in length to anchor without exhibiting anchor lights as required by the navigation rules at 33 CFR 109.10. The City of Stuart has coordinated with the Florida Department of Environmental Protection (DEP) regarding this proposal. The DEP determined that properly managed mooring and anchorage fields located in appropriate areas will encourage vessels to utilize them for safety purposes, and, as a side benefit, the ecosystem will incur less detrimental impact.

The latitude and longitude positions defining the Special Anchorage Area were correct in the Notice of Proposed Rule Making (NPRM), but were not in the proper order and have since been corrected.

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.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will have a significant economic effect upon a substantial number of small entities. The term “small entities” comprises small business, 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 (Public Law 104-121), we offered to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. Small entities may contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking.

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

This rule calls for no new collection of information requirements under the Paperwork Reduction Act (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 this rule does not have implications for federalism.

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

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

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

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

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

We have analyzed this rule under Executive Order 13211, actions concerning regulations that significantly affect energy supply, distribution, or use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

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

The Port of Corpus Christi Authority has requested a temporary deviation in order to remove and replace the haul ropes of the Tule Lake vertical lift span bridge across Corpus Christi—Port Aransas Channel, mile 14.0 at Corpus Christi, Nueces County, Texas. The replacement of the haul ropes will bring the bridge into compliance with the American Society of Mechanical Engineers guidelines. This temporary deviation will allow the bridge to remain in the closed-to-navigation position continuously for 48 hours from 7 a.m. on Friday, February 27, 2004, through 7 a.m. on Sunday, February 29, 2004.

The vertical lift span bridge has a vertical clearance of 9.0 feet above mean high water, elevation −1.0 feet Mean Sea Level and 11.0 feet above mean low water, elevation −1.0 Mean Sea Level in the closed-to-navigation position. Navigation at the site of the bridge consists mainly of oil tankers and tows with barges. There is no recreational pleasure craft usage at the bridge site. Due to prior experience, as well as coordination with water way users, it has been determined that this two-day closure will not have a significant effect on these vessels. The bridge normally opens to pass navigation an average of 850 times per month. The bridge opens on signal as required by 33 CFR 117.5. The bridge will not be able to open for emergencies during the closure period. Alternate routes are not available.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Public comment is not necessary since the purpose of the affected regulation is to control the opening and closing of a bridge that has been removed.

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

The State of Mississippi (Department of Transportation) has constructed a bridge of modern safe design to replace the existing bascule span bridge. The bascule span bridge that had previously serviced the area has been removed. The regulation governing the operation of the swing bridge is found in 33 CFR 117.682. The purpose of this rule is to remove 33 CFR 117.682 from the Code of Federal Regulations.

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).

This rule removes a regulation that is obsolete because the bridge it governs no longer exists.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will have no impact on any small entities because the regulation being removed applies to a bridge that no longer exists.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process.

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 affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation. Paragraph (32)(e) excludes the promulgation of operating regulations or procedures for drawbridges from the environmental documentation requirements of NEPA.

On September 15, 2003 we published a notice of proposed rulemaking (NPRM) entitled “Security Zone; Salem and Hope Generating Stations, Delaware River, Salem, NJ” (68 FR 53935). We received two letters commenting on this proposed rule. Both letters requested a public hearing. After considering the comments, the COTP Philadelphia decided to not hold a public hearing.

In addition the following temporary final rule was published in the Federal Register:

“Security Zone; Salem and Hope Generating Stations, Delaware River, Salem, NJ” (68 FR 32996, June 3, 2003). This temporary final rule established a security zone around the Salem and Hope Generating Stations, Delaware River, Salem, NJ. The original effective period of the temporary final rule was to expire at 5 p.m. (EST) on January 24, 2004. The effective period has been extended through March 4, 2004.

Terrorist attacks on September 11, 2001, inflicted catastrophic human casualties and property damage. These attacks highlighted the terrorists' ability and desire to utilize multiple means in different geographic areas to increase their opportunities to successfully carry out their mission, thereby maximizing destruction using multiple terrorist acts.

Since the September 11, 2001 terrorist attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia and Flight 93, the Federal Bureau of Investigation (FBI) has issued several warnings concerning the potential for additional terrorist attacks within the United States. The threat of maritime attacks is real as evidenced by the October 2002 attack on a tank vessel off the coast of Yemen and the prior attack on the USS COLE. These attacks manifest a continuing threat to U.S. assets as described in the President's finding in Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 2002) that the security of the U.S. is endangered by the September, 11, 2001 attacks and that such disturbances continue to endanger the international relations of the United States. See also Continuation of the National Emergency with Respect to Certain Terrorist Attacks, (67 FR 58317, September 13, 2002); Continuation of the National Emergency With Respect To Persons Who Commit, Threaten To Commit, Or Support Terrorism, (67 FR 59447, September 20, 2002). The U.S. Maritime Administration (MARAD) in Advisory 02-07 advised U.S. shipping interests to maintain a heightened state of alert against possible terrorist attacks. MARAD more recently issued Advisory 03-01 informing operators of maritime interests of increased threat possibilities to vessels and facilities and a higher risk of terrorist attack to the transportation community in the United States. The ongoing hostilities in Afghanistan and Iraq have made it prudent for U.S. ports and waterways to be on a higher state of alert because the al Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.

Due to increased awareness that future terrorist attacks are possible, the Coast Guard as lead federal agency for maritime homeland security, has determined that the Captain of the Port must have the means to be aware of, deter, detect, intercept, and respond to asymmetric threats, acts of aggression, and attacks by terrorists on the American homeland while still maintaining our freedoms and sustaining the flow of commerce. A security zone is a tool available to the Coast Guard that may be used to limit vessel traffic in a specific area to help protect vessels from damage, injury, or terrorist attack.

The Captain of the Port of Philadelphia has determined that this security zone is necessary to protect the public, ports, and waterways of the United States from potential subversive acts.

During the public comment period we received two letters. Both letters expressed concern that the security zones would exclude kayayers from access to paddle in specific areas on the Susquehanna River. Each respondent also requested a public hearing to discuss the proposed rule.

The Captain of the Port of Philadelphia has carefully weighed security concerns versus public access concerns in the decision to establish this security zone. The permanent zone will provide a clear area in which to detect persons or vessels while providing for traditional use outside of the security zone. This final rule remains unchanged from the proposed rule. A public meeting was considered, however given the number of requests and the need for increased security around the nuclear facility, no public hearing was held.

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). No changes have been made to the rule.

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. There is ample room for vessels to navigate around the security zone and the Captain of the Port may allow vessels to enter the zone, on a case-by-case basis with the express permission of the Captain of the Port of Philadelphia or their designated representative.

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 zone is limited in size and leaves ample room for vessels to navigate around the zone. The zone will not significantly impact commuter and passenger vessel traffic patterns; the vessels may be allowed to enter the zone on a case-by-case basis, with the express permission of the Captain of the Port of Philadelphia or their designated representative.

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, as none were identified that will be affected by the final rule.

Vessel traffic counts indicate the waterway users will continue to have the same access to the waterway as in the past, with the exception of a remote small area surrounding the waterfront near the Salem and Hope Generating Stations.

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

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

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

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

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the order.

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

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, from further environmental documentation.

We have considered waterside access constraints around the security zone and have determined the public can safely transit the affected waterways around the security zone, without significant impact on the environment.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B) and (d)(3), the Coast Guard finds that good cause exists for not publishing an NPRM and for making this regulation effective less than 30 days after publication in the Federal Register . Based upon the warnings from national security and intelligence personnel, this rule is urgently required to protect the plant from subversive activity, sabotage or possible terrorist attacks initiated from the waters surrounding the plants.

It took longer to resolve issues related to the final rule that will create a permanent security zone in this area than originally expected at the time the last temporary final rule was issued. That final rule, entitled “Security Zone; Salem and Hope Generating Stations, Delaware River, Salem, NJ”, appears elsewhere in today's Federal Register .

This new temporary final rule is necessary because it would be contrary to public interest not to maintain a temporary safety and security zone until the final rule becomes effective on March 5, 2004.

The need for this temporary security zone still exists. Due to the continued warnings from national security and intelligence officials that future terrorist attacks are possible, such as those launched against New York and Washington DC on September 11, 2001, heightened security measures are necessary for the area surrounding the Salem and Hope Creek Generation Stations. This temporary rule will provide the Captain of the Port Philadelphia with enforcement options to deal with potential threats to the security of the plants until a permanent security zone becomes effective on March 5, 2004.

This temporary rule will extend the effective period of the security zone from 5 p.m. (EST) on January 24, 2004, through March 4, 2004. No person or vessel may enter or remain in the prescribed security zone at any time without the permission of the Captain of the Port, Philadelphia, PA or designated representative. Federal, state, and local agencies may assist the Coast Guard in the enforcement of this 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 Homeland Security (DHS).

The primary impact of this rule will be on vessels wishing to transit the affected waterway. Although this rule restricts traffic from freely transiting portions of the Delaware River, that restriction affects only a limited area and will be well publicized to allow mariners to make alternative plans.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule may affect the following entities, some of which may be small entities: owners or operators of fishing vessels and recreational vessels wishing to transit the portions of the Delaware River.

The rule will not have a significant impact on a substantial number of small entities for the following reasons: the restrictions affect only a limited area and traffic will be allowed to transit through the zone with permission of the Coast Guard or designated representative. The opportunity to engage in recreational and charter fishing outside the geographical limits of the security zone will not be disrupted. Therefore, this regulation should have a negligible impact on recreational and charter fishing activity.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, from further environmental documentation.

A final “Environmental Analysis Checklist” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES.

On September 15, 2003 we published a notice of proposed rulemaking (NPRM) entitled “Security Zone; Oyster Creek Generation Station, Forked River, Ocean County, NJ” (68 FR 53930). We received two letters commenting on this proposed rule. Both letters requested a public hearing. After considering the comments, the COTP Philadelphia decided not to hold a public hearing.

In addition the following temporary final rule was published in the Federal Register: “Security Zone; Oyster Creek Generation Station, Forked River, Ocean County, NJ” (68 FR 32643, June 2, 2003). That temporary final rule established a security zone around the Oyster Creek Generating Station, Forked River, Ocean County, NJ. The original effective date of the temporary final rule was to expire at 5 p.m. (EST) on January 24, 2004. The effective date has been extended through March 4, 2004.

Terrorist attacks on September 11, 2001, inflicted catastrophic human casualties and property damage. These attacks highlighted the terrorists' ability and desire to utilize multiple means in different geographic areas to increase their opportunities to successfully carry out their mission, thereby maximizing destruction using multiple terrorist acts.

Since the September 11, 2001 terrorist attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia and Flight 93, the Federal Bureau of Investigation (FBI) has issued several warnings concerning the potential for additional terrorist attacks within the United States. The threat of maritime attacks is real as evidenced by the October 2002 attack on a tank vessel off the coast of Yemen and the prior attack on the USS COLE. These attacks manifest a continuing threat to U.S. assets as described in the President's finding in Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 2002) that the security of the U.S. is endangered by the September 11, 2001 attacks and that such disturbances continue to endanger the international relations of the United States. See also Continuation of the National Emergency with Respect to Certain Terrorist Attacks, (67 FR 58317, September 13, 2002); Continuation of the National Emergency With Respect To Persons Who Commit, Threaten To Commit, Or Support Terrorism, (67 FR 59447, September 20, 2002). The U.S. Maritime Administration (MARAD) in Advisory 02-07 advised U.S. shipping interests to maintain a heightened state of alert against possible terrorist attacks. MARAD more recently issued Advisory 03-01 informing operators of maritime interests of increased threat possibilities to vessels and facilities and a higher risk of terrorist attack to the transportation community in the United States. The ongoing hostilities in Afghanistan and Iraq have made it prudent for U.S. ports and waterways to be on a higher state of alert because the al Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.

Due to increased awareness that future terrorist attacks are possible, the Coast Guard as lead federal agency for maritime homeland security, has determined that the Captain of the Port must have the means to be aware of, deter, detect, intercept, and respond to asymmetric threats, acts of aggression, and attacks by terrorists on the American homeland while still maintaining our freedoms and sustaining the flow of commerce. A security zone is a tool available to the Coast Guard that may be used to limit vessel traffic in a specific area to help protect vessels from damage, injury, or terrorist attack.

The Captain of the Port of Philadelphia has determined that a security zone is necessary to protect the public, ports, and waterways of the United States from potential subversive acts.

During the public comment period we received two letters. Both letters expressed concern that the security zone would exclude kayakers from access to paddle in specific areas on the Susquehanna River. Each respondent also requested a public hearing to discuss the proposed rule.

The Captain of the Port of Philadelphia has carefully weighed security concerns versus public access concerns in the decision to establish this security zone. The temporary and permanent security zone size and access to the areas were carefully considered and balanced against the increased need for safety and security outside the nuclear facility. The permanent zone will provide a clear area in which to detect persons or vessels while providing for traditional use outside of the security zone. This final rule remains unchanged from the proposed rules. A public hearing was considered, however given the number of requests and the need for increased security around the nuclear facility, no public hearing was held.

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). No changes have been made to the rule.

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. There is ample room for vessels to navigate around the security zone and the Captain of the Port may allow vessels to enter the zone on a case-by-case basis with the express permission of the Captain of the Port of Philadelphia or their designated representative.

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 zone is limited in size and leaves ample room for vessels to navigate around the zone. The zone will not significantly impact commuter and passenger vessel traffic patterns; the vessels may be allowed to enter the zone on a case-by-case basis, with the express permission of the Captain of the Port of Philadelphia or their designated representative.

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, as none were identified that will be affected by the final rule.

Vessel traffic counts indicate the waterway users will continue to have the same access to the waterway as in the past, with the exception of a remote small area surrounding the waterfront near the Oyster Creek Generation Station.

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

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

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

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

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the order.

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

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, from further environmental documentation.

We have considered waterside access constraints around the security zone and have determined the public can safely transit the affected waterways outside the security zone, without significant impact on the environment.

Regulatory Information

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B) and (d)(3), the Coast Guard finds that good cause exists for not publishing a NPRM and for making this regulation effective less than 30 days after publication in the Federal Register . Based upon the warnings from national security and intelligence personnel, this rule is urgently required to protect the plant from subversive activity, sabotage or possible terrorist attacks initiated from the waters surrounding the plants.

It took longer to resolve issues related to the final rule, which appears elsewhere in today's Federal Register , that will create a permanent security zone in this area than we originally expected at the time the last temporary final rule was issued. This new temporary final rule is necessary because it would be contrary to public interest not to maintain a temporary safety and security zone until the final rule becomes effective March 5, 2004.

This security zone should have minimal impact on vessel transits because the security zone does not block the channel.

Due to the continued warnings from national security and intelligence officials that future terrorist attacks are possible, such as those launched against New York and Washington, DC on September 11, 2001, heightened security measures are necessary for the area surrounding the Oyster Creek Generation Station. This rule will provide the Captain of the Port Philadelphia with enforcement options to deal with potnetial threats to the security of the plants.

Currently, the need for this security zone still exists. This temporary rule will continue the effective period of the security zone through March 4, 2004 during the 30-day delayed effective period of a final rule published elsewhere in this issue of the Federal Register . That final rule, entitled “Security Zone; Oyster Creek Generation Station, Forked River, Ocean County, NJ”, will become effective March 5, 2004 and will implement a permanent security zone surrounding the plant.

No person or vessel may enter or remain in the prescribed security zone at any time without the permission of the Captain of the Port, Philadelphia, Pennsylvania or designated representative. Federal, state, and local agencies may assist the Coast Guard in the enforcement of this 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 Homeland Security (DHS).

The primary impact of this rule will be on vessels wishing to transit the affected waterway. Although this rule restricts traffic from freely transiting portions of Oyster Creek and Forked River, that restriction affects only a limited area and will be well publicized to allow mariners to make alternative plans.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule may affect the following entities, some of which may be small entities: Owners or operators of fishing vessels and recreational vessels wishing to transit the portions of Oyster Creek and Forked River.

The rule will not have a significant impact on a substantial number of small entities for the following reasons: The restrictions affect only a limited area and traffic will be allowed to transit through the zone with permission of the Coast Guard or designated representative. The opportunity to engage in recreational and charter fishing outside the geographical limits of the security zone will not be disrupted. Therefore, this regulation should have a negligible impact on recreational and charter fishing activity.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34) (g), of Commandant Instruction M16475.lD, from further environmental documentation.

A final “Environmental Analysis Checklist” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES.

The following table of contents describes the format for the SUPPLEMENTARY INFORMATION section:

On June 17, 2003, the Connecticut Department of Environmental Protection (CTDEP) submitted an amendment to the Connecticut State Implementation Plan (SIP) containing 2005 and 2007 motor vehicle emissions budgets recalculated using the MOBILE6.2 model for the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area and 2007 motor vehicle emissions budgets for the Greater Connecticut nonattainment area. This SIP revision fulfills the commitment made by the CTDEP in its February 8, 2000 SIP submittal to revise the transportation conformity budgets using EPA's MOBILE6 emissions model. 1 In addition, this SIP revision demonstrates that the new levels of motor vehicle emissions calculated using MOBILE6.2 continue to support achievement of the rate of progress requirements and projected attainment of the one-hour ozone NAAQS for the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area and the Greater Connecticut nonattainment area. Connecticut held a public hearing on its proposed SIP revision on May 27, 2003. Today's action approves these budgets.

The specific 2005 and 2007 motor vehicle emission budgets that EPA is approving in today's rulemaking are identified below in Table 1. The rationale for EPA's action are explained in the notice of direct final rulemaking (68 FR 70484) published in the Federal Register on December 18, 2003, and will not be restated here.

On December 18, 2003, the EPA announced in proposed and direct final rules published in the Federal Register (68 FR 70437 and 68 FR 70484, respectively) approval of Connecticut's SIP revision for its 2005 and 2007 motor vehicle emissions budgets using MOBILE6.2 for the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area and 2007 budgets for the Greater Connecticut nonattainment area, which are the subject of today's final rulemaking.

On December 20, 2003, EPA received an electronic comment on the direct final rule. EPA had indicated in its December 18, 2003 direct final rule that if EPA received adverse comments, it would withdraw the direct final rule. Consequently, elsewhere in today's Federal Register, EPA is publishing a separate withdrawal document to inform the public that EPA received an adverse comment and that the direct final rule will not take effect. EPA did not receive any other comments. EPA is addressing the adverse comment in today's final rule based upon the proposed action published on December 18, 2003.

The sole comment EPA received on our action is as follows:

[T]hese emissions pollute the air for New Jersey as well, so standards must be set exceptionally high. NJ already has air pollution of immense degradation. We must set higher standards so that our air is cleaned. Standards should be set higher than those proposed. People in this area are being injured and killed by the air pollution we presently have.”

The State of Connecticut previously established the appropriate levels of volatile organic compounds (VOCs) and nitrogen oxides (NO X ) emission necessary from stationary sources, area sources and mobile sources (mobile sources includes emissions from on-road/highway motor vehicles) to attain the one-hour National Ambient Air Quality Standard for Ozone. These levels were documented and supported in detail in Connecticut's Ozone Attainment Demonstrations which EPA approved on January 3, 2001 (Greater Connecticut serious ozone nonattainment area, 66 FR 634) and December 11, 2001 (Connecticut portion of the New York-Northern New Jersey-Long Island severe ozone nonattainment area, 66 FR 63921). EPA's current action to approve Connecticut's revised 2005 and 2007 motor vehicle emission budgets was limited to approval of a change in the modeling of these previously established motor vehicle emission budgets, and EPA concluded that even with the new MOBILE6 emission levels, the two areas would still attain in a timely fashion. Issues related to the appropriate level of the National Ambient Air Quality Standards (NAAQSs) to protect human health and the environment, or to the emission levels selected by Connecticut to attain the one-hour ozone NAAQS are beyond the scope of this rulemaking.

EPA is approving Connecticut's revision submitted on June 17, 2003 containing 2005 and 2007 motor vehicle emissions budgets using MOBILE6.2 for the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area and 2007 budgets for the Greater Connecticut nonattainment area.

Table 1 contains Connecticut's revised budgets that EPA is approving today. These budgets were developed using the latest planning assumptions, including 2000 vehicle registration data, VMT, speeds, fleet mix, and SIP control measures. For the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area, EPA is approving budgets for 2005 and 2007, and for the Greater Connecticut nonattainment area EPA is approving budgets for 2007.

EPA has determined that today's rule falls under the “good cause” exemption in section 553(d)(3) of the Administrative Procedures Act (APA) which, upon finding “good cause,” allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). EPA has concluded that it is not necessary to delay the effectiveness of this rule for 30 days because the entities that will be directly affected by these new budgets have had ample notice of our action and wish to use the new budgets as soon as possible. The state and Federal Departments of Transportation (DOTs) use these budgets to determine whether their transportation improvement programs conform with the planning assumptions in the state's implementation plan. The DOTs will be most immediately affected by EPA's approval of these new budgets and their transportation planning obligations are directly impacted by changes in these budgets. EPA and the Connecticut DEP have been consulting extensively with the DOTs about these budget changes. The DOTs are not only ready to use these new budgets without waiting 30 days, they are eager to use them as soon as possible to avoid delays in the transportation planning process. Therefore, since the entities that are most directly impacted by this approval are ready to use the new budgets and prefer to use them immediately, EPA is making this rule effective immediately. This rule will be effective February 4, 2004.

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), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 5, 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).)

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

• Crop production (NAICS 111)

• Animal production (NAICS 112)

• Food manufacturing (NAICS 311)

• Pesticide manufacturing (NAICS 32532)

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Docket . EPA has established an official public docket for this action under docket identification (ID) number OPP-2003-0370. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

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

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

EPA, on its own initiative, in accordance with sections 408(e) and 408 (l)(6) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, is establishing a tolerance for combined residues of the insecticide bifenazate (1-methylethyl 2-(4-methoxy[1,1'-biphenyl]-3-yl)hydrazinecarboxylate) and diazinecarboxylic acid, 2-(4-methoxy-[1,1'-biphenyl]-3-yl), 1-methylethyl ester (expressed as bifenazate) in or on potatoes at 0.05 parts per million (ppm). This tolerance will expire and is revoked on December 31, 2006. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations.

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

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. * * *”

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

EPA has received objections to a tolerance it established for bifenazate on a different food commodity. The objections were filed by the Natural Resources Defense Council (NRDC) and raised several issues regarding aggregate exposure estimates and the additional safety factor for the protection of infants and children. Although these objections concern separate rulemaking proceedings under the FFDCA, EPA has considered whether it is appropriate to establish this emergency exemption tolerance for bifenazate while the objections are still pending.

Factors taken into account by EPA included how close the Agency is to concluding the proceedings on the objections, the nature of the current action, whether NRDC's objections raised frivolous issues, and extent to which the issues raised by NRDC had already been considered by EPA. Although NRDC's objections are not frivolous, the other factors all support establishing this tolerance at this time. First, the objections proceeding is unlikely to conclude prior to when action is necessary on this petition. NRDC's objections raise complex legal, scientific, policy, and factual matters. EPA has published a notice describing the nature of the NRDC's objections in more detail. This notice offered an opportunity for the public to comment on this matter and published in the Federal Register of June 19, 2002 (67 FR 41628) (FRL-7167-7). EPA is now examining the extensive comments received. Second, the nature of the current action is extremely time-sensitive and addresses an emergency situation. Third, the issues raised by NRDC are not new matters but questions that have been the subject of considerable study by EPA and comment by stakeholders. Accordingly, EPA is proceeding with establishing the tolerance for bifenazate.

The states of Oregon and Washington requested the emergency use of bifenazate on potatoes to control an outbreak of spider mites. The use of bifenazate on potatoes in these states took place under a section 18 crisis declaration. The states invoked the crisis authorities because of damage that spider mites cause to the crop.

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

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

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

Consistent with section 408(b)(2)(D) of the FFDCA , EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of bifenazate and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for a time-limited tolerance for combined residues of bifenazate in or on potatoes at 0.05 ppm. EPA's assessment of the dietary exposures and risks associated with establishing the tolerance follows.

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

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). The FQPA requires, in certain circumstances, an additional safety factor for the protection of infants and children. Where this FQPA safety factor applies, EPA calculates an acute or chronic Population Adjusted Dose (aPAD or cPAD) by dividing the RfD by the FQPA safety factor.

For non-dietary risk assessments (other than cancer) the UF is used to determine the level of concern (LOC). For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. The non-dietary risk (other than cancer) is expressed as the margin of exposure (MOE), a ratio of the NOAEL to estimated exposures (margin of exposure (MOE) = NOAEL/exposure). An MOE higher than the applicable LOC would indicate that the risk is not of concern.

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

1. Dietary exposure from food and feed uses. Tolerances have been established (40 CFR 180.572) for the combined residues of bifenazate, (hydrazinecarboxylic acid, 2-(4-methoxy-1,1'-biphenyl]-3-yl), 1-methylethyl ester) and D3598 expressed as bifenazate (diazinecarboxylic acid, 2-(4-methoxy-1,1'-biphenyl]-3-yl), 1-methylethylester)], in or on apple, wet pomace; cattle, fat; cotton, gin byproducts; cotton, undelinted seed; fruit, pome, group 11; goat, fat; grape; grape, raisin; hog, fat; hog, dried cone; horse, fat; nectarine; peach; plum; sheep, fat, and strawberry, and bifenazate (hydrazinecarboxylic acid, 2-(4-methoxy-1,1'-biphenyl]-3-yl), 1-methylethyl ester) and D3598 expressed as bifenazate (diazinecarboxylic acid, 2-(4-methoxy-[1,1'-biphenyl]-3-yl), 1-methylethylester), A1530 (1,1'-biphenyl, 4-ol) and A1530-sulfate expressed as A1530 (1,1'-biphenyl, 4-oxysulfonic acid) in or on cattle, meat; cattle, meat byproducts; goat, meat; goat, meat byproducts; hog, meat; hog, meat byproducts; horse, meat; horse, meat byproducts; milk; sheep, meat; and sheep, meat byproducts.

Risk assessments were conducted by EPA to assess dietary exposures from bifenazate in food as follows:

i. Acute exposure . An acute dietary reference dose (RfD) for the females 13-50 years of age and the general population, including infants and children, was not selected because an acute oral endpoint attributed to a single-dose exposure could not be identified in any of the studies in the toxicology data base, including developmental and maternal toxicity in the developmental toxicity studies.

ii. Chronic exposure . In conducting this acute dietary risk assessment EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM/FCID TM ) which incorporates food consumption data as reported by respondents in the USDA 1994-1996 and 1998 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessment: The chronic dietary exposure analysis assumed tolerance level residues and 100% crop treated for all registered and proposed crops excluding tomato where average field trial residues were used. DEEM (ver 7.73) default processing factors were assumed for all commodities excluding apple juice, grape juice, wine/sherry, tomato paste, and tomato puree. The processing factors for these commodities were reduced to 0.23, 0.17, 0.17, 5.0, and 5.0, respectively, based on data from processing studies.

iii. Cancer . EPA has classified bifenazate as “not likely” to be a human carcinogen. Therefore, a cancer dietary exposure and risk assessment was not performed.

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

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

None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for estimating the highest pesticide drinking water concentrations that might ever be encountered.

Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %RfD or %PAD. Instead, EPA determines the maximum permissible exposures (acute, short-term, intermediate-term and chronic) to the pesticide in drinking water, taking into account the expected exposure through food and residential uses. These maximum permissible level of exposure through drinking water are called drinking water levels of comparison (DWLOCs) and used as a point of comparison against the model estimates of a pesticide's concentration in water. So long as the estimated EECs from these screening models (which are designed to estimate theoretical upper limits on a pesticide's concentration in drinking water) do not exceed the applicable DWLOCs, EPA concludes that exposure to the pesticide in drinking water does not pose a risk of concern in light of total aggregate exposure to a pesticide in food, and from residential uses. Because DWLOCs address total aggregate exposure to bifenazate they are further discussed in the aggregate risk sections below.

Parent bifenazate degrades rapidly in aerobic soil conditions with a half-life of approximately 30 minutes. The first degradate formed (D3598; half-life of 7 hours) was reported in a concentration of 95% of the applied radioactivity . D3598 degrades to D1989 (reported at a maximum of 26% of the applied radioactivity), which is moderately persistent with an EPA- calculated half-life of approximately 96 days. Photodegradation and other routes of dissipation of parent bifenazate do not appear to be significant.

The Agency concluded that the residue of concern in drinking water is D1989. Parent and D3598 were not included as a residue of concern in drinking water due to the short half-lives of these compounds and the lack of an acute dietary endpoint (toxicity of D3598 is assumed to be equivalent to bifenazate). Since ground or surface water monitoring data to calculate a quantitative aggregate exposure are not available, EPA provided Tier I ground (SCI-GROW) and surface water (FIRST) EECs for D1989. Both EEC calculations with both models were based on the strawberry application scenario (one application at 0.75 lbs ai/acre;) because this is the highest registered/proposed application rate). The resulting ground and chronic surface water EECs are < 0.001 ppb and 6.4 ppb, respectively.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Bifenazate is currently registered for use on the following residential non-dietary sites: Commercial application to ornamental plants (including bedding plants, flowering plants, foliage plants, bulb crops, perennials, trees and shrubs; not turf) and all fruit trees which will not bear fruit for a minimum of 12 months. The proposed label is amended to permit application by residents/homeowners. The risk assessment was conducted using the following residential exposure assumptions: EPA anticipates only short-term dermal and short-term inhalation exposure from the requested residential use. The proposed formulation is appropriate for application via pump up sprayers, garden hose-end sprayers or similar “homeowner” pesticide devices. The Agency believes that persons using a hose-end sprayer are likely to treat a larger area per day than those using a “pump up” compressed air sprayer, which in turn results in possibly greater contact with the pesticide active ingredient per day for applicators using hose-end sprayers. In order to avoid underestimating residential risk, exposure from a hose-end sprayer is assessed rather than that of a compressed air sprayer. For the treatment of shrubs and ornamentals, EPA assumed 100 gallons of finish spray are applied per day. The unit exposure value for a residential handler using open pour mixing/loading for a garden hose-end sprayer is 11 mg/lb handled (dermal) and 0.013 mg/lb handled. Exposures were calculated using the Agency's draft Residential Standard Operating Procedures.

4. Cumulative exposure to substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA does not have, at this time, available data to determine whether bifenazate has a common mechanism of toxicity with other substances. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to [bifenazate] and any other substances and bifenazate does not appear to produce a toxic metabolite produced by other substances.For the purposes of this tolerance action, therefore, EPA has not assumed that bifenazate has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's Web site at http://www.epa.gov/pesticides/cumulative/ .

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

2. Prenatal and postnatal sensitivity . Developmental toxicity and reproductive toxicity studies performed with bifenazate yield no qualitative or quantitative toxicity evidence of increased susceptibility among rats and rabbits during in utero exposure or during postnatal exposure.

The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, dolphin, and, in the Gulf of Mexico only, bluefish) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

Based on the Councils' recommended total allowable catch and the allocation ratios in the FMP, on April 30, 2001 (66 FR 17368, March 30, 2001) NMFS implemented a commercial quota of 2.25 million lb (1.02 million kg) for the eastern zone (Florida) of the Gulf migratory group of king mackerel. That quota is further divided into separate quotas for the Florida east coast subzone and the northern and southern Florida west coast subzones. The quota implemented for the Florida east coast subzone is 1,040,625 lb (472,020 kg) (50 CFR 622.42(c)(1)(i)(A) ( 1 )).

In accordance with 50 CFR 622.44(a)(2)(i), beginning on February 1, if less than 75 percent of the Florida east coast subzone's quota has been harvested by that date, king mackerel in or from that subzone's EEZ may be possessed on board or landed from a permitted commercial vessel in amounts not exceeding 75 fish per day. The 75-fish daily trip limit will continue until a closure of the subzone's fishery has been effected or the fishing year ends on March 31, 2004.

NMFS has determined that 75 percent of the quota for Gulf group king mackerel for vessels using hook-and-line gear in the Florida east coast subzone was not reached before February 1, 2004. Accordingly, a 75-fish trip limit applies to vessels in the commercial hook-and-line fishery for king mackerel in or from the EEZ in the Florida east coast subzone effective 12:01 a.m., local time, February 1, 2004. The 75-fish trip limit will remain in effect until the fishery closes or until the end of the current fishing season (March 31, 2004) for this subzone. From November 1 through March 31, the Florida east coast subzone of the Gulf group king mackerel is that part of the eastern zone north of 25°20.4′ N. lat. (a line directly east from the Miami-Dade County, FL, boundary).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B), as such prior notice and opportunity for public comment is unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule itself already has been subject to notice and comment, and all that remains is to notify the public of the trip limit increase. Allowing prior notice and opportunity for public comment is contrary to the public interest because it requires time, thus delaying fishermen's ability to catch more king mackerel than present trip limits allow and preventing fishermen from reaping the socio-economic benefits derived from this increase in catch.

As this action allows fishermen to increase their harvest of king mackerel from 50 fish per day to 75 fish per day in or from the EEZ of the Florida east coast subzone, the AA finds that it relieves a restriction and may go into effect on its effective date pursuant to 5 U.S.C. 553(d)(1). This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.

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

The interim 2004 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the offshore component in the Central Regulatory Area is 1,213 metric tons (mt) as established by the interim 2004 harvest specifications of groundfish for the GOA (68 FR 67964, December 5, 2003).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the interim 2004 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the offshore component of the Central Regulatory Area of the GOA will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 1,083 mt, and is setting aside the remaining 130 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the offshore component in the Central Regulatory Area of the GOA.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent the Agency from responding to the most recent fisheries data in a timely fashion and would delay the closure of the fishery under the interim 2004 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the offshore component of the Central Regulatory Area of the GOA.

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

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

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

In accordance with § 679.20(a)(8)(iii), vessels using trawl gear for directed fishing for Atka mackerel previously registered with NMFS to fish in the HLA fisheries in areas 542 and/or 543. NMFS randomly assigned each vessel to the directed fishery or fisheries for which they have registered. NMFS notified each vessel owner as to which fishery each vessel has been assigned (69 FR 2849, January 21, 2004).

In accordance with § 679.20(a)(8)(ii)(C)(1) and as established by the Interim 2004 Harvest Specifications for Groundfish (68 FR 68,265, December 8, 2003), the HLA limit of the interim TAC in area 543 is 5,097 metric tons (mt). Based on this limit and the proportion of the number of vessels in each fishery compared to the total number of vessels participating in the HLA directed fishery for area 543, the harvest limit for the first HLA directed fishery in area 543 is 2,549 mt. In accordance with § 679.20(a)(8)(iii)(E), the Regional Administrator is rescinding the February 2, 2004, closure announced previously for this fishery (69 FR 2850, January 21, 2004), and is establishing a revised time and date for the closure of the first directed fishery for Atka Mackerel within the HLA in Statistical Area 543 of the BSAI as 12 noon, A.l.t., January 30, 2004, based on the amount of the harvest limit and the estimated fishing capacity of the vessels assigned to the fisheries.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent the Agency from responding to the most recent fisheries data in a timely fashion, would delay the closure of the fishery under the interim 2004 Atka mackerel HLA limit established for area 543 of the BSAI and would prevent the Agency from ensuring that the 2004 Atka mackerel HLA limit established for area 543 not be exceeded.

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

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

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

The interim 2004 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area is 10,916 metric tons (mt) as established by the interim 2004 harvest specifications of groundfish for the GOA (68 FR 67964, December 5, 2003).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the interim 2004 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component of the Central Regulatory Area of the GOA will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 9,016 mt, and is setting aside the remaining 1,900 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent the Agency from responding to the most recent fisheries data in a timely fashion and would delay the closure of the fishery under the interim 2004 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component of the Central Regulatory Area of the GOA.

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

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