This rule is issued under Marketing Agreement and Order No. 906, as amended (7 CFR part 906), regulating the handling of oranges and grapefruit grown in the Lower Rio Grande Valley in Texas, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

USDA is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, orange and grapefruit handlers in the Lower Rio Grande Valley in Texas are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable oranges and grapefruit beginning August 1, 2003, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule continues to increase the assessment rate established for the Committee for the 2003-04 and subsequent fiscal periods from $0.11 to $0.14 per 7/10-bushel carton or equivalent of oranges and grapefruit handled.

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

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

The Committee met on May 29, 2003, and unanimously recommended 2003-04 expenses of $1,222,506 for management, administration, compliance, a Mexican Fruit Fly program, and advertising and promotion. The Committee recommended that the assessment rate of $0.11 per 7/10-bushel carton continue for the 2003-04 fiscal period. The quantity of assessable citrus was estimated at 10 million 7/10-bushel cartons or equivalents.

The Committee met again on October 8, 2003, and unanimously recommended revised 2003-04 expenditures of $1,322,506 and an assessment rate of $0.14 per 7/10-bushel carton or equivalent of oranges and grapefruit. In comparison, last year's budgeted expenditures were $1,226,022. The assessment rate of $0.14 is $0.03 higher than the rate previously in effect. The Committee recommended the $0.14 assessment rate to cover the increased costs associated with implementing a more comprehensive Mexican Fruit Fly program, and a significant decrease in the assessable production estimate for the 2003-04 marketing season. At this meeting, the estimate of assessable citrus was reduced to 9 million 7/10-bushel cartons or equivalents.

The major expenditures recommended by the Committee for the 2003-04 fiscal period include $800,000 for advertising, $279,000 for the Mexican Fruit Fly program, $119,929 for management and administration of the marketing order program, and $72,777 for compliance. Budgeted expenses for these items in 2002-03 were $810,500, $179,000, $107,845, and $74,777, respectively.

As mentioned earlier, the Committee's fiscal period begins August 1. There are no citrus shipments out of the production area during the months of August, September, and part of October. Some shippers begin shipping during the latter part of October, but shipments are light until late November when heavier shipments begin. On October 31, 2003, the Committee's reserve totaled $16,230. The Committee needed to make significant advertising and promotion expenditures (about $60,000) during November.

The Committee believed that assessment billings at the lower $0.11 per 7/10-bushel carton rate would not be sufficient to cover all of its expenses. Assessing at the higher $0.14 rate sooner would enable the Committee to maintain its reserves at a satisfactory level and ensure that all of its obligations are met.

The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of Texas oranges and grapefruit. Texas orange and grapefruit shipments for the fiscal period are estimated at 9 million 7/10-bushel cartons or equivalents, which should provide $1,260,000 in assessment income. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, will be adequate to cover budgeted expenses. Funds in the reserve (currently $23,000) will be kept within the maximum of one fiscal period's expenses permitted by the order (§ 906.35).

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

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

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 214 producers of oranges and grapefruit in the production area and approximately 16 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.

An updated Texas citrus industry profile shows that 6 of the 16 handlers (38 percent) shipped over 588,235 7/10-bushel carton equivalents of oranges and grapefruit. Using an average f.o.b. price of $8.50 per 7/10-bushel carton, these handlers could be considered large businesses under SBA s definition, and the remaining 10 handlers (62 percent) could be considered small businesses. Of the approximately 214 producers within the production area, few have sufficient acreage to generate sales in excess of $750,000. Thus, the majority of handlers and producers of Texas oranges and grapefruit may be classified as small entities.

This rule continues to increase the assessment rate established for the Committee and collected from handlers for the 2003-04 and subsequent fiscal periods from $0.11 to $0.14 per 7/10-bushel carton or equivalent of oranges and grapefruit.

The Committee met on May 29, 2003, and unanimously recommended 2003-04 expenses of $1,222,506 for management, administrative, compliance, a Mexican Fruit Fly program, and advertising and promotion. The Committee recommended that the assessment rate of $0.11 per 7/10-bushel carton continue for the 2003-04 fiscal period. The quantity of assessable citrus was estimated at 10 million 7/10-bushel cartons or equivalents.

The Committee met again on October 8, 2003, and unanimously recommended revised 2003-04 expenditures of $1,322,506 and an assessment rate of $0.14 per 7/10-bushel carton or equivalent of oranges and grapefruit. In comparison, last year's budgeted expenditures were $1,226,022. The assessment rate of $0.14 is $0.03 higher than the rate previously in effect. The Committee recommended the $0.14 assessment rate to cover the increased costs associated with the Committee's desire to implement a more comprehensive Mexican Fruit Fly program, and a significant decrease in the assessable production estimate for the 2003-04 marketing season. At this meeting, the estimate of assessable citrus was reduced to 9 million 7/10-bushel cartons or equivalents.

The major expenditures recommended by the Committee for the 2003-04 fiscal period include $800,000 for advertising, $279,000 for the Mexican Fruit Fly program, $119,929 for management and administration of the marketing order program, and $72,777 for compliance. Budgeted expenses for these items in 2002-03 were $810,500, $179,000, $107,845, and $74,777, respectively.

The Committee's fiscal period begins August 1. There are no citrus shipments out of the production area during the months of August, September, and part of October. Some shippers begin shipping during the latter part of October, but shipments are light until late November when heavier shipments begin. On October 31, 2003, the Committee's reserve totaled $16,230. The Committee needed to make significant advertising and promotion expenditures (about $60,000) during November.

The Committee believed that assessment billings at the lower $0.11 per 7/10-bushel carton rate would not be sufficient to cover all of its expenses. Assessing at the higher $0.14 rate sooner would enable the Committee to maintain its reserves at a satisfactory level and ensure that all of its obligations are met. Funds in the reserve (currently $23,000) will be kept within the maximum of one fiscal period's expenses permitted by the order (§ 906.35).

The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of Texas oranges and grapefruit. Texas orange and grapefruit shipments for the fiscal period are estimated at 9 million 7/10-bushel cartons or equivalents, which should provide $1,260,000 in assessment income. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, will be adequate to cover budgeted expenses.

In arriving at this budget, the Committee considered information from various sources, including the Committee's Executive Committee. Alternative expenditure levels were discussed based upon the relative need of the Mexican Fruit Fly program to the Texas citrus industry.

The proposed assessment rate of $0.14 per 7/10-bushel carton of assessable oranges and grapefruit was then determined by dividing the total recommended budget by the 9 million 7/10-bushel cartons of oranges and grapefruit estimated for the 2003-04 fiscal period. The $0.14 rate will provide $1,260,00 in assessment income. The additional $62,506 to fund the Committee's estimated expenses will come from the Committee's reserve and interest income.

A review of historical information (October 1999 through May 2003) and preliminary information pertaining to the upcoming fiscal period indicates that the packinghouse door price for the 2003-04 fiscal period could range monthly, from $0.26 to $6.41 per 7/10-bushel carton of Texas oranges and from $1.30 to $7.30 for Texas grapefruit, depending upon the fruit variety, size, and quality. Therefore, the estimated assessment revenue for the 2003-04 fiscal period as a percentage of total grower (packinghouse door) revenue could range between 2.2 and 53.8 percent for oranges and 1.9 to 10.8 percent for grapefruit.

This action continues to increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meetings were widely publicized throughout the Texas orange and grapefruit industry and all interested persons were invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, the May 29 and October 8, 2003, meetings were public meetings and all entities, both large and small, were able to express views on this issue.

This action imposes no additional reporting or recordkeeping requirements on either small or large Texas orange and grapefruit handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

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

An interim final rule concerning this action was published in the Federal Register on November 25, 2003 (68 FR 66001). Copies of that rule were also mailed or sent via facsimile to all orange and grapefruit handlers. Finally, the interim final rule was made available through the Internet by USDA and the Office of the Federal Register. A 60-day comment period was provided for interested persons to respond to the interim final rule. The comment period ended on January 26, 2004, and one comment opposing the assessment increase was received.

The commenter, a Texas citrus producer, stated that he opposes the increased assessment rate because he has lost money growing grapefruit. The commenter does not want to pay an assessment for grapefruit to the Committee.

Under the marketing order, assessments are collected from handlers of Texas citrus to cover order expenses. As stated previously in the regulatory flexibility analysis, some of the assessment costs may be passed on to producers by their handlers. However, USDA concluded that such costs are offset by the benefits derived by the operation of the marketing order.

The commenter went on to ask what could be done to remove themselves from this situation. USDA established the Texas citrus order at the request of producers to help the producers work together to solve marketing problems that they could not solve individually. However, procedures are available to modify, suspend, or terminate an order. Further, the Committee manager is available to discuss the operation of the marketing order with industry members.

Based on the foregoing, no changes are being made to the assessment rate established by the interim final rule.

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

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

The Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture (USDA), has many programs to protect the health of livestock and poultry in the United States. These include programs to prevent endemic diseases and pests from spreading within the United States and programs to prevent the introduction of foreign animal diseases, as well as programs to control or eradicate certain animal diseases from the United States.

Regulations governing the interstate movement of animals for the purpose of preventing the dissemination of animal diseases within the United States are contained in 9 CFR subchapter C, “Interstate Transportation of Animals (Including Poultry) and Animal Products.”

The legal authority for USDA to conduct testing was recently restated in the Animal Health Protection Act (7 U.S.C. 8301 through 8317). Section 10409 of that Act (7 U.S.C. 8308) states that the Secretary of Agriculture “may carry out operations and measures to detect, control, or eradicate any pest or disease of livestock (including the drawing of blood and diagnostic testing of animals), including animals at a slaughterhouse, stockyard, or other point of concentration.”

On November 27, 2002, we published in the Federal Register a proposed rule (67 FR 70864-70875, Docket No. 99-017-1) to amend the regulations in subchapter C, part 71, “General Provisions,” to provide for the collection of blood and tissue samples from livestock (horses, cattle, bison, captive cervids, sheep and goats, swine, and other farm-raised animals) and poultry at slaughter. We proposed to require that persons moving livestock and poultry interstate for slaughter only move the animals to slaughtering establishments, including rendering establishments, that have been listed by the Administrator of APHIS. We did not propose to collect samples from all livestock or poultry at slaughter, but to collect samples whenever we believe it is necessary for effective surveillance.

We solicited comments concerning the proposed rule for 60 days ending January 27, 2003. On January 27, 2003, we published in the Federal Register a notice (68 FR 3826, Docket No. 99-017-2) in which we extended the comment period for a period of 60 days ending March 28, 2003. We received a total of 19 comments by the close of the extended comment period. The comments were submitted by livestock industry and trade associations, individual producers, and other members of the public. Ten commenters were generally supportive of the proposed rule, although most suggested that APHIS make some changes or provide some more explanation in the final rule. The other commenters expressed concern about the effects of the proposed rule and about some of the specific provisions of the proposal, or suggested that the rule should not apply to particular levels of livestock industries. These comments are discussed by subject below.

One commenter stated that it is unclear how the list of establishments in proposed § 71.21(a) would be used. As proposed, the list would include both plants that have agreed to sampling and plants where APHIS has determined sampling is unneeded. What would happen when someday APHIS decides it needs to collect samples at one of the “sampling is unneeded” plants? The commenter suggested that the list should include only plants that have agreed to sampling, even if a subset of plants on the list have been told there are no immediate plans to sample there and they do not need to provide facilities at this time.

We agree with the commenter's concern. In preparing the proposed rule, APHIS sought to minimize effects on plants where we did not plan to conduct testing in the near future. We thought the best way to do this was to simply add such plants to the list, allowing them to continue operations without the need for any correspondence with APHIS regarding testing. If it later became necessary to conduct testing at one of these plants, we could contact the plant and inform them that they needed to provide access and facilities for testing at some future date, or they would be delisted and unable to receive livestock moved interstate.

Further study of this issue has convinced us that the list would be more useful, and better understood by industry, if all the plants listed have agreed to provide access and facilities for testing, when needed. APHIS is now prepared to contact all plants engaged in the receipt of livestock moved interstate. We will inform some plants that we wish to conduct testing in the near future, and will add these plants to the list if they agree to provide the access and facilities required for our testing schedule. We will inform the remainder of the plants that we have no immediate plans to conduct testing at them, but that it may become necessary to do so in the future, and we will add these plants to the list if they agree to provide the required access and facilities if and when they are needed.

To accomplish this change, we would change one sentence in § 71.21(a). In the proposed rule, the sentence read “The Administrator may list a slaughtering establishment after determining that collecting samples for testing from the establishment is not necessary for the purposes of APHIS disease surveillance programs.” In this final rule, we are changing that sentence to read “The Administrator may list a slaughtering establishment or a rendering establishment after determining that collecting samples for testing from the establishment is not currently necessary for the purposes of APHIS disease surveillance programs and the establishment has agreed to allow testing and to provide the access and facilities required by this section upon future APHIS notification that testing is required at the establishment.”

Several commenters were concerned that APHIS would be unaware of some small establishments and fail to list them, possibly causing severe economic harm to plants that are thereby prohibited from accepting animals in interstate commerce. These commenters were concerned that the APHIS list may deal with large establishments, but may miss some plants because they are very small or because APHIS has no interest in sampling there. How will APHIS ensure completeness of the list?

This is a valid concern, but we do not believe any change to the rule is needed to resolve it. Since the proposed rule was published, APHIS has been collecting and verifying the contact information for all plants that would be affected by the regulations, to ensure that we are able to contact them all. If we still fail to contact a plant eligible for listing and leave it off the first list, we are prepared to add the plant to the list after being informed of the omission.  1 A plant in this situation will still be able to accept animals moved interstate while APHIS is in the process of adding it to the list, because APHIS is the agency that would be responsible for denying such movement, and we do not intend to do so when the plant's eligibility to receive such animals is in doubt because of a mistake APHIS made in not contacting the plant about its listing status.

One commenter stated that when APHIS selects plants for sampling, the decision should be based on sound epidemiology, and should consider that surveillance at slaughter at any point in time is not a true random sample of the population. Producers generally only send healthy animals to slaughter. Plant selection would be different depending on whether APHIS was trying to prove freedom from a disease, or delimit a known or suspected disease.

We agree, and intend to follow these principles in determining when and where to collect samples.

Two commenters suggested that to achieve its purpose, the rule should apply not only to slaughtering establishments producing meat for human food, but also to businesses such as rendering plants that accept livestock to produce other products.

The proposed rule applied to all establishments that slaughter livestock, regardless of the intended use of the products produced at the establishment. The proposal covered meat and poultry slaughter establishments operating under federal inspection, state inspection, and slaughter establishments operating under voluntary inspection pursuant to the Agricultural Marketing Act of 1946, 7 U.S.C. 1621 et seq . The provisions of the Federal Meat Inspection Act (FMIA, 21 U.S.C. 601 et seq. ) and Poultry Products Inspection Act (PPIA, 21 U.S.C. 451 et seq. ) cover both establishments that slaughter specified animals for human consumption as well as establishments which slaughter specified animals for other than human consumption. The FMIA and PPIA merely exempt certain establishments, such as those which slaughter specified animals which are not intended for human consumption, from the inspection requirements of the Acts. Therefore, we believe that the proposed rule clearly applied to establishments slaughtering livestock or poultry for human consumption, rendering establishments that slaughter livestock or poultry for processing into products intended for human food, and rendering establishments that slaughter livestock or poultry for processing into products other than human food. However, to make this clear, we have added the phrases “slaughtering establishments, including rendering establishments” and “slaughtering or rendering establishments” in the regulation.

There are about 130 packer/renderer operations in the United States, where a rendering establishment operates on the same premises as a slaughtering establishment and processes primarily waste from that slaughtering establishment. The proposed rule as written would allow APHIS to conduct necessary sampling at such establishments by granting access to the slaughtering establishment. However, there are about 150 “independent renderer” establishments in the United States that do not operate on the premises of a slaughtering establishment or process mainly waste from a single establishment. Some of these independent renderers directly accept livestock for rendering, and these are the types of establishments where APHIS may need to conduct sampling.

In fact, in some circumstances animals received by rendering plants may have a high incidence of disease and provide particularly useful opportunities for sampling, due to the debilitated nature of many animals sent to such plants. Such plants also provide an opportunity to collect a large volume of brain and tissue samples needed for surveillance of bovine spongiform encephalopathy (BSE) and other transmissible spongiform encephalopathy (TSE) diseases, with less disruption to plant operations than would occur in slaughtering establishments.

Recent events have made APHIS testing of cattle at rendering plants even more important. Following the December, 2003, diagnosis of BSE in a single cow in Washington State, the Food Safety Inspection Service (FSIS) implemented a new policy regarding Federally approved slaughtering plants. In an interim rule published in the Federal Register on January 12, 2004 (69 FR 1861-1874, Docket No. 03-025IF), FSIS added language to their regulations excluding all non-ambulatory disabled cattle from the human food supply, and requiring that any such cattle that arrive at a slaughter establishment must be condemned and disposed of through approved means. One approved means for disposing of non-ambulatory disabled cattle is through rendering the cattle for use in products that are inedible for human food. Therefore, APHIS expects a substantial increase in the number of non-ambulatory disabled cattle that are sent to rendering plants.

APHIS has also taken action in response to the diagnosis of BSE in a cow in Washington State. Among other actions, APHIS plans to increase its level of BSE testing in domestic cattle. In each of the past several years, APHIS has tested about 20,000 cattle for BSE. Because non-ambulatory cattle have been identified as a high risk group for BSE, three-fourths, or 15,000, of the cattle tested each year have been non-ambulatory cattle. APHIS selected most of these cattle from the non-ambulatory cattle processed at slaughter plants.

In 2004, APHIS plans to increase substantially the number of cattle it tests for BSE. We expect to select many of these cattle from those sent to rendering plants.

Therefore, to emphasize the rule's coverage of rendering plants that accept livestock moved interstate, we are slightly amending the text of § 71.21(a). We are also removing the definition of recognized slaughtering establishment from § 71.1 because the term no longer appears in the revised text.

In the proposed rule, the introductory text of proposed § 71.21(a) read “Any person moving livestock or poultry interstate for slaughter may only move the animals to a slaughtering establishment that has been listed by the Administrator for the purposes of this part. A slaughtering establishment may receive livestock or poultry in interstate commerce only if the slaughtering establishment has been listed by the Administrator. The Administrator may list a slaughtering establishment after determining that collecting samples for testing from the establishment is not necessary for the purposes of APHIS disease surveillance programs. Otherwise, the Administrator will list a slaughtering establishment after determining that it is a recognized slaughtering establishment or a slaughtering establishment that undergoes voluntary inspection under the provisions of the Agricultural Marketing Act (12 U.S.C. 1141 et seq. ), and that it: * * *.” The section then went on to describe facility space, equipment, and access requirements.

In this final rule, we have amended that text to read as follows: “Any person moving livestock or poultry interstate for slaughter or rendering may only move the animals to a slaughtering establishment or a rendering establishment that has been listed by the Administrator for the purposes of this part.

Livestock or poultry may not be removed from the premises of a slaughtering establishment or a rendering establishment listed by the Administrator except under a permit issued by APHIS, and in accordance with applicable FSIS regulations in this title. A slaughtering establishment or rendering establishment may receive livestock or poultry in interstate commerce only if the establishment has been listed by the Administrator. The Administrator may list a slaughtering establishment or a rendering establishment after determining that collecting samples for testing from the establishment is not currently necessary for the purposes of APHIS disease surveillance programs and the establishment has agreed to allow testing and to provide the access and facilities required by this section upon future APHIS notification that testing is required at the establishment. The Administrator will list a slaughtering or rendering establishment after determining that it meets the following facility and access requirements: * * *.”

Four commenters stated that poultry slaughter plants should be exempted from the rule because poultry disease issues are significantly different from disease issues faced by red meat industries, testing for TSE diseases is an important goal of the rule and there are no TSE diseases known to affect poultry, and existing disease monitoring programs ( e.g. , the National Poultry Improvement Plan and existing Food Safety and Inspection Service [FSIS] sampling programs) are sufficient to monitor for poultry diseases.

We believe that basic disease management issues are similar enough in poultry and red meat industries to support a role for slaughter testing in both. We do not maintain that slaughter testing will ever be the primary means of dealing with poultry disease issues. However, data collected from poultry slaughter testing can be very valuable in dealing with certain disease issues, particularly identifying and characterizing emerging poultry diseases. Slaughter testing at poultry plants has not been needed on as large a scale as it is needed in red meat plants, due to several reasons, including the large amount of poultry testing data already generated under the National Poultry Improvement Plan at the producer level. However, APHIS must have access to collect samples at poultry plants when disease outbreak situations occur that require more surveillance.

One commenter stated that the major differences between poultry and red meat slaughter industries (animal size, layout and construction of plants, diseases and diagnostic methods) mean that a single set of regulatory requirements cannot realistically cover both.

We agree that no single sampling protocol or diagnostic approach would apply to both red meat and poultry industries, due to the different types of diseases involved. However, the rule does not specify this type of detail. It only deals with gaining access to plants to collect samples; it does not include detailed requirements for how to collect samples, how many samples to collect, or how to process them. APHIS will determine the number and type of samples that must be collected from different plants at different times based on current needs for sound epidemiological surveillance of diseases of current concern. Details regarding how samples will be collected— e.g. , on which days, at what time of day, at what point in the production line—will be worked out between APHIS and individual plants, taking into account the nature of the facility in each case. We believe the basic requirements for access and workspace to collect samples apply equally well to poultry and red meat facilities.

Two commenters stated that slaughter testing of poultry will not prevent productivity losses, because flock monitoring by company veterinarians and diagnostic labs provide earlier, more useful awareness of manifestations of disease. One commenter stated that in commercial poultry, velogenic viscerotropic Newcastle disease (VVND) and similar diseases are detected by an extreme surge in mortality, not by slaughter surveillance.

Existing flock monitoring programs produce excellent results in identifying problems with well-known diseases in poultry industries. However, these programs are not designed to focus on new, emerging, or unknown diseases, some of which may not cause immediate large-scale losses to the flock. Slaughter sampling can help APHIS to characterize such diseases and develop useful data about emerging diseases on a national level.

One commenter suggested that alternate sample collection methods should be used for poultry plants that lack space and layout for dedicated inspector facilities. Birds could be bled in the unloading/hanging area before they actually enter the plant. Existing FSIS inspectors on the line could bag and label viscera from birds and place them in a cooler for later, offsite examination.

APHIS will consider using all of these methods if they work well at a particular plant. Procedures for sample collection will be devised in cooperation with the management of each plant to ensure that the needed samples are collected with minimum disruption to plant operations. Certainly, it will be possible to collect needed samples at some poultry plants without adding new inspectors to the production line.

One commenter asked how the rule would enhance VVND detection, and whether there was a blood test suitable for slaughter testing that is specific for VVND.

VVND is not a primary disease target for our plans for slaughter testing, since other effective means of surveillance for it are currently in place. There is no approved blood test for VVND. If it becomes necessary to test for VVND at slaughter, tissue samples would be sent to a laboratory for diagnosis—as with other diseases for which there is no blood test.

Three commenters stated that the rule should apply to all State and federally inspected poultry slaughtering establishments.

Limits to APHIS authority require that our primary focus must be on establishments that receive livestock or poultry moved interstate. However, APHIS always has worked with States cooperatively when States exercise their authority to conduct sampling at plants conducting business intrastate. APHIS and States share testing data from tests conducted under their respective areas of authority.

One commenter stated that the rule would eliminate the need for the National Avian Influenza Program (NAIP) developed with the United States Animal Health Association (USAHA), but would be more intrusive and costly, and not nearly as effective.

This rule would only affect NAIP testing to the extent that we implement sample collection for avian influenza testing under the rule. We will discuss any perceived need for additional avian influenza testing with NAIP participants, and would only implement additional testing at slaughter if it would clearly contribute valuable additional data about the disease.

Three commenters stated that with regard to poultry, the rule should be limited to control of “program” diseases only, i.e. , diseases for which a Federal control or emergency program exists.

Such an approach would not be practical or proactive. One purpose of the sampling conducted under the rule will be to identify and characterize new and emerging disease problems for which Federal or State programs do not exist. Another purpose is to document freedom from exotic diseases that do not exist in the United States, and therefore may not have Federal or State control programs, but which might be introduced at any time. It is important to recognize that our surveillance programs are intended to both characterize known disease problems and to identify emerging disease problems.

Two commenters stated that the proposed rule erroneously stated that the National Poultry Improvement Plan “includes slaughter testing to control certain poultry diseases, particularly those caused by various species of Salmonella, Mycoplasma gallisepticum, M. synoviae, M. meleagridis, and avian influenza viruses.”

The commenter is correct, and we apologize for the error in the preamble to the proposed rule that described slaughter testing as part of the National Poultry Improvement Plan procedures.

Three commenters suggested that the rule should include ways to use the data collected from testing to facilitate poultry exports by providing the basis for addressing the export requirements of trading partners.

We agree that data from slaughter testing authorized by this rule may be used to support statements regarding national or regional freedom from specified diseases on export certificates. However, no change to the rule is needed to make this possible. The currently established procedures for export certification described by APHIS regulations in 9 CFR part 91, by the Office International des Epizooties, and by the World Trade Organization allow national governments to use such data in support of certificate statements. APHIS intends to do so when slaughter testing produces data relevant to export certification.

Five commenters stated that the rule should provide for remuneration by APHIS to plants when inspections disrupt operations, slow movement of the processing line, or cause other financial losses. One additional commenter stated that the rule should provide for remuneration by APHIS when sampling destroys a whole carcass or renders it unusable.

We do not intend to establish a program to compensate plant owners for costs incidental to the process of collecting and testing samples. Many Federal agencies, including APHIS, FSIS, and the U.S. Food and Drug Administration, and others, are authorized to collect product samples for testing purposes and are not required by law to provide compensation for such samples. Such testing is in the public interest and addresses public health concerns. In cases where a plant owner believes the testing program has caused destruction of animals or other articles, the affected party could file a claim under 7 U.S.C. 8308(b)(1), which states that the Secretary “may pay a claim arising out of the destruction of any animal, article, or means of conveyance consistent with the purposes of this subtitle.”

One commenter suggested that the rule should be amended to include only those species and classes of livestock that are currently routinely sampled at slaughter.

As discussed above, our surveillance programs are intended to both characterize known disease problems and to identify emerging disease problems. Strictly limiting testing to species that have been tested in the past would not accomplish that. Certainly, the vast majority of samples will be collected from classes of livestock that are currently routinely sampled at slaughter, but when APHIS sees a reason to test other species of livestock (defined by the Animal Health Protection Act as “all farm raised animals”) we will do so.

Three commenters stated that the rule would impose substantial burdens on establishments that do not have the necessary size or facilities to accommodate the sampling.

As discussed below in the section “Executive Order 12866 and Regulatory Flexibility Act,” we do not believe this will be the case. Based on discussions with livestock industry groups and slaughter industry groups, and the fact that most slaughtering plants accepting animals in interstate commerce already cooperate with voluntary testing programs, we expect there will be minimal effects on most slaughtering plants in complying with the standards.

One commenter stated that excessive facility adaption costs required by the rule may be passed on to producers, particularly harming those (typically small) producers without long-term marketing contracts.

As discussed above, and in the section “Executive Order 12866 and Regulatory Flexibility Act,” we do not believe many facilities will face large adaption costs. The costs they do face may be passed on to producers, or to buyers of the establishment's products, or to both, depending on the business situation of the particular establishment.

The same commenters suggested that some slaughter plants may use the rule's requirements to break existing contracts to buy animals at a certain price and renegotiate the contracts on terms advantageous to the slaughter plants. The example cited was that some pork slaughter plants are buying pigs under long-term contracts at prices that may be higher than current market prices. These plants may choose to become temporarily “unlisted,” effectively breaking the contract, then become listed and resume buying at lower prices, harming producers.

This scenario seems unlikely, because the plant would be undertaking great risks in exchange for questionable gains. First, the plant might be hurt by adverse publicity and possibly lose desired business on a permanent basis during the time it is unlisted. Second, the plant could not make certain business plans based on an expectation that it would be “delisted” on a particular date and “relisted” on another particular date, because APHIS, not the plant, controls the dates of these actions.

One commenter stated that the proposed rule's estimate that affected plants would spend “a few thousand dollars” to comply is highly questionable. Even minor modifications to plants often cost tens of thousands of dollars, and the APHIS estimate would not even cover preliminary engineering and design fees.

Based on experience to date collecting samples at plants, the estimate did not assume that plants would have to build actual additions to plant buildings or engage in significant construction. APHIS is already collecting samples at most of the larger plants in the country where sampling is desired, so access and facilities for sampling are already in place at many large plants. APHIS will work with individual plants to minimize the need for expensive modifications. In view of this, we continue to believe that our estimated average cost to comply is accurate.

One commenter asked whether products from carcasses APHIS samples would be withheld from commerce pending test results. If so, plants face significant costs with respect to sanitary segregation, product and offal storage, and possible adverse publicity.

Typically, APHIS does not order carcasses held pending test results for animal diseases. If plants choose to hold carcasses voluntarily pending test results, that is their business decision, not a result of the rule. In accordance with longstanding practice, APHIS, in cooperation with FSIS, may order a carcass held if it is believed to be infected with an agent that poses a human health risk, e.g. , tuberculosis, or possibly some emerging diseases. Also, in a recent policy notice published in the Federal Register on January 12, 2004 (69 FR 1892, Docket No. 03-048N), FSIS announced that its inspectors will not mark ambulatory cattle that have been targeted for any BSE surveillance testing as “inspected and passed,” until negative test results are obtained. While the APHIS BSE testing program primarily tests non-ambulatory cattle that would not be at slaughter plants, we do intend to test some cattle from slaughter lines, so this policy may result in FSIS holds on several hundred to a few thousand cattle at slaughter plants each year.

Two commenters stated that the rule should require plants to collect information on the premises of origin of animals slaughtered there, and provide this information to APHIS upon request for traceback purposes. Establishment of a national premises identification program would allow more efficient slaughter surveillance.

The issues of animal identification and traceback procedures are outside the scope of this rulemaking. APHIS is continually examining options to improve animal identification and traceback, and will consider these comments in relation to those issues, but will not make any change to this rule based on the comments.

Five commenters stated that records generated under the rule should keep the identity of individual slaughter plants confidential and not subject to Freedom of Information Act (FOIA) requests.

In general, testing results for surveillance purposes are combined and summarized in reports that do not contain information identifying the particular establishments where tests were conducted. APHIS will handle confidential business information from establishments in accordance with statutory and regulatory requirements established to protect it. With regard to FOIA, APHIS cannot make an advance determination to withhold all identifying information; each FOIA request must be evaluated according to current judicial decisions interpreting applicability of the FOIA statute. Exemption 4 of FOIA does protect “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential,” but court cases frequently affect how this exemption is applied. The Department of Justice maintains a “FOIA Updates” Web site that discusses how court cases and new interpretations have affected FOIA over time, at http://www.usdoj.gov/oip/foi-upd.htm.

Two commenters stated that APHIS should generate an annual report of testing activities and results.

APHIS intends to generate regular reports on the findings of surveillance testing done under this rule, as it does for its other surveillance programs. Among other reports, APHIS submits an annual report to the USAHA documenting the findings of APHIS disease surveillance activities.

One commenter stated that while the proposed rule said APHIS and State representatives would provide a copy of the list of approved establishments upon request, APHIS should also consider easier means ( e.g., a Web site) for producers to obtain the information.

We agree with the commenter, and intend to establish a Web site that will contain the list of approved establishments, provide a procedure for establishments to request their addition to the list, and include links to other information and reports about slaughter surveillance testing.

One commenter stated that plants should be promptly informed by APHIS as to what products are being tested and when results are expected, so plants can determine the manner in which they may wish to voluntarily hold and store products pending results.

Section 71.21(c) provides that APHIS will notify establishments, with “as much advance notice as possible,” as to when APHIS will begin and end sampling at the establishment. This notice would also include the type and approximate number of samples APHIS will collect. Test results will be provided to establishments as soon as they are available to APHIS.

Three commenters stated that the rule should provide that APHIS will fully use existing FSIS sampling activities and the plant facilities established for them before requesting additional facilities. A commenter also stated that the proposed rule is too vague regarding when APHIS would make plants provide space or facilities and when APHIS would make do with existing FSIS facilities. Terms like “when convenient,” “adequate,” and “at the Administrator's discretion” do not help readers understand who will be affected or the degree of impact.

APHIS intends to fully utilize existing FSIS sampling activities whenever possible, to avoid adding additional inspectors and increasing the burden on establishments. When APHIS can do so and when we must ask for additional access or facilities is a question that really must be worked out in discussions between APHIS and individual establishments after APHIS decides it must sample at an establishment. It is true that the rule does not let readers deduce which establishments will be sampled and which will not, because the establishments sampled will depend upon ongoing and continually evolving APHIS assessments of disease risk and epidemiology at a national level.

Three commenters stated that APHIS and FSIS should establish a single set of harmonized sampling requirements to facilitate activities and minimize burdens.

While APHIS and FSIS cooperate on sampling, the agencies' different areas of concern and the possibility of sudden external changes affecting disease risk make it unlikely that a single, enduring set of sampling requirements is possible. FSIS continually adjusts its sampling levels to adapt to risk indicators or outbreak reports related to human food borne disease, and APHIS does the same with regard to animal diseases. The two agencies will coordinate their activities as much as possible to minimize burden on establishments.

One commenter asked whether APHIS inspectors have the expertise to make a certain diagnosis in the field, or will they rely exclusively on preliminary tests such as PCR reactions?

While the nature of individual tests and diagnostic procedures is outside the scope of this rule, it is safe to say that some samples will be subjected to rapid field tests, with positive results confirmed later by laboratory analysis. Other tests may only be performed at a laboratory.

One commenter stated that sample collection by truly independent inspectors is needed to stop the plants from selling dirty, disease-causing meat to American consumers.

Since this comment seems to address human disease risks, rather than animal disease risks, it is outside the scope of the rule.

One commenter suggested that massive levels of BSE and TSE testing (at least 1 million rapid tests a year for 5 years) are needed.

APHIS intends to continue its surveillance for BSE and other TSE diseases, and will seek to increase the number of tests to an optimal level. As noted above, we initially expect to double the number of domestic cattle tested from BSE each year, from 20,000 to 40,000. Since the commenter did not provide a basis for suggesting 1 million tests a year for 5 years, we cannot evaluate this specific suggestion.

One commenter stated that the goal of the proposal, which he summarized as providing a valid national profile of diseased animals going to slaughter, should be restated. In surveillance, negative results (healthy animals) can be as important as positive results (diseased animals) with regard to demonstrating freedom from disease to trading partners.

We agree that both obtaining an accurate profile of animal disease on a national level and demonstrating freedom from particular diseases are important goals of the rule.

One commenter noted that the proposal refers to cull sows and boars as the preferred population for pseudorabies testing. The commenter stated that in reality, two- and three-tier pork production systems with pigs moving between epidemiologically distinct sites mean that the health status of culls will not necessarily reflect the health status of market pigs. The Meat Juice Pilot Project was cited as an example of a better approach to test market swine at slaughter.

APHIS has worked closely with the swine industry to ensure that even though swine move between several sites in large-scale production systems, we are still able to do meaningful tracebacks of diseased animals and develop good epidemiological information about production system premises. See, for example, our regulations about interstate movement of swine in production systems in 9 CFR part 71. The Meat Juice Pseudorabies Virus Pilot is an important proof-of-concept project that has tested hundreds of thousands of samples from swine packing plants in Iowa over the past several years. One of the things the pilot demonstrated is that it is possible to collect slaughter samples without unduly disrupting plant operations. APHIS intends to continue working with the pilot project, and to apply its principles as we develop additional testing under this rule.

One commenter asked what the repercussions would be if an animal is unknowingly moved interstate to an unlisted plant. Is the person moving the animal (owner, trucker, manager) liable for not being properly informed?

We are not able to give a blanket answer to this question about enforcement of the rule, because so much depends on the facts of each particular case. In general, persons moving livestock interstate are responsible for knowing the requirements of applicable rules and regulations governing such movement. However, plants will know whether or not they are listed as approved to receive livestock moved interstate, and will also typically know if the livestock they are buying were moved interstate, and an unlisted plant would clearly be in violation if it knowingly received animals moved interstate. During the early implementation of this rule, APHIS enforcement will take into account the need for a learning period while plants, producers, and transporters become familiar with its requirements.

One commenter stated concerns about the risks posed by animals that are delivered to a slaughter plant but are then removed from the premises rather than slaughtered. Such animals might be infected with diseases that would not be discovered because the animals are not available for testing.

APHIS is aware of this problem. Occasionally animals are removed from a slaughter plant premises and moved to either a producer's premises or another slaughter plant. Such uncontrolled movements do present a risk of exposing other animals if the animal being moved is infected, and the movements are inconsistent with the definition of “moved to slaughter” in various APHIS regulations, which presumes that animals moved to slaughter will be slaughtered at the destination.

Therefore, we are adding language in this final rule to prohibit the removal of animals moved interstate to a slaughter or rendering establishment from the premises of that slaughter or rendering establishment unless the animals are moved in accordance with a permit issued by APHIS. While removal of animals would generally not be allowed, APHIS may issue a permit for such movement in exceptional cases, e.g., if a plant accidentally receives a shipment of animals that it is unable to slaughter because the size of the animals does not match the slaughter plant's line capabilities, or the slaughter plant is experiencing mechanical difficulties that bring processing to a halt.

To accomplish this change, we are adding the following sentence to § 71.21(a): “Livestock or poultry may not be removed from the premises of a slaughtering establishment or a rendering establishment except under a permit issued by APHIS, and in accordance with applicable FSIS regulations in this title.”

One commenter stated that with regard to bovine tuberculosis testing, the proposed rule did not present statistically valid data or identify specific benefits for increasing testing from 1,200 head per year to 4,000 or more, since the current number of cattle infected does not seem significant enough to warrant increased testing.

Eradication of bovine tuberculosis is a priority for USDA and the cattle industry. It should be remembered that bovine tuberculosis caused more losses among U.S. farm animals in the early part of the 20th century than all other infectious diseases combined. Substantial decreases in tuberculosis levels in recent years are partly a result of increased testing for the disease. As levels of tuberculosis decline in a large national cattle population, its low incidence requires more testing to locate remaining pockets of the disease.

One commenter stated that one purpose of the rule is stated as allowing APHIS to collect slaughter samples “whenever we believe it is necessary.” This commenter said APHIS should develop standards for when it is “necessary,” to avoid being arbitrary and capricious.

Collecting slaughter samples is necessary at different times and under different circumstances to meet a wide variety of surveillance goals. It is not feasible to develop a rule of general applicability that will describe in advance when sampling will be necessary. Sampling may be used when it is suspected that a disease is in an area, to determine its presence or absence, and to estimate the incidence or prevalence if the disease is present. Sampling may be needed to provide data for new or updated risk analyses produced in support of disease control programs, or required to open international markets for products. Sampling may be increased in an area when a disease outbreak is suspected, then reduced in that area when sufficient tests have been done to prove the suspicion was unfounded. Constantly changing disease outbreak, trade, and livestock industry conditions make it necessary for APHIS surveillance experts to continually revise the mix and degree of sampling activities, based on application of their expert knowledge to current conditions.

Other commenters raised several issues that were outside the scope of this rulemaking that will not be discussed in this final rule.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule with the changes discussed in this document.

This rule is needed to allow APHIS to conduct effective surveillance programs for dangerous animal diseases, including improved surveillance for BSE in response to the finding of that disease in a cow in Canada, and the December 2003 diagnosis of BSE in a cow in Washington State. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined, in accordance with the provisions of 5 U.S.C. 553(d)(3), that there is good cause to make this rule effective less than 30 days after publication in the Federal Register.

This final rule has been reviewed under Executive Order 12866. The rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

The economic analysis prepared for this final rule is set out below. It includes both a cost-benefit analysis as required by Executive Order 12866 and an analysis of the economic effects on small entities as required by the Regulatory Flexibility Act.

APHIS will require persons moving livestock (horses, cattle, bison, captive cervids, sheep and goats, swine, and other farm-raised animals) and poultry interstate to slaughter or rendering to move them only to slaughtering or rendering establishments that have been listed by the Administrator. The Administrator may list an establishment after determining that it is not currently necessary to conduct testing there and that the facility has agreed to grant access and provide facilities if and when needed, or that testing is necessary and that the establishment provides access and facilities for the collection of tissue and blood samples from the animals slaughtered. We are taking this action to increase the effectiveness of our surveillance for livestock diseases. Collection of samples currently occurs on a small, voluntary scale, but it needs to be expanded and to include both large and small slaughtering plants. Samples are currently collected by personnel employed by APHIS, FSIS, or the slaughtering plants themselves.

According to National Agricultural Statistics Service (NASS) and FSIS statistics for slaughtering establishments that may receive animals in interstate movement, there are approximately 795 plants slaughtering cattle, 757 plants slaughtering swine, 350 plants slaughtering poultry, and 2 plants slaughtering horses. (The horse plants will not be addressed further in this analysis because APHIS currently has no plans to collect samples at them.) Fourteen of the cattle plants and 11 of the swine plants are very large operations that account for 50 percent of the cattle and swine slaughtered each year. Several dozen of the plants are of moderate size; the rest are small businesses. Some of these plants slaughter both cattle and swine, and some slaughter other animals as well (sheep, horses, cervids, etc.). Some degree of sample collection already occurs at virtually all of the cattle plants, e.g. , to collect the 12 million blood samples required each year under APHIS's regulations in 9 CFR part 78 for States to maintain their brucellosis classifications. Some sample collection already occurs at about 20 to 25 of the largest swine plants to collect blood samples for pseudorabies testing.

This final rule will allow us to collect samples at plants where sampling does not now occur, but where sampling is needed to fill information gaps in our animal disease programs. We expect to initiate testing at several large plants, primarily swine plants, where testing has not occurred before, and at approximately 20 small businesses.

As noted above, many slaughtering plants already voluntarily cooperate with APHIS to allow us to collect samples for testing. Because of the relatively small number of additional animals that will be tested and the relatively small number of cases of disease expected to be identified, we do not expect that this rule will have a significant economic effect on any affected entities. Based on discussions with livestock industry groups and slaughter industry groups, and the fact that most slaughtering plants accepting animals in interstate commerce already cooperate with voluntary testing programs, we expect there will be minimal effects on most slaughtering plants in complying with the standards.

The primary economic effects of this rule will be direct costs to those slaughter and rendering plants that will have to provide us with access, workspace, and equipment to collect samples. We believe that some of the 20 to 30 plants that have not already been providing access under voluntary sampling programs may incur some facility adaption costs the first time that we collect samples at them, if they have to create or furnish new office space for inspectors to comply with § 71.21(b), and afterwards may incur some lesser costs if the speed at which the processing line moves is slowed or stopped for samples to be taken.

In the following sections we discuss potential economic effects on the various categories of slaughtering plants, based on the types of animals each processes. We do not specifically address rendering plants in these sections because, excluding the effects of increased BSE testing, the rule is expected to affect only three or four rendering plants, those plants are not small businesses, and we cannot accurately estimate economic effects on rendering plants because we have little economic information concerning these plants. APHIS is currently developing plans to increase BSE testing of cattle at rendering plants, but we are not sure yet how many separate plants must be sampled to provide a representative sample. Preliminary information from the rendering industry suggests that plants that currently render non-ambulatory animals would also process most of any increase in the number of such animals that is rendered. If this is the case, the number of rendering plants affected by this rule would remain at three or four, or increase only slightly. In recent discussions, renderers have also suggested that allowing APHIS to collect sample would not impose significant costs. The renderers were concerned that later policy developments addressing food safety could significantly affect the costs involved in processing non-ambulatory animals. For example, renderers stated that if later decisions allow carcasses of non-ambulatory cattle to be rendered for edible products after the cattle have tested negative for BSE, the renderers would have to store the carcasses in refrigerated facilities while awaiting test results.

First, we present two tables summarizing the per-unit costs and the total industry costs estimated to result from the blood and tissue sampling requirements in this final rule for cattle, swine, and sheep. Bear in mind that the major costs of sample collection are borne by the Federal government, and that the costs to slaughter plants are limited to costs associated with providing access for sample collection.

APHIS is trying to increase surveillance for brucellosis, pseudorabies, and tuberculosis at these plants. Collection of samples needs to be expanded to include both large and small slaughtering plants. Under this final rule, samples will be collected by APHIS or FSIS personnel, contractors, or the slaughtering plants themselves.

The meat packing industry is included in the North American Industry Classification System (NAICS) code of 311611. The Small Business Administration (SBA) definition of small business for NAICS 311611 is a firm with less than 500 employees.

In 2002, the vast majority of meat packing plants were small entities under SBA guidelines. There were 292 large meat packing plants under Federal inspection in 2002. The 50 largest meat companies in the industry had combined sales of $119.7 billion. Of this total amount, just the 10 largest companies produced $86.6 billion of the sales. The remaining 40 companies produced $33.1 billion in sales.

There are 706 federally inspected plants that slaughtered at least one head of cattle in 2002. Fifteen plants account for over 56 percent of the total cattle killed. (Agricultural Statistics Board, NASS, Livestock Slaughter 2002 Summary, March 2003.) There are 683 plants that slaughter hogs. Nine plants account for 43 percent of the total hogs killed.

Currently, FSIS collects about 1,200 tissue samples from slaughter cattle each year to be tested for tuberculosis. There are approximately 100 positive test results per year. It is estimated that 0.0002 percent of all U.S. cattle may be infected with tuberculosis. There were 98.5 million head of cattle in the United States as of January 1, 1999. Therefore, it is estimated that fewer than 200 head of cattle are infected with tuberculosis at any one time.

Under this final rule, the direct costs of collecting a tissue sample and testing it for tuberculosis will be borne by APHIS, in either salary or contractor costs. It takes a veterinarian about 30 minutes to collect a sample for tuberculosis testing. An approximate hourly wage rate for a Federal or contractor veterinarian to do these duties is $22 to $28 per hour. The cost of laboratory analysis to test for tuberculosis is about $20.

A slaughtering plant may incur a cost if its processing line must be slowed or stopped for a sample to be taken. Usually, samples can be collected without slowing the line. Currently about 0.003 percent (1,200) of cattle slaughtered are tested for tuberculosis, and we anticipate that after this rule we will initially increase testing to 4,000 head annually. Over time, the annual number of cattle tested for tuberculosis at slaughter may increase to about 5,300, to provide fully adequate surveillance. Because of the small number of additional tests for tuberculosis, this aspect of the final rule will not have a material effect on small business entities.

If a tuberculosis test is negative, the carcass is processed and sold. If the test is positive, the carcass cannot be sold unless it is done in accordance with FSIS regulations at 9 CFR 311.2, and steps are taken to trace the diseased animal back to its source. If this traceback is successful, the herd has to be quarantined while it is tested and may be depopulated if found positive. However, economic effects related to herd quarantine and depopulation are not reasonably linked to this rule, since herds are already quarantined and depopulated under other APHIS regulations.

This final rule will not change the number of brucellosis test samples collected from cattle or the way in which they are processed. This final rule will have no significant economic effect with regard to cattle tested for brucellosis.

Currently there are approximately 12 million blood samples collected each year to test for brucellosis. Under part 78, States must collect these samples in order to maintain their brucellosis status.

There are 795 federally inspected plants that slaughtered at least one head of cattle in 1998. Fourteen plants account for over 50 percent of the total cattle killed. (Agricultural Statistics Board, NASS, Livestock Slaughter 1998 Summary, March 1999.) All slaughtering plants that ship products across State lines are subject to Federal inspection.

In 1998, there were 35.5 million head of cattle slaughtered; 98.1 percent were subject to Federal inspection. Only cattle that are 2 years old or older are tested for brucellosis.

Most of the blood sample collection is done by plant personnel or by FSIS. APHIS personnel collect only a small percentage of the total samples, approximately 50,000 samples per year, or 0.4 percent of the total.

Testing of the samples for brucellosis costs between $0.10 and $0.50 per sample. The high range of costs will cover followup tests from a positive result.

Currently there are about 750,000 samples collected per year. An estimated 1.2 million samples are needed for more complete testing. We estimate that less than 1 percent of swine herds are infected with pseudorabies.

At a large plant, two people will be needed to do the collection of blood samples on a full-time basis, at a cost to the government of $25,000 to $30,000 per year.

At smaller plants, where not enough swine are slaughtered to warrant having an employee collect blood samples full time, APHIS pays for each sample collected. Rates range from $0.45 to $0.90 cents per sample.

The sample is sent to a lab for testing. It costs approximately $1 per sample for testing. APHIS has some contracts and cooperative agreements with universities to do some testing. The cost is negotiated with each laboratory separately. The rate can be up to $1.50 per sample.

There are 757 plants that slaughter swine. Eleven plants account for 48 percent of the total swine killed. In 1998, 101.1 million swine were slaughtered; 98.3 percent of all swine slaughtered are slaughtered under Federal inspection. (Agricultural Statistics Board, NASS, Livestock Slaughter 1998 Summary, March 1999.) All slaughtering plants that ship products across State lines are subject to Federal inspection. Some 96 percent of the federally inspected swine at slaughter were barrows and gilts (younger pigs, with less fat, that are used for higher quality cuts of pork). There were about 4 million sows and boars slaughtered in 1998. For testing for pseudorabies, these are the swine that we are concerned about. There is about a 40 percent turnover in sows per year.

If a herd tests positive, it is then quarantined. The swine can be sold for slaughter but cannot be sold for breeding stock. Swine sold for breeding stock are typically twice as expensive as swine sold for slaughter.

As noted previously, the slaughtering plant industry is included in NAICS code 311611. The SBA's definition of small business for NAICS 311611 is a firm with less than 500 employees. Only firms with more than $100 million in sales average more than 500 employees. Two slaughtering plants that process sheep had sales of more than $100 million in 1998. (SBA Office of Advocacy, http://www.sba.gov/advo/stats/int_data.html. )

There are 556 federally inspected plants that slaughtered at least one sheep in 1998. Two plants account for over 40 percent of the total sheep slaughtered. (Agricultural Statistics Board, NASS, Livestock Slaughter 1998 Summary, March 1999.) In 1998, 4.429 million sheep were slaughtered, of which 94.8 percent were subject to Federal inspection. Only about 212,000 of these were mature sheep suitable for scrapie testing.

It is estimated that roughly 1.2 percent of all U.S. sheep flocks are infected with scrapie. In 1998, there were only 63 cases of scrapie reported. Given this incidence, approximately 15,000 animals should be sampled at slaughter each year for optimal monitoring for scrapie. Five distinct tissue samples are collected from each animal's head, resulting in about 75,000 samples to be collected. This level of sampling will detect the incidence and distribution of scrapie with a confidence of over 95 percent.

This final rule is not expected to have a significant adverse economic effect on small businesses. Blood and tissue samples will be collected by APHIS or FSIS personnel or by a contractor paid for by USDA. Firms may incur secondary costs for collecting tissue samples for testing as a result of production lines that may have to be slowed down or stopped temporarily. Firms will also incur costs for providing the space, furnishings, and equipment required for the personnel collecting samples, although we believe many firms will be able to minimize these costs by utilizing some of the space and equipment already provided for Federal and State inspectors and firms' quality assurance personnel.

The primary direct costs will be the cost of collecting samples and the cost of testing samples, both of which will be borne by USDA. Over the long term, samples will cost about $5 to $10 each to collect and $30 each to test. Additionally, the plant may incur a cost because the speed at which the processing line moves may be slowed or stopped for a sample to be taken, similar to the effects already caused by FSIS inspections. The sheep or goat carcass would not have to be held by the plant while the testing is done, so it may continue along on the processing line, and the processor will not incur the cost of having to hold the carcass.

Additional testing for scrapie will provide a better record of diseases and enhance our ability to limit the infection of additional flocks with scrapie. While the costs of additional testing are visible, the benefits often are not. The true economic benefit of additional testing is that it will contribute to control and eventual eradication of scrapie, resulting in better overall flock productivity, a reduction in flocks depopulated due to scrapie, and expanded market opportunities for animals that can be marketed as scrapie-free. Production of agricultural commodities varies for many reasons, and it is difficult to determine the change in production due to additional testing. Because the percentage of animals currently infected with scrapie is small, we expect that slaughter testing will result in the identification and quarantine of very few additional infected flocks. Quarantining the animals in these flocks is not likely to have a statistically significant effect on current or future production.

Captive cervids might be tested at slaughter for tuberculosis and for chronic wasting disease (CWD). The cost per animal of testing cervids for tuberculosis is similar to the cost per animal of testing cattle for this disease. The cost per animal of testing cervids for CWD is similar to the cost per animal of testing sheep for scrapie.

The number of cervids farmed is small compared to cattle, swine, or sheep. Because it is a small industry, NASS does not collect data about cervid production or slaughter. According to the North American Elk Breeders Association, there are 150,000 to 160,000 elk being raised on farms in North America. This number includes elk raised in Canada and Mexico. The number of deer raised on farms is uncertain, but it is also a very small industry compared to cattle, swine, or sheep.

As stated earlier, the meat packing industry is included in NAICS code 311611. The SBA's definition of small business for NAICS 311611 is a firm with less than 500 employees.

In 1996, 91 percent (1,260) of the total number of firms (1,341) in the meat packing business qualified as small businesses. Only firms with more than $100 million in sales average more than 500 employees. Eighty-one firms had sales of more than $100 million in 1996. (SBA Office of Advocacy, http://www.sba.gov/advo/stats/int_data.html. )

Plants that slaughter captive cervids qualify as small businesses. It seems that, currently, there are not enough cervids slaughtered per year to motivate large meat packing businesses to devote production lines to the slaughter of cervids.

This final rule will not have an adverse effect on small businesses that slaughter cervids. Blood samples will be collected either by APHIS, by FSIS, by contractors, or by the firms themselves. Firms will be compensated on a per unit basis for collecting the samples. The costs of testing captive cervids will be similar to the costs of testing cattle. Because of the small number of tests that are expected to be done, this final rule will not have a material effect on small business entities.

In 1997, there were 315 poultry processing firms (NAICS code 311615) according to SBA statistics. To qualify as a small business, firms engaged in meat processing must have less than $500,000 in annual receipts. Even the smallest classification of poultry processing firms, those with fewer than 20 employees, averaged over $1 million in annual receipts in 1999. While this does not exclude the possibility that there may be poultry processing firms that qualify as small businesses, we have been unable to locate any such firms. This final rule will not have a significant adverse effect on small businesses.

It is estimated that this final rule may result in the collection of a maximum of 300 samples per quarter, collected from about 100 different poultry plants, to conduct adequate testing for exotic Newcastle disease, avian influenza, or other diseases that APHIS may wish to monitor. Blood samples will be collected either by APHIS, by FSIS, by contractors, or by the firms themselves. Firms will be compensated on a per unit basis for collecting the samples.

We expect that additional testing conducted after this final rule takes effect will be an insignificant amount compared to the testing and inspection already performed at poultry plants. The NASS Agricultural Statistics Board report entitled “Poultry Slaughter,” dated February 4, 2000, gives representative figures for the amount of poultry that is inspected or tested at processing plants, and the fraction that is condemned for failing inspection. In December 1999, the preliminary total live weight of poultry inspected was 3.95 billion pounds, up fractionally from the previous year. Ante-mortem condemnations during December 1999 totaled 15.3 million pounds. Condemnations were 0.39 percent of the live weight inspected. Post-mortem condemnations, at 62 million pounds (N.Y. dressed weight), were 1.75 percent of quantities inspected.

In contrast, even if APHIS tested poultry plants at the maximum level that might be necessary under disease surveillance scenarios, and if such testing always resulted in destruction of the poultry tested rather than just collection of a test sample, the total effects would be collection of under 120,000 samples per year, and the loss of under 600,000 pounds of poultry per year.

Some firms expressed concern that sample collection in plants could result in accidents or injury that increase their liability costs. Collection is often done in potentially hazardous conditions; for example, the floors may be wet, the quarters may be cramped, and there are sharp knives and equipment present.

It is difficult to estimate the average cost incurred because of liability issues. The relevant issue here is the marginal increase in liability costs due to this regulation, which is very small. Slaughtering plants are already involved in a potentially hazardous activity. Adding the requirement to collect blood and tissue samples will not add significantly to the liability incurred by a plant, but a small increase in liability costs may be expected.

Additional testing will provide a better record of diseases and enhance our ability to prevent potential outbreaks of diseases. While the costs of additional testing are visible, the benefits often are not. The true economic benefit of additional testing will be the amount by which production is increased or the amount by which production is not lost due to herds being depopulated because of disease. The benefits of this program include better animal disease control, greater productivity in flocks and herds, fewer animals lost to disease, and greater opportunity to develop export markets for animals and products that can have their disease status backed up by an effective slaughter testing program. Increased testing of slaughter samples will allow us to more quickly identify and isolate herds or flocks affected by disease, reducing the number of animals lost to disease. Production of agricultural commodities varies for many reasons, and it is difficult to determine the change in production due to additional testing. Because the percentages of animals currently infected with diseases such as pseudorabies and tuberculosis are very small, additional testing for these diseases resulting in the quarantine of some additional herds may not have a statistically significant effect on current or future swine and cattle production, but effective surveillance for these diseases can dramatically increase export markets, increasing the value of herds. Another benefit of additional testing will be that it will contribute to lowering the overall costs of animal disease control programs by generating epidemiological data to make these programs more effective. APHIS alone has spent hundreds of millions of dollars in the past decade on these programs, and more hundreds of millions of dollars on indemnity programs to buy and destroy diseased animals. Over time, a more effective slaughter testing program could reduce these costs. However, in the short-term, a more effective slaughter testing program may detect a higher incidence of diseases, and so may generate greater costs. Gains will accrue in the long-term from improved herd and flock health, reduced disease costs, reduced prophylactic costs, and expanded export opportunities.

This final rule will not affect the number of samples from cattle collected to test for brucellosis or the way in which the testing is conducted. There will be no economic effect due to this final rule with respect to collecting blood samples for cattle brucellosis. With regard to cattle tuberculosis, on average one herd per year has to be eradicated because of a positive tuberculosis test. The value of the average size herd in 1996 and 1997 ranged from $46,200 to $52,976. The value of a herd that has to be eradicated can vary widely depending on the size of the herd and market prices. If one cow is found to be tuberculosis positive, the entire herd is quarantined and may be depopulated. Eliminating the cost of depopulating a herd will represent only a small part of the benefit of additional testing. One benefit of this final rule will be the value of the herds that do not have to be depopulated. As discussed above, another benefit to both the cattle industry and the general public will result from improved disease control and resultant increased productivity.

Elimination of pseudorabies directly impacts producer income. Producers who are able to eliminate this disease from their herds are able to earn up to $4 more per hog. In addition, pseudorabies kills numerous young piglets and causes reproductive problems in sows. Historically, each year pseudorabies has cost several billion dollars in lost producer revenues and the cost of control measures. To the extent that collecting blood samples and testing contributes to faster elimination of pseudorabies, this rule will have a positive economic impact on producer incomes. APHIS hopes to eliminate pseudorabies within the next year. Additional slaughter testing should allow pseudorabies to be eliminated from U.S. swine herds, or reduced to an insignificant level, several months earlier than would otherwise be possible. The additional slaughter testing that will be allowed will also help establish baseline data that could be used to develop disease control programs to reduce the impact on industry of other swine diseases such as porcine reproductive and respiratory syndrome.

Improved surveillance will aid eradication of scrapie, which will directly affect producer income. Producers who are able to eliminate this disease from their flocks lose fewer animals to disease and can, therefore, maintain more animals at a lower production cost per animal. They can also sell their animals at a higher price and with fewer regulatory costs and may be able to sell to additional foreign markets. To the extent that collecting samples and testing contributes to elimination of scrapie, this final rule will have a positive economic effect on producer incomes. The additional slaughter testing that will be conducted will also help establish baseline data that could be used to develop disease control programs to reduce the economic effect on industry of other sheep diseases.

As noted above, the additional testing that will be conducted under this final rule will serve as a minor but valuable supplement to the poultry testing already conducted in accordance with the National Poultry Improvement Plan.

The poultry industry, like other animal industries, will benefit in the form of increased productivity and possible expansion of overseas markets. More effective disease surveillance is particularly important in the poultry industry because outbreaks of severe avian disease frequently must be controlled by destroying a number of poultry houses in a flock or the entire flock. This often means the loss of tens of thousands of poultry to control a single outbreak. More effective surveillance can also help reopen poultry export markets more quickly following an avian disease outbreak, by documenting containment of a problem.

In addition to the benefits cited above for other industries, the cervid industry at present faces the possibility that its major export markets will be cut off unless there is an effective slaughter testing surveillance program for CWD. The Republic of Korea recently banned importation of elk antlers from the United States due to concerns about this disease, and other countries may follow. The elk industry depends on foreign markets for a large part of its revenue, and these markets have indicated that they may not import U.S. elk products unless there is a reasonably effective testing program to ensure the products are not from CWD-positive elk.

The total direct cost of the testing this final rule envisions for cattle, swine, and sheep is between $12.933 million and $25.848 million, borne by APHIS. However, as noted above, APHIS already conducts some of this testing on a voluntary basis, although we collect only a fraction of the samples we believe are needed for an effective testing program. If we subtract the cost of testing APHIS is already conducting, the new total direct costs are between about $3.4 million and $4.6 million. In addition to these direct costs for cattle, swine, and sheep, there will be direct testing costs for slaughter testing of horses, cervids, and poultry. The extent of testing to be done in this area is still uncertain, but it will be much smaller than the program for cattle, sheep, and swine, and should not amount to more than a few million dollars in annual direct costs. In addition to direct testing costs borne by APHIS, slaughtering plants will bear certain direct costs related to providing space and access for sample collection, and possible losses if production lines must be slowed for sample collection. We requested comments providing data on costs that slaughter plants might incur, including costs due to slowing the production line as well as office space, equipment, and other costs, but we did not receive any specific data on these subjects.

The benefits of this program include better animal disease control, greater productivity in flocks and herds, fewer animals lost to disease, and greater opportunity to develop export markets for animals and products that can have their disease status backed up by an effective slaughter testing program.

The overall costs of this program that are borne by industry are expected to be relatively minor, though further information is needed to assess costs for those plants that need to make adjustments to their operations to comply. In most cases, small businesses will have to do little more than to allow sample collectors to have access to their production lines.

In the following table, costs are compared for the level of slaughter sampling and testing APHIS currently conducts and the increase in such activities we expect under this final rule. This table does not include the benefits achieved by current and proposed sampling activity levels, because data are not available to quantify the benefits. As discussed above, the benefits result from avoiding animal disease outbreaks, and there are too many possible outbreak scenarios to allow a meaningful calculation of a benefits range. The expected benefits result from the expectation that sampling and testing helps APHIS avoid some additional animal disease outbreaks, thereby avoiding: (1) The direct cost of dealing with an outbreak (cleaning and disinfection, compensation to producers, quarantine enforcement, etc.), (2) production losses, (3) induced price changes, and (4) the effect of the outbreak on other sectors of the economy. In view of the fact that the economic output of U.S. livestock industries exceeds $100 billion, an avoided impact of even a fraction of 1 percent on this sector will substantially exceed the total sampling costs estimated in table 5.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are in conflict with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

The information collection burden in this final rule includes 120 hours that were not included in the proposed rule. Specifically, the additional hours are for compliance by rendering plants, which were added to the coverage of the final rule. In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection or recordkeeping requirements included in this rule have been approved by the Office of Management and Budget (OMB) under OMB control number 0579-0212.

The Animal and Plant Health Inspection Service is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. For information pertinent to GPEA compliance related to this rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

Section 343(a) of the Trade Act of 2002, as amended (the Act; 19 U.S.C. 2071 note), required that the Bureau of Customs and Border Protection (CBP) promulgate regulations providing for the mandatory collection of electronic cargo information, by way of a CBP-approved electronic data interchange system, before the cargo is either brought into or sent from the United States by any mode of commercial transportation (sea, air, rail or truck). The cargo information required is that which is reasonably necessary to enable high-risk shipments to be identified for purposes of ensuring cargo safety and security and preventing smuggling pursuant to the laws enforced and administered by CBP.

On December 5, 2003, CBP published in the Federal Register (68 FR 68140) a final rule specifically intended to effectuate the provisions of the Act. In particular, a new § 122.48a was added to the CBP Regulations (19 CFR 122.48a) to implement the Act's provisions relating to inbound air commerce. Section 122.48a(a) describes the general requirement that for inbound aircraft with commercial cargo aboard, CBP must electronically receive information concerning the incoming cargo in advance of its arrival. Section 122.48a(e)(1) set a general compliance date of March 4, 2004 for those air carriers required to participate, and other parties electing to participate, in advance automated cargo information filing. However, pursuant to § 122.48a(e)(2) CBP has set forth a revised implementation schedule in order to complete necessary modifications to the approved electronic data interchange system, train CBP personnel at affected ports and complete certification testing of new participants.

The CBP-approved electronic data interchange system, through which the affected parties will be required to transmit and receive information pursuant to these regulatory provisions, is known as the Air Automated Manifest System (Air AMS). Although CBP and certain trade members presently participate in Air AMS on a voluntary basis, the final rule established procedures not currently supported by the existing system edits in Air AMS. Therefore, CBP has undertaken to modify certain critical aspects of Air AMS. CBP will introduce these changes by May 13, 2004, when a 90-day certification testing period begins for all parties who develop Air AMS communications.

Accordingly, it is necessary for CBP to revise the compliance dates for the advance electronic transmission of air cargo information as specified in the following implementation schedule. Compliance dates are staggered because they will allow CBP to deploy training resources for its personnel on a regional basis and prevent CBP from having to conduct certification testing for all new participants at one time.

Beginning on the dates set forth in the implementation schedule above, CBP will require electronic transmission of advance information for any cargo that arrives in the United States by air at a port of entry within one of the locations specified.

The technical specifications required for participation in Air AMS are detailed in the CBP publication Customs Automated Manifest Interface Requirements (CAMIR-AIR), currently available on the CBP website at: http://www.cbp.gov/xp/cgov/import/operations_support/automated_systems/ams/camir_air/.

Once the changes to Air AMS are introduced, CBP will update CAMIR-AIR with the new technical specifications. Those seeking to develop software based on the new system edits may begin certification testing of such software after May 13, 2004. Existing Air AMS participants and potential Air AMS participants will have until the revised compliance date to complete changes to their software or procure software that is compliant with the new specifications.

This supplementary information section provides the public with access to the information it will need to comment on the Additional Questions and Answers. It consists of an Introduction, Background on Internet Recruiting, Additional Questions and Answers, Request for Comments, and Overview of the Collection of Information.

Because of the number and importance of the issues addressed in the Uniform Guidelines on Employee Selection Procedures, and the dual needs of providing an interpretation and providing guidance to employers and other users and Federal personnel who have enforcement responsibilities, the Equal Employment Opportunity Commission and the other issuing Federal agencies adopted two sets of Questions and Answers (44 FR 11996, March 2, 1979; 45 FR 29530, May 2, 1980) to clarify and interpret the Uniform Guidelines. These UGESP agencies recognized that it might be appropriate to address additional questions at a later date. The Additional Questions and Answers included in this document are intended to clarify how the Uniform Guidelines on Employee Selection Procedures apply in the context of the Internet and related technologies. However, this document does not solicit comments on the Uniform Guidelines.

The Internet and related electronic data processing technologies have enjoyed an exponential expansion since the late 1990s and now are established as important recruiting and job-seeking tools. Characterized by massive amounts of information rapidly transmitted between job seekers and employers, these technologies encourage employers and job seekers to explore the labor market broadly and freely. While the Internet and related technology has transformed recruitment and job hunting in recent years, our country's employment nondiscrimination laws, such as Title VII of the Civil Rights Act of 1964 (Title VII) and Executive Order 11246, as amended, continue to apply to all aspects of employment including recruitment. The advent of the Internet and related technology raises questions about how to monitor employment practices when employers and job seekers use online resources.

In early 1999, concerns about EEO compliance and online recruitment came to focus on the Uniform Guidelines on Employee Selection Procedures. 1 At that time, the Equal Employment Opportunity Commission (“EEOC” or Commission) in conjunction with the other UGESP agencies—the Department of Labor (“DOL”), the Department of Justice (“DOJ”), and the Office of Personnel Management (“OPM”)—sought clearance from the Office of Management and Budget (“OMB”) for UGESP's recordkeeping requirements under the Paperwork Reduction Act. In 2000, the OMB instructed the EEOC to consult with its sister agencies and address the “issue of how use of the Internet by employers to fill jobs affects employer recordkeeping obligations.”  2 The OMB instructed the EEOC, in cooperation with DOL, DOJ, OPM and OMB, to “evaluate the need for changes to the questions and answers accompanying the Uniform Guidelines necessitated by the growth of the Internet as a job search mechanism.” This document is the product of that evaluation. Each agency may provide further information, as appropriate, through the issuance of additional guidance or regulations that will allow each agency to carry out its specific enforcement responsibilities.

The Uniform Guidelines on Employee Selection Procedures were issued in 1978 by the EEOC, the Department of Labor, the Department of Justice, and the Office of Personnel Management under Title VII and Executive Order 11246. The UGESP serves two major purposes. First, it addresses certain recordkeeping issues. For example, UGESP describes the evidence that employers should have available to analyze whether their employment selection procedures had a disparate impact on protected groups. 3 Second, UGESP details methods for validating tests and selection procedures that are found to have a disparate impact. Disparate impact is when an employer uses a practice or standard, like a hiring or promotion requirement or an employment test, that has a statistically significant disproportionate negative effect on a protected group, even though the standard or test is not intentionally discriminatory. Such a practice or standard is unlawful under Title VII if it is not job-related and consistent with business necessity.

UGESP states that employers should maintain “records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group.”  4 UGESP provides for employer self-analysis for disparate impact based on these records or other information. The Federal agencies that enforce Title VII and/or Executive Order 11246 may use these records or other information to investigate disparate impact charges or litigate cases.

UGESP provides for the maintenance of records or other information on “applicants.” A 1979 guidance in Question and Answer format, issued by the EEOC, DOL and sister UGESP agencies, provides a general definition of “applicant.”  5 Interpreting the definition of “applicant” in the context of the Internet and related electronic data processing technology is the focus of this document. With this interpretation, the UGESP agencies are providing guidance about when employers should identify the race, gender, and ethnicity of their applicant pool when they use the Internet and related technologies. This document and the UGESP do not alter, in any way, the legal rights and responsibilities of employers, applicants and employees under Title VII and Executive Order 11246, under any legal theory including disparate impact. The right of applicants or employees to file a charge or complaint of discrimination, or to file a lawsuit, are unchanged by UGESP and by this document's discussion of the term “applicant.”

The UGESP agencies have collaborated in conducting the evaluation OMB directed in 2000. This evaluation shows that the Internet and related technologies have had the effect of encouraging both job seekers and employers to “scout the possibilities” more freely and casually than in the pre-Internet era due to many factors, including the broad reach and relative anonymity of the Internet, the sophisticated capabilities of online and related data processing tools, and the marginal cost of making more contacts. The scope and speed of this technology is to be encouraged; it advertises employment opportunities to a broad audience. Necessary to the effectiveness of online recruitment, however, is the ability to manage the data that are received. In light of this new technology, which has created a new context for the employment market, the agencies have concluded that they must update the Questions and Answers accompanying UGESP. The Questions and Answers below reflect the agencies' considered judgment in light of the historical understanding that “[t]he precise definition of the term ‘applicant’ depends upon the [employer's] recruitment and selection procedures.”  6

Before summarizing these conclusions, it is important to emphasize the larger legal context of this discussion. Under Title VII and Executive Order 11246, as amended, employers and their recruiters are responsible for ensuring that all aspects of their recruitment and selection processes are nondiscriminatory. An employer's obligation to avoid discriminatory practices attaches regardless of the definition of “applicant.” Furthermore, employers must select employees without discriminating “against any individual * * * because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. 2000e-2(a)(1). Under Title VII, it is unlawful for employers to fail or refuse to hire on these bases; for employment agencies to fail or refuse to refer for employment or otherwise discriminate on these bases; and for labor organizations to exclude from membership, fail to refer, or to exclude from apprenticeship programs on these bases. 42 U.S.C. 2000e-2.

UGESP and the existing interpretive guidance were promulgated in the late 1970s, when employers and government agencies did not contemplate the extent to which electronic data processing technology would be used as a tool in the job market. Currently, these technologies, most prominently the Internet and the World Wide Web, 7 have been used extensively for recruitment  8 and job hunting. 9

Online recruitment enjoyed rapid expansion in the late 1990s. This period was characterized by the development of huge third-party databases of resumes and job listings; by 2003, one industry-leader reported having over 22.5 million resumes in its database. 10 In addition, companies as well as many Federal agencies of all sizes now offer career Web pages as part of their Web sites. 11

Human resource departments and recruiters using these online resources have been “overwhelmed” with resumes. 12 For example, it was reported that a major health care employer received 300,000 online resumes in one year. 13 A smaller Pennsylvania employer reported that it received 6,000 to 8,000 resumes a year before going online, but began receiving about 24,000 resumes a year since it went online. 14

Software systems that scan, sort and track electronic resumes and related communications are increasingly used to manage this bulk of information. Such systems are available through third-party Internet providers or on a customized basis. 15 Employers and recruiters also are developing new ways to use this technology for more focused recruitment, for example, using corporate Web sites and e-mail to learn more about Web site visitors' interests and experience and then sending targeted e-mails when vacancies arise. 16

The Internet and its related technologies also have proven to be a useful tool for people who are looking for jobs. Some studies show that the Internet is now the second most-popular way to look for technology and non-technology jobs, with personal networking placing first. 17

The Internet is conducive to casual exploration of employment opportunities and assessment of the job market. One study shows that seventy-two percent of people who visit corporate career Web sites are already employed. 18 Individuals who visit an employer's career Web site can often submit a resume or personal profile for multiple jobs simultaneously. 19 People also can explore employment opportunities by using services such as job “agents” ( i.e. , the person identifies the type of job in which he or she is interested and the “agent” e-mails the individual when a match is found); and “metasearches” ( i.e. , searches that extend beyond the job board to other Web sites). 20 “Passive” job seekers post resumes online and wait to see if recruiters or employers seek them out. Other individuals are discovered by recruiters researching online professional listings and organizational directories. For some positions, typically in retail or service environments, people may submit their information electronically through onsite computer kiosks provided by the employer.

Job seekers, like employers, complain about the overwhelming amount of data available on the Internet; some job seekers also complain about being unable to focus their job searches because some online listings provide only generalized descriptions of positions.

Internet-related technologies and applications that are widely used in recruitment and selection today include:

E-mail: Electronic mail allows for communication of large amounts of information to many sources with remarkable ease. Recruiters, employers, and job seekers use e-mail lists to share information about potential job matches. Recruiters send e-mails to lists of potential job seekers. These lists are obtained through various sources of information, such as trade or professional lists and employer Web site directories. Employers publish job announcements through e-mail to potential job seekers identified through similar means. Job seekers identify large lists of companies to receive electronic resumes through e-mail. E-mail allows all of these users to send the same information to one recipient or many, with little additional effort or cost.

Resume databases: These are databases of personal profiles, usually in resume format. Employers, professional recruiters, and other third parties maintain resume databases. Some third-party resume databases include millions of resumes, each of which remains active for a limited period of time. Database information can be searched using various criteria to match job seekers to potential jobs in which they may be interested.

Job Banks: The converse of the resume database are databases of jobs. Job seekers search these databases based on certain criteria to identify jobs for which they may have some level of interest. Job seekers may easily express interest in a large number of jobs with very little effort by using a job bank database. Third-party providers, such as America's Job Bank, may maintain job banks or companies may maintain their own job bank through their Web sites.

Electronic Scanning Technology: This software scans resumes and individual profiles contained in a database to identify individuals with certain credentials.

Applicant Tracking Systems/Applicant Service Providers: Applicant tracking systems began primarily to help alleviate employers' frustration with the large number of applications and resumes received in response to job postings. They also serve the wider purpose of allowing employers to collect and retrieve data on a large number of job seekers in an efficient manner. Whether in the form of custom-made software or an Internet service, the system receives and evaluates electronic applications and resumes on behalf of employers. For example, an employer could have the group of job seeker profiles from a third party provider's system searched, as well of those received on its own corporate Web site entered into one tracking system. The system would then pull a certain number of profiles that meet the employer-designated criteria (usually a particular skill set) and forward those profiles to the employer for consideration.

Applicant Screeners: Applicant screeners include vendors that focus on skill tests and other vendors that focus on how to evaluate general skills. Executive recruiting sites emphasize matching job seekers with jobs using information about the individual's skills, interests, and personality.

This document solicits public comment on the information collection requirements in the Additional Questions and Answers.

A: Yes. Title VII and Executive Order 11246, as amended, apply when covered employers use the Internet and related electronic data processing technologies for recruitment and selection. Title VII covers private and public employers, employment agencies, and labor organizations as these terms are defined at 42 U.S.C. 2000e; id. at 2000e-16 (Federal Government). Title VII covers discrimination on the bases of race, color, religion, sex, or national origin. Executive Order 11246, as amended, which covers Federal Government contractors, their subcontractors, and their vendors, also prohibits employment discrimination because of race, color, religion, sex, or national origin.

A: Yes. As a business practice, recruitment involves identifying and attracting potential recruits to apply for jobs. Under UGESP, “recruitment practices are not considered * * * to be selection procedures,”  21 and the UGESP requirements geared to monitoring selection procedures do not apply. Just as recruiters traditionally researched paper copies of professional and employer publications and listings to identify potential recruits, so recruiters now search huge bodies of information online—which include new resources such as personal Web sites and a variety of resume databases—for the same purpose. Online recruitment also involves organizing the search results into usable formats.

A: The term ‘applicant’ is discussed in the 1979 set of questions and answers promulgated by the agencies to clarify and provide a common interpretation of UGESP. 22 Question & Answer 15 of that publication states:

In order for an individual to be an applicant in the context of the Internet and related electronic data processing technologies, the following must have occurred:

(1) The employer has acted to fill a particular position;

(2) The individual has followed the employer's standard procedures for submitting applications; and

(3) The individual has indicated an interest in the particular position.

(1) The employer has acted to fill a particular position.

An example under the first prong is:

Example A: Individuals who register online for Customer Service Representative positions with an Internet and cable television service provider are asked to complete online personal profiles for the employer's resume database. The company acts to fill two vacancies at its Greater New York Service Center, and identifies 200 recruits from the database who have indicated that they are available to work in the New York area. One hundred of these people respond affirmatively and timely to the employer's inquiry about current interest in the particular New York vacancies. Even if the employer chooses to interview only 25 people for the position, all 100 are UGESP “applicants.”

(2) The individual has followed the employer's standard procedures for submitting applications.

If everyone who applies online must complete an online personal profile, only those individuals who do so can be UGESP applicants. If job seekers must use an electronic kiosk or contact a store manager to apply for a sales position, only those who do so can be UGESP applicants. If an employer e-mails online job seekers to ask if they are currently interested in a particular vacancy, only those who meet the employer's deadline can be UGESP applicants. These procedures and directions must be nondiscriminatory because recruitment and the application processes are subject to Title VII and Executive Order 11246.

(3) The individual has indicated an interest in the particular position.

The core of being an “applicant” is asking to be hired to do a particular job for a specific employer. An individual can only accurately assess her interest in an employment opportunity of which she is aware.

With respect to Internet recruiting, this means that people who post resumes in third party resume banks or on personal Web sites are not UGESP “applicants” for all employers who search those sites. By posting a resume, the individual is advertising her credentials to the world and indicating a willingness to consider applying for new positions that may be brought to her attention. The individual is not indicating an interest in a particular position with a specific employer. If an employer contacts this individual about a particular position after finding her resume or personal profile online, and the individual indicates an interest in that position, then the individual becomes a UGESP “applicant,” if she also meets the second prong of the test set forth above. Similarly, if an employer contacts an individual about a particular position in response to an unsolicited resume submitted online, and the individual indicates an interest in that position, then the individual becomes a UGESP “applicant” if she also meets the second prong of the test.

Furthermore, even if the individual expresses an interest in a whole category of positions in response to an employer's solicitation—for example, marketing opportunities—the individual is not an applicant but is identifying the kinds of positions in which she may be interested. She is not indicating an interest in a particular position with a specific employer. It is only with respect to a particular position that an individual can assess her interest and choose whether or not to apply.

If an individual submits a resume or personal profile repeatedly to the same employer (for example, by adding numerous online job listings to her “shopping cart”) or simply sends resumes (for example, by using automated online tools that identify job listings and submit resumes), the individual again is identifying the kinds of positions in which she is interested and is not automatically an applicant.

In certain circumstances, however, actions by a job seeker in response to an employer-hosted job listing will display hallmarks of an actual, individual assessment of interest in a particular position that the employer is acting to fill. For example, a job seeker's interest in a particular position becomes evident when the job seeker complies with an employer's procedural requirements that are unique to that position. Thus, completion and submission of an electronic application form, which form is unique for a particular position, indicates that the job seeker has a specific interest in that particular position.

Example B: Game Park is hiring park rangers, who perform specified duties and receive a starting salary within a particular range. Game Park posts an announcement on its Web page stating that it is accepting applications for its next park ranger training class, which starts in six months, and that all people who complete the required forms within one month will be evaluated for entrance into the class. Job seekers are directed to complete a detailed questionnaire asking about their experience in wildlife management, forest fire prevention, firearm safety and first aid. This profile is only suitable for the position of park ranger; it cannot be used for other Game Park positions. When these profiles are compiled into a database, all of the job seekers will be “applicants” if they satisfy the second prong of the above-referenced test.

A: Yes. All search criteria used are subject to disparate impact analysis. Disparate impact analysis can be based on Census or workforce data. If a disparate impact is shown, the employer must demonstrate that its criteria are job-related and consistent with business necessity for the job in question. 42 U.S.C. 2000e-2(k).

Example C: An employer has two large printing plants. The company's employment Web page encourages individuals who visit to register to be considered as printers by submitting personal profiles online. Some basic identifying information is required, and one question asks for total years of printing experience.

The employer authorizes the hiring of three new printers at one of the plants. To identify job seekers, Human Resources turns to several resources including its internal database. Even before it identifies those who properly followed the employer's online procedures and who are actually interested in these positions at this time, the employer searches the database to identify job seekers with two years printing experience. The search identifies 120 individuals, of whom only 50 express an interest in the positions and followed all the application procedures. These 50 people are UGESP applicants.

However, the impact of the employer's screen for two years' printing experience can be analyzed using workforce and Census data. For example, the experience requirement could be assessed based on relevant labor force statistics. If a disparate impact on a protected group were shown, then the employer would have to show that two years of experience was job-related and consistent with business necessity for its printing positions.

A: Yes. Online tests, including tests of specific or general skills, are selection procedures rather than recruitment under UGESP because the test results are used as “a basis for making employment decisions.”  24 Employers and recruiters who use such tests should maintain records or other information “which will disclose the impact which its tests * * * have upon employment opportunities of persons by identifiable race, sex or ethnic group.”  25 If employment tests have a disparate impact, they are lawful only if they are “job-related for the position in question and consistent with business necessity.” 42 U.S.C. 2000e-2(k)(1)(A)(i).

The UGESP agencies invite comments about these Additional Questions and Answers from all interested parties, as well as comments enabling the agencies to:

(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agencies, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agencies' estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. , permitting electronic submission of responses.

Collection Title: Recordkeeping Requirements of the Uniform Guidelines on Employee Selection Procedures, 29 CFR part 1607, 41 CFR part 60-3, 28 CFR part 50, 5 CFR part 300.

OMB Number: 3046-0017.

Type of Respondent: Businesses or other institutions; Federal Government; State or local governments and farms.

North American Industry Classification System (NAICS) Code: Multiple.

Standard Industrial Classification Code (SIC): Multiple.

Description of Affected Public: Any employer, Government contractor, labor organization, or employment agency covered by the Federal equal employment opportunity laws.

Respondents: 865,962 firms are included in the affected public, according to U.S. Census statistics.

Responses: 865,962.

Reporting Hours: 2,548,573.97.

Number of Forms: None.

Form Number: None.

Frequency of Report: None.

Abstract: The recordkeeping issues addressed by UGESP are used by respondents to assure that they are complying with Title VII and Executive Order 11246; by the Federal agencies that enforce Title VII and/or Executive Order 11246 to investigate, conciliate and litigate charges of employment discrimination; and by complainants to establish violations of Federal equal employment opportunity laws.

Burden Statement: There are no reporting requirements associated with UGESP. The only paperwork burden derives from the recordkeeping. With respect to paperwork burden, the Additional Questions and Answers would present a solution to problems employers currently face in applying the Guidelines on Employee Selection Procedures in the context of the Internet and related technologies. Therefore, the Additional Questions and Answers would not involve an increase in paperwork burdens associated with attempts to apply existing guidelines to the context of the Internet and related technologies.

Only employers covered under Title VII and Executive Order 11246 are subject to UGESP. For the purpose of burden calculation, employers with 15 or more employees are counted. Based on examination of the latest available U.S. Census Bureau firm data, the number of firms in this category is approximately 865,962. According to figures based on statistics from the U.S. Census Bureau, the total number of employees employed by firms in this category is 117,957,331. Assuming one record per employee, this results in 117,957,331 records. Additionally, statistics from the Bureau of Labor Statistics indicate that the number of individuals, both employed and unemployed, actively seeking employment from all employers, total 14 million. Assuming that each of these individuals submits on average five applications, this results in 70 million potential records from a recordkeeping perspective. Therefore, the total number of records reflecting employees employed by firms and all job seekers is 187,957,331.

From the private employer survey the Commission conducts, it determined that 80 percent of the private employers file their employment reports electronically. From this same survey the Commission also learned that when records are computerized, the burden hours for reporting, and thus for recordkeeping, are about one-fifth of the burden hours associated with non-computerized records. Further, the Additional Questions and Answers apply to the Internet and related electronic data processing technologies, which involves computerized recordkeeping.

The Additional Questions and Answers would clarify how employers should address applicant recordkeeping in the context of the Internet and related technologies. In the absence of such clarification, employers would be faced with significant, additional paperwork burdens based on the rapid expansion of the Internet and related technologies for recruiting. The Commission is unaware of any systematic data to accurately quantify the burdens associated with how employers were attempting to address applicant recordkeeping in the Internet context prior to this clarification. The Commission will be in a better position to assess these issues after the additional Questions and Answers have been implemented. At this time, the Commission assumes that, with this clarification, the basis for the estimate of the cost per record has not changed since the initial burden calculations in 1979. Inflation adjustments would derive a current cost per record (manual recordkeeping) of $0.56 and current cost per record (computerized recordkeeping) of $0.11.

The number of burden hours can be obtained by dividing the total cost of recordkeeping by the hourly cost of labor needed to collect and compile such data.

The current cost per hour of personnel for UGESP recordkeeping is $14.75/hr (hourly rate for personnel clerks from BLS compensation survey).

Computerized recordkeepers = (.80) × (187,957,331) × ($0.11) = $16,540,245.12

Manual recordkeepers = (.20) × (187,957,331) × ($0.56) = $21,051,221.07

Total recordkeeping cost = $37,591,466.19

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The request to revise the operating schedule for this temporary final rule required extensive coordination with known affected marine entities, Wisconsin DOT, and the City of Sturgeon Bay, WI. The final temporary schedule was not finalized in time to publish a NPRM and still have the work start at the best possible time for all affected parties.

Wisconsin DOT requested a temporary change to the operating regulations for the Bayview bridge, mile 0.3 over Sturgeon Bay Ship Canal in Sturgeon Bay, WI, to perform deck maintenance work. The Bayview bridge navigation span provides a vertical clearance of 42 feet above Mean Low Water in the closed to navigation position. The waterway carries commercial, recreational, and public vessel traffic. The bridge is normally required to open on signal for vessels year-round under the general provisions of 33 CFR 117.5. In order to perform the necessary deck replacement work, Wisconsin DOT requested that the drawbridge open on the hour, every three hours, Monday through Friday, between the hours of 6 a.m. and 6 p.m. to minimize disruptions to the contractor. This schedule was not considered reasonable by the Coast Guard and was revised so the bridge would open every hour, on the hour, between 6 a.m. and 6 p.m., Monday through Friday, for recreational vessels. Commercial and public vessels will be requested to provide at least 2-hours advance notice prior to passing during these work hours, and should be passed without delay. The request from Wisconsin DOT also included two separate 3-day periods between April 15 and June 15, 2004, where the bridge would not be required to open for any vessels for concrete pouring and curing. The dates of these closure periods can not, and have not, been identified due to the nature of the work, but Wisconsin DOT is required to provide those dates to the Coast Guard 10-14 days in advance of anticipated closure periods. The Coast Guard will publish a temporary deviation covering those dates when they have been finalized.

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 temporary drawbridge schedule still provides for the passage of vessels during work hours. The unspecified closure periods, which are necessary for some of the repair work, will be published as early as possible in the Ninth Coast Guard District Local and/or Broadcast Notice to Mariners and prior to the work beginning. These conditions and schedules have been approved by known affected marine entities.

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. Passage through the drawbridge will still be available except during the closure periods that have not been scheduled. During the closure periods all entities will be equally affected.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. None were identified because passage will still be provided for except during the required closure periods.

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

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

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

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

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. 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.

The Mississippi Department of Transportation has requested a temporary deviation in order to align the speed reducer and to replace some of the old welded flooring plates with new steel channel sections on the U.S. 90 Bascule Span Highway Bridge across Back Bay of Biloxi, mile 0.0 at Ocean Springs, Harrison County, Mississippi. The replacement of the old flooring plates and alignment of the speed reducer is necessary for the continued safe operation of the draw span of the bridge. This temporary deviation will allow the bridge to remain in the closed-to-navigation position continuously from 6 a.m. on Monday, March 8, 2004 through 6 p.m. on Friday, March 12, 2004.

Presently the bridge opens on signal except that from 6:30 a.m. to 7:05 a.m., 7:20 a.m. to 8:05 a.m., 4 p.m. to 4:45 p.m. and 4:55 p.m. to 5:30 p.m., Monday through Friday except holidays, the draw need not open for the passage of vessels.

The bascule span bridge has a vertical clearance of 14 feet above mean high water, elevation 1.75 feet Mean Sea Level in the closed-to-navigation position. Navigation at the site of the bridge consists mainly of commercial fishing vessels, tugs with barges in tow and various sizes and types of recreational pleasure craft including sailing vessels. Bridge tender logs show that in February, 2003 the bridge was opened 120 times to pass navigation, an average of 4 times per day. In March, 2003 it was opened 164 times to pass navigation, an average of 5.4 times per day. 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.

On March 18, 2003, we published a temporary deviation (TD) entitled Drawbridge Operation Regulations; Commercial Boulevard Bridge (SR 870), Atlantic Intracoastal Waterway, mile 1059.0, Lauderdale-by-the-Sea, Broward County, Florida in the Federal Register (67 FR 11919). We received 38 letters commenting on the temporary deviation. No public meeting was requested, and none was held. On February 28, 2003, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations; Commercial Boulevard Bridge (SR 870), Atlantic Intracoastal Waterway, mile 1059.0, Lauderdale-by-the-Sea, Broward County, Florida in the Federal Register (68 FR 9609). We received three letters commenting on the proposed rule. No public meeting was requested, and none was held.

The City of Fort Lauderdale requested a change in regulations governing the operation of the Commercial Boulevard Bridge (SR 870) to ease vehicular traffic congestion approaching the bridge and in the surrounding beachside intersections and roadways. Commercial Boulevard is congested in this area due to an abundance of condominiums on the beach and an increase of non-seasonal tourism. The existing regulations for this bridge are published in 33 CFR 117.261(ee) and require the bridge to open on signal, except that, from November 1 through May 15, from 8 a.m. to 6 p.m., Monday through Friday, the draw need only open on the hour, quarter-hour, half-hour, and three-quarter hour, and from 8 a.m. to 6 p.m. on Saturday, Sunday, and Federal holidays, the draw need open only on the hour, twenty minutes after the hour, and forty minutes after the hour. The bridge has a vertical clearance of 15 feet and a horizontal clearance of 90 feet. This rule will improve vehicular traffic movement by placing the bridge on a twenty minute schedule from 7 a.m. to 6 p.m., each day of the week.

We received thirty-eight comments on the temporary deviation; thirty-one were in favor of the twenty minute schedule, and seven comments requested that the schedule be changed to an hour and half-hour schedule. We also received three comments on the notice of proposed rulemaking, which were all in favor of the twenty minute schedule.

We have carefully considered the comments and decided not to change the proposed rule. A thirty minute schedule is not practicable as vessels would experience a greater delay in traversing the waterway, especially due to other bridge operating schedules in the area.

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 Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary, because the rule provides for regularly scheduled openings and only differs from the current operating schedule by several minutes per opening per hour.

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, because the regulation will only affect the bridge's current operation by several minutes per opening per hour and continue to provide for navigational needs.

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

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 would not create an environmental risk to health or risk to safety that might disproportionately affect children.

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

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order, because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. 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 (32)(e), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

Throughout this document, “we”, “us” and “our” refer to U.S. EPA.

On September 29, 2003 (68 FR 55920), EPA published a notice of proposed rulemaking for the State of Arizona. The notice proposed approval of revisions to the SIP for Arizona's CBG program. These revisions to the Arizona CBG program have been adopted by the Arizona Department of Environmental Quality (ADEQ) and the State legislature since EPA approval of the interim CBG program in 1998.

ADEQ submitted the changes to its CBG program to EPA for approval into the SIP in five separate SIP submittals: SIP Revision, Arizona Cleaner Burning Gasoline Permanent Rules—Maricopa County Ozone Nonattainment Area, February 1999 (“CBG Permanent Rules”), State Implementation Plan Revision for the Cleaner Burning Gasoline Program in the Maricopa County Ozone Nonattainment Area, March 2001 (“Summertime Minimum Oxygen Content Removal”), Arizona Cleaner Burning Gasoline Rule to Revise the State Implementation Plan for the Maricopa County Carbon Monoxide, Ozone, and PM10 Nonattainment Areas, August 2001 (“CBG Wintertime Rules”), Supplement to Cleaner Burning Gasoline Program State Implementation Plan Revision, September 2001 (“Technical Supplement”) and Supplement to Cleaner Burning Gasoline Program State Implementation Plan Revision, January 2004 (“Statutory Supplement”). 1 The key changes from the interim CBG program approved into the SIP in 1998 are described below.

Since 1997, ADEQ has adopted several amendments to its CBG rule in order to make it a permanent rule and to reflect changes made by the State legislature to the fuel provisions of the Arizona Revised Statutes (ARS). Most of these changes involve the removal of SIP-approved requirements and options. The “CBG Permanent Rules” include the following key changes from the interim rules currently approved in the SIP:

• The standards for Type 3 gasoline (modeled after Federal Phase 1 reformulated gasoline [RFG]), which was only available as an option in 1998, have been removed along with references to this fuel option. 2

• Summertime minimum oxygen content standards for Type 1 gasoline (modeled after Federal Phase 2 RFG) have been removed by specifying a 0.0% minimum oxygen content for April 1 through November 1 in Table 1 of the rule. 3

• The option of supplying Type 1 fuel during the winter fuel season (November 2 through March 31) has been removed by including wintertime fuel specifications that limit suppliers to Type 2 gasoline (modeled after California Air Resources Board (CARB) Phase 2) beginning in 2000. With this change, requirements for wintertime NO X surveys have also been removed because Type 2 gasoline does not include a NO X performance standard.

• The option to provide non-ethanol oxygenated fuel during the winter has been removed by amending the wintertime oxygen content provisions to require fuel containing 10% ethanol, unless the use of a non-ethanol oxygenate is approved by the Director of ADEQ. 4

• NO X performance standards for Type 1 gasoline and summer survey requirements have been amended to conform with changes made by EPA to the Federal RFG regulations in December 1997 (62 FR 68196). 5

• The area subject to the program has been redefined to include all of Maricopa County as well as some western portions of Pinal County and a small part of southern Yavapai County. 6

A more complete description of Arizona's submittals and the rationale for our approval are presented in the notice of proposed rulemaking (68 FR 55920, Sept. 29, 2003), and associated Technical Support Document (available at www.epa.gov/region09/air/phoenixcbg/ ).

We received two comment letters on the September 29, 2003, proposal. The first, from the Western States Petroleum Association (WSPA), strongly supported the proposed SIP approval. The second, from the Arizona Center for Law in the Public Interest (ACLPI), raised concerns regarding the impact on ambient ozone concentrations. ACLPI's comments are addressed below.

In addition to these comments, we received e-mails submitted prior to publication of the proposal in the Federal Register , apparently reacting to news stories about the CBG program and MTBE. While these e-mails do not appear to address our proposed action and therefore do not appear to be intended as comments, we discuss them below to address potential confusion over the nature of today's action.

Comment: ACLPI suggests EPA's finding under CAA section 110(l)—that the CBG program revisions will not interfere with attainment and reasonable further progress—is not sufficiently definitive. Specifically, ACLPI notes that, “EPA acknowledges that this removal [of the summertime minimum oxygen content requirement] ‘could result in increases in VOC and CO emissions and a decrease in NO X emissions' all of which would have the effect of increasing ozone.” ACLPI argues that the basis for EPA's finding is the unsupported assumption that oxygen content will not affect emissions from newer vehicles and therefore the projected emissions changes are “relatively small” and are more than offset by Phoenix's general downward trend in ambient ozone concentrations from 1996 to 2002.

Response: We concluded in our proposal that the removal of the two percent minimum oxygen requirement for summertime CBG is not a relaxation of the SIP because the SIP-approved regulations already allowed the use of non-oxygenated CBG (CBG Type 2 produced under the averaging option) during the summer control period. Thus, the fuel options allowed under the revised State rules will be no less stringent than those allowed under the current SIP. This side-by-side comparison of regulatory requirements is appropriate for purposes of satisfying CAA section 110(l) in areas meeting the NAAQS. See Hall v. EPA, 273 F.3d 1146, 1160 n. 11 (9th Cir. 2001) (noting “no relaxation” test would “clearly be appropriate in areas that achieved attainment under preexisting rules”).

We nonetheless went further in working with ADEQ to assess the changes in emissions and ozone concentrations likely to occur as a result of this change to the CBG program. ACLPI notes our preliminary conclusion that small emissions increases might not be a concern given the declining ozone concentrations in the area. As noted above, this preliminary assessment was not the basis for our 110(l) determination. Nor was it the end of our analysis.

To confirm this preliminary conclusion we conducted detailed modeling to predict not only how emissions might change but what these emission changes would mean for ozone concentrations. First, we looked at how historical ozone concentrations would have been affected by the potential fuel changes. Our modeling showed that the new fuel, if used in place of the baseline fuel, would have resulted in a four percent decrease in the ozone design value from the 1999 baseline year. Second, to evaluate future ozone concentrations, we conducted a qualitative analysis to predict likely trends in emissions and concentrations. We explained that with newer vehicles, the effect of gasoline oxygen content on vehicle emissions is likely to diminish, and any small emissions changes will be overwhelmed by emission reductions achieved by new engine controls. Between these two findings, we concluded that the fuel provided to the area will be better for ozone concentrations than the fuel used in the area at the time of attainment and that emissions from vehicles will continue to decline into the future.

ACLPI does not acknowledge the analysis provided. Instead, ACLPI points to our note that there is not enough data to conclude that gasoline oxygen content will affect emissions from the newest generation of vehicles. ACLPI implies that we therefore do not know how fuel changes will affect emissions in the future.

While our models for estimating vehicle emissions do not yet include data for the newest generation of vehicles, we know how gasoline oxygen content affects older vehicles and we know that as the overall fleet of vehicles changes, the effect of oxygen content diminishes. 7 In addition, we know that as the fleet changes to include more newer vehicles, engine technologies will result in significant emission reductions that overwhelm this diminishing effect from gasoline oxygen content. Thus, even though we cannot model the specific effect of oxygen content on newer vehicles, it is reasonable to conclude that emissions will continue to improve with changes to the fleet.

Comment. ACLPI also claims that it is anticipated that Phoenix will violate the new 8-hour ozone standard and therefore objects to EPA's failure to analyze the potential impact on 8-hour ozone concentrations.

Response. While we did not conduct a separate analysis for 8-hour ozone concentrations, we did explain that the analysis described above should ensure that the revisions to the fuel program will not interfere with 8-hour ozone attainment. Modeling showed that the new fuels likely to be provided to the area will result in a decrease in peak ozone concentrations as compared to the fuel provided in 1999. In addition, motor vehicle emissions will continue to decline as improvements in engine technologies will overwhelm the diminishing effect of gasoline oxygen content on these emissions.

We received four e-mails, all submitted before the September 29 publication of the proposed action—one on September 8, one on September 15 and two from the same person on September 23. The first two of these e-mails encouraged ADEQ to move away from using MTBE as an oxygenate. The final two raised questions about how emission reductions would be achieved if the area no longer had a CBG program with MTBE.

These e-mails suggest some confusion regarding the nature of the action being taken by ADEQ and EPA. We therefore felt it important to reiterate that our action does not ban MTBE from Arizona summertime gasoline. The revisions to the CBG program remove the minimum summertime oxygen content requirement, but do not ban the use of MTBE or any other oxygenate during the summer. Our approval of these revisions likewise, does not preclude the use of MTBE.

With this in mind, we evaluated the fuel formulations refiners are likely to supply the area. We concluded approval of these CBG program revisions may result in a mixture of MTBE-oxygenated CBG and non-oxygenated CBG ( i.e. , ethanol-oxygenated fuel appears unlikely). The cheapest fuel to produce will likely be non-oxygenated Type 1 CBG. We used these likely fuels to evaluate air quality impacts and concluded these changes will not adversely affect air quality in the area.

In today's action, we are finding that the Arizona CBG program implemented in the Maricopa County area meets CAA and EPA requirements for a state fuels program. In addition, under CAA section 110(l), we are finding that the SIP revisions submitted by ADEQ do not interfere with any applicable requirements for CO, ozone, and PM-10 attainment and reasonable further progress (RFP) or any other requirements of the CAA applicable to the Phoenix area. The basis for these findings is discussed in the proposal for today's action. See 68 FR 55920.

We have evaluated the submitted SIP revisions and have determined that they are consistent with the CAA and EPA regulations. Therefore, we are approving the Arizona CBG program into the Arizona SIP under section 110(k)(3) of the CAA as meeting the requirements of section 110(a) and part D to address ozone, CO and PM-10 nonattainment in the Maricopa County area.

Specifically, we are approving the following elements of the CBG program: Arizona Administrative Code (AAC) R20-2-701, R20-2-716, R20-2-750 through 762, and title 20, chap. 2, art. 7, Tables 1 and 2 (March 31, 2001); and Arizona Revised Statutes (ARS) §§ 49-541(1)(a), (b), and (c) (as codified on August 9, 2001), 41-2124 (as codified on April 28, 2000), 41-2123 (as codified on August 6, 1999), 41-2113(B)(4) (as codified on August 21, 1998), 41-2115 (as codified on July 18, 2000), and 41-2066(A)(2) (as codified on April 20, 2001).

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 3, 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 CAA section 307(b)(2).)

Sections 111(d) and 129 of the Act requires states to submit plans to control certain pollutants (designated pollutants) at existing solid waste combustor facilities (designated facilities) whenever standards of performance have been established under section 111(b) for new sources of the same type, and EPA has established emission guidelines (EG) for such existing sources. A designated pollutant is any pollutant for which no air quality criteria have been issued, and which is not included on a list published under section 108(a) or section 112(b)(1)(A) of the CAA, but emissions of which are subject to a standard of performance for new stationary sources. However, section 129 of the Act, also requires EPA to promulgate EG for MWC units that emit a mixture of air pollutants. These pollutants include organics ( i.e., dioxins/furans), carbon monoxide, metals (cadmium, lead, mercury), acid gases (hydrogen chloride, sulfur dioxide, and nitrogen oxides) and particulate matter (including opacity).

On December 6, 2000 (65 FR 76350 and 76378), EPA promulgated small municipal waste combustion unit new source performance standards, 40 CFR part 60, subpart AAAA, and emission guidelines (EG), subpart BBBB, respectively. The designated facility to which the EG apply is each existing small MWC unit that has a design combustion capacity of 35 to 250 tons per day of municipal solid waste (MSW) and commenced construction on or before August 30, 1999.

Subpart B of 40 CFR part 60 establishes procedures to be followed and requirements to be met in the development and submission of state plans for controlling designated pollutants. Also, 40 CFR part 62 provides the procedural framework for the submission of these plans. When designated facilities are located in a state, the state must then develop and submit a plan for the control of the designated pollutant. However, 40 CFR 60.23(b) and 62.06 provide that if there are no existing sources of the designated pollutant in the state, the state may submit a letter of certification to that effect ( i.e., negative declaration) in lieu of a plan. The negative declaration exempts the state from the requirements of subpart B that require the submittal of a 111(d)/129 plan.

The Harrisburg Materials, Energy, Recycling and Resource Recovery Facility was the only known designated facility (based on the derated capacity of its two combustion units) subject to the EG. However, on June 18, 2003, the City of Harrisburg permanently ceased operation of its two small MWC units. Permanent closure of the units was confirmed by PADEP staff during inspections of the facility on August 4 and 11, 2003.

The PADEP has determined that there are no designated facilities, subject to the small MWC unit EG requirements, in its air pollution control jurisdiction. Accordingly, the PADEP Bureau of Air Quality Director has submitted to EPA a negative declaration letter certifying this fact. The submittal date of the letter is October 30, 2003.

Therefore, EPA is amending part 62 to reflect the receipt of the negative declaration letter from the PADEP. Amendments are being made to 40 CFR part 62, subpart NN (Pennsylvania). These amendments exclude the local Pennsylvania air pollution control jurisdictions that submitted their own approvable negative declarations—Allegheny and Philadelphia (City) counties.

After publication of this Federal Register notice, if a small MWC unit is later found within jurisdiction of the PADEP, then that unit will become subject to the requirements of the Federal small MWC 111(d)/129 plan, as promulgated on January 31, 2003 (68 FR 5144).

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the section 111(d)/129 negative declaration if adverse comments are filed. This rule will be effective on May 3, 2004 without further notice unless EPA receives adverse comment by April 5, 2004. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number PA190-7008 in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD-ROM you submit, and in any cover letter accompanying the disk or CD-ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. E-mail. Comments may be sent by electronic mail (e-mail) to wilkie.walter@epa.gov, attention PA190-7008. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

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

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

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

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

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

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

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

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

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

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

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

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

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

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

In reviewing section 111(d)/129 negative declarations, 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 section 111(d)/129 negative declaration submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a section 111(d)/129 negative declaration, to use VCS in place of a section 111(d)/129 negative declaration submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 3, 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 approving the Pennsylvania negative declaration for small MWC units may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

On January 27, 1994, the Wisconsin Department of Natural Resources (WDNR) submitted to the Administrator for approval its proposed title V program. EPA granted interim approval of Wisconsin's program on April 5, 1995. WDNR submitted corrections on March 28, 2001, September 5, 2001, and September 17, 2001 to address the issues identified in the interim approval. EPA approved the corrections submitted by WDNR, finding that they adequately addressed the conditions of the April 1995 interim approval. EPA gave Wisconsin final full approval of its title V program effective on November 30, 2001.

In addition to submitting corrections to EPA in 2001 in accordance with EPA's interim approval, Wisconsin submitted certain other proposed revisions to its title V program. One of Wisconsin's proposed program revisions concerns its fee schedule. Although EPA has not taken action on this proposed program revision, Wisconsin has nonetheless implemented the change, which includes elimination of the inflation adjustment factor from its title V fee schedule. In a December 6, 2002 letter, EPA informed WDNR that EPA was reviewing the permit fee component of Wisconsin's title V permit program, and requested that Wisconsin provide information regarding its fees. Specifically, EPA requested that WDNR submit a description of the State's title V fee structure, a demonstration that Wisconsin's fee schedule resulted in the collection of revenues sufficient to cover the title V permit program costs, a description of the title V permit program activities and costs, and a description of the activities funded by part 70 fees, including personnel. Wisconsin provided some, but not all, of the requested information in a series of three written submissions to EPA dated March 3, 2003, April 18, 2003, and June 5, 2003.

On or about December 16, 2002, Sierra Club and a coalition of Wisconsin environmental groups submitted to EPA their “Petition Seeking The U.S. EPA To Protect Wisconsin Families From Air Pollution By Issuing The State A Notice Of Deficiency For Failing To Adequately Administer Its Title V Permit Program” (Sierra Club Petition). The Sierra Club Petition raised fee issues similar to those identified by EPA in its December 6, 2002 letter to WDNR, including, for example, WDNR's failure to charge title V fees sufficient to cover permit program costs, and WDNR's illegal use of title V monies to fund portions of non-title V program and staff. The Sierra Club Petition also raised WDNR's failure to act timely on applications for title V permits.

EPA has enforcement discretion under the Act to determine whether to issue a NOD under section 502(i) of the Act. See Public Citizen, Inc. v. EPA, 343 F.3d 449, 463-65 (5th Cir. 2003). In this case, EPA has fully examined the facts and circumstances associated with Wisconsin's title V operating permit program and based on the totality of those facts and circumstances determined that issuance of a NOD is appropriate. The deficiencies associated with Wisconsin's title V permit program are described below.

EPA is publishing this NOD to notify the State of Wisconsin and the public that, based on the totality of facts and circumstances, EPA has found deficiencies in the Wisconsin title V operating permit program. Publication of this document in the Federal Register satisfies 40 CFR 70.10(b)(1), which provides that EPA shall publish in the Federal Register a notice of any determination that a state's title V permitting program no longer complies with the requirements of 40 CFR part 70 and the Act. The deficiencies being noticed today are described more fully below, but include Wisconsin's failure to demonstrate that it requires owners or operators of part 70 sources to pay fees that are sufficient to cover the costs of the State's title V permit program; Wisconsin's failure to ensure that its title V program funds are used solely for title V permit program costs; Wisconsin's failure to issue initial title V permits to all of its part 70 sources within the time allowed by the Act; and Wisconsin's failure to implement properly several aspects of its title V permit program, including its issuance of title V permits that contain terms that do not have certain underlying applicable requirements, that do not contain all applicable requirements, and that do not make certain requirements federally enforceable.

Pursuant to 42 U.S.C. 7661a(b)(3) and 40 CFR 70.9(a), a state title V program must require that the owners or operators of part 70 sources pay annual fees, or the equivalent over some other period, that are sufficient to cover the permit program costs, and the State must ensure that any fee collected be used solely for title V permit program costs. Although 42 U.S.C. 7661a(b)(3) and 40 CFR 70.9(b) require that a state's title V permit program include a fee schedule that results in the collection of sufficient fees to cover all title V permit program costs, states have flexibility in developing the components of that fee schedule. See 40 CFR 70.9(b)(3).

In one of its 2001 title V proposed program revisions, Wisconsin disclosed that it had removed the inflation adjustment factor from its title V fee schedule. Although EPA has not yet taken action on this proposed program revision, Wisconsin has implemented the change. Based on this information and consistent with 40 CFR 70.9(b)(5), EPA in December 2002 requested from Wisconsin a detailed fee demonstration, showing that the State's collection of fees is sufficient to cover the title V permit program costs. As discussed more fully below, the information subsequently provided by Wisconsin in response to EPA's request does not demonstrate that the revised fee schedule results in the collection of fees in an amount sufficient to cover its actual permit program costs, as required by 42 U.S.C. 7661a(b)(3) and 40 CFR 70.9(b)(1).

In response to EPA's December 2002 request, WDNR specifically declined to provide information regarding the actual costs of implementing its title V program and, thus, Wisconsin has not shown that the fees it is collecting are adequate to cover its actual title V permit program costs. WDNR's response does assert, however, that the State is collecting the presumptive minimum fee amount as described at 40 CFR 70.9(b)(2). As explained further below, EPA disagrees with Wisconsin's characterization that it is meeting the presumptive minimum fee requirements of 40 CFR 70.9(b)(2), and finds that Wisconsin has failed to demonstrate that its title V fees are sufficient to cover actual permit program costs.

EPA will presume that a state's fee schedule satisfies the requirements of 40 CFR 70.9(b)(1), if the fee schedule meets the requirements of 40 CFR 70.9(b)(2) (the presumptive minimum fee requirements). 40 CFR 70.9(b)(2) provides, in pertinent part, that a fee schedule is presumed to be sufficient to cover title V permit program costs if it would result in the collection and retention of an amount not less than $25 per ton, adjusted for inflation, times the total tons of actual emissions of each regulated pollutant emitted from each part 70 source. The regulations allow the state to exclude from this calculation the amount per source that exceeds 4,000 tons per year. 40 CFR 70.9(b)(2)(ii). EPA finds that WDNR has not demonstrated that it is using a fee schedule that results in the collection of the presumptive minimum fee amount, as required by 40 CFR 70.9(b)(2).

Specifically, the fee revenue information Wisconsin provided on March 3, 2003, shows that the State is not distinguishing between fees collected from sources operating under different Clean Air Act programs. The information provided shows that Wisconsin does not account separately for or maintain separate accounts for fees collected under title V and other non-title V fee-based programs. Thus, the State cannot provide an accurate picture of its title V fee collections. By including non-title V fee revenues in its calculation of “Emission Fee Revenue 1992-2001,” WDNR has overstated the amount of fees it is collecting as part of the title V permit program. The degree of the overstatement cannot be determined from the information provided by Wisconsin. Accordingly, Wisconsin has not demonstrated that it is collecting an amount equal to or in excess of the presumptive minimum fee, as required by 40 CFR 70.9(b)(2).

As explained above, 40 CFR 70.9(b)(2) sets forth specific requirements for calculating the presumptive minimum amount of fees that must be collected to cover title V permit program costs. One of those requirements is that states must adjust annually for inflation the $25 figure used in the presumptive fee calculation. 40 CFR 70.9(b)(2)(i) and (b)(2)(iv).

Wisconsin's fee schedule, as currently being implemented by the state, does not allow for adjustments to reflect inflation; it relies instead on billing for emissions in excess of the 4,000 ton per year amount that states may exclude from the presumptive fee calculation. See 40 CFR 70.9(b)(2)(ii)(B). In particular, Wisconsin's fee schedule requires the state to bill sources for each 1,000 tons of emissions beyond the 4,000 ton per year amount provided by 40 CFR 70.9(b)(2)(ii)(B). Wisconsin claims, without appropriate record support, that, by billing for emissions in excess of the tons to be billed under the presumptive fee schedule, it is collecting more revenue than it would by merely adjusting for inflation.

Wisconsin's original fee structure approved in 1995 followed the presumptive minimum fee schedule formula described in 40 CFR 70.9(b)(2). However, the Wisconsin legislature removed the provision for annual adjustments for inflation for fees billed after 2002. The State bills for emission fees in arrears; its fee bills are for the prior year's emissions. The effect of freezing the fees in 2001 is that the amounts billed in 2001 for the year 2000 also are calculated at the rate established in 2001. Wisconsin has not adjusted its emission fee rates to reflect the effects of inflation since 2000. By effectively freezing its fees at the 2000 level, Wisconsin has departed from the presumptive fee formula set forth in 40 CFR 70.9(b)(2). EPA cannot evaluate Wisconsin's claim that it is still collecting an amount greater than the amount it would collect using the presumptive minimum rate formula based on the information provided by the State, because Wisconsin has provided no actual fee billing or collection information for years after 2001.

Because Wisconsin has not demonstrated that it collects fees that cover the actual permit program costs, the State's program does not comply with the requirements of the Act and 40 CFR 70.9.

40 CFR 70.10(b) provides that states must conduct approved state title V programs in accordance with the requirements of 40 CFR part 70 and any agreement between the state and EPA concerning operation of the program. Information provided to EPA by Wisconsin in its 2001 title V proposed program revision submissions and its responses to EPA's December 6, 2002 fee demonstration request disclose significant internal fee management deficiencies that demonstrate that WDNR is not conducting its title V program in accordance with the requirements of Act and 40 CFR part 70 and, therefore, is not adequately administering its title V program.

Section 502(b) of the Act, 42 U.S.C. 7661a(b), and 40 CFR 70.9(a) provide that state title V programs must ensure that all title V fees are used solely for permit program costs. The information provided by WDNR in response to EPA's December 6, 2002 fee demonstration request discloses that Wisconsin is not using all title V fees for permit program costs.

Wisconsin is diverting title V fees to complete non-title V work. According to information submitted to EPA by Wisconsin, only 66 of 99 title V funded employees attributed activities on their timesheets in fiscal year 2002 to title V. In addition, many of those 99 employees work in areas such as mobile sources, which typically are not associated with title V. Furthermore, title V funded 13 positions located outside of Wisconsin's Air Division. WDNR did not provide EPA with any information regarding the activities of these positions. Accordingly, WDNR is not ensuring that all title V fees that it collects are used solely for title V permit program costs, contrary to 42 U.S.C. 7661a(b) and 40 CFR 70.9(a).

Information provided by Wisconsin establishes that when it applied for Federal non-title V grant monies, WDNR satisfied the “matching funds” requirement by using the total balance of funds in the account that holds fees collected under title V and fees collected from non-title V sources. Thus, Wisconsin is using title V money for non-title V purposes. Accordingly, WDNR is not ensuring that all title V fees that it collects are used solely for title V permit program costs, contrary to 42 U.S.C. 7661a(b) and 40 CFR 70.9(a).

Section 502(b) of the Act, 42 U.S.C. 7661a(b), and 40 CFR 70.4 provide that a state must have adequate personnel to ensure that the permitting authority can carry out implementation of its title V program. EPA has determined that Wisconsin is not adequately staffing its title V program.

In Wisconsin's January 27, 1994, initial program submittal, Wisconsin estimated that it would need 300 agency staff to carry out its title V program. Wisconsin has never revised that estimate. As discussed above, Wisconsin currently has 99 title V funded positions in the Air Division. Further, of that number, only 66 of those employees reported working on title V activities on their time sheets in fiscal year 2002, and many of those 99 positions work in areas not typically associated with title V. Finally, Wisconsin's 2004-2005 budget includes a $1.1 million reduction in fee spending authority (not a reduction in fees collected) and a reduction of 11.5 title V positions. Accordingly, because it is not employing staff sufficient, by its own estimate, to carry out its program, Wisconsin is not complying with the requirements of the Act and 40 CFR 70.4.

Section 503(c) of the Act, 42 U.S.C. 7661b(c), and 40 CFR 70.4 require that a permitting authority must act on all initial title V permit applications within three years of the effective date of the program.

EPA granted interim approval to Wisconsin's title V program on April 5, 1995. Pursuant to section 503 of the Act, Wisconsin was to have completed issuance of initial title V operating permits to all of its part 70 sources by April 5, 1998. 42 U.S.C. 7661b(c). WDNR failed to meet this deadline and originally projected it would issue all operating permits by December 2005. In response to EPA's December 2002 fee demonstration request, WDNR stated that, due to the new budget reductions, it may not complete issuance of title V operating permits to all of its part 70 sources until 2009, eleven years after they were due. WDNR has operated its program for over eight years, but has issued only 73% of its permits. As of January 26, 2004, Wisconsin has issued 426 of 578 title V permits.

Recently, Wisconsin indicated that it is undertaking steps to complete issuance of title V operating permits to all of its part 70 sources by December 31, 2004. While EPA finds this intention encouraging, EPA is issuing this notice based on the totality of facts and circumstances currently associated with the State's title V program.

Each source subject to title V must have a permit to operate that assures compliance with all applicable requirements. 42 U.S.C. 7661c(a), 40 CFR 70.1. The regulations define “applicable requirement” to include, among other things, any term or condition of any preconstruction permit issued pursuant to programs approved or promulgated under title I, including parts C or D of the Act. 40 CFR 70.2. Generally, title V does not impose new substantive air quality control requirements. 40 CFR 70.1(b). Therefore, to be included in a title V permit, applicable requirements, such as permit conditions in previously issued permits, must exist independent of the title V permit. In addition, a state, through its Attorney General or other applicable counsel, must provide a legal opinion demonstrating that the state has adequate authority to carry out all aspects of the title V program, including authority to incorporate all applicable requirements into title V permits. 40 CFR 70.4(b)(3)(v).

Title I of the Act authorizes permitting authorities to establish in preconstruction permits source specific terms and conditions necessary for sources to comply with the requirements of the Prevention of Significant Deterioration and New Source Review programs. Wisconsin interprets its statutes, Wis. Stat 285.66(1), and regulations Wis. Admin code NR 405.12, to provide that its preconstruction permits expire after 18 months. Because Wisconsin's rules do not ensure these source specific permit terms remain in effect and exist independently of a title V permit, it allows the basis for these conditions to expire and could cause Wisconsin to lose the authority to include such conditions in a renewed title V permit.

Title V does not provide the authority for the establishment and maintenance of State Implementation Plan (SIP) approved permit requirements. Therefore, Wisconsin's interpretation that its title V program, Wis. Stat. 285.63, provides authority to create source-specific limitations, such as Best Available Control Technology requirements, in title V permits, is inconsistent with EPA's regulations. Because Wisconsin's rules do not assure that construction permit conditions exist independently of title V permits and because its interpretation that its title V program provides the authority to create source specific limitations, the State's program does not meet the program approval requirements of title V and part 70. See 66 FR 64039, 64040 (12/11/01).

States have the option of integrating their pre-construction and title V programs. See 57 FR 32250, 32259 (July 21, 1992). 40 CFR part 70 requires that to implement an integrated permit program, the state permitting authority must: (1) Have in place procedures that substantially comply with all procedural requirements of part 70, 40 CFR 70.7(d)(1)(v); (2) comply with the permit content requirements in 40 CFR 70.6, including the requirement to specify the origin of and authority for each term or condition in a title V permit, 40 CFR 70.7(d)(1)(v); and (3) ensure that the NSR conditions do not expire to assure compliance with applicable requirements, 42 U.S.C. 7661c(a) and 40 CFR 70.1(b).

Wisconsin has been issuing combined pre-construction and title V permits for several years. Wisconsin does not identify NSR conditions or specify the origin and authority of the NSR conditions in combined permits. Furthermore, Wisconsin does not have any provisions to ensure that the NSR conditions are permanent. Wisconsin's integrated title V/pre-construction program does not meet the requirements of 40 CFR part 70.

40 CFR 70.6(b) provides that all terms and conditions in a title V permit are federally enforceable, that is, enforceable by EPA or citizens. However, the permitting authority can designate as not federally enforceable any terms and conditions included in the permit that are not required under the Act or under any of its applicable requirements. 40 CFR 70.6(b)(2) and 40 CFR 70.2 (definition of applicable requirement).

All terms and conditions of a permit issued pursuant to a program approved into a state's SIP are federally enforceable. 40 CFR 52.23. Wisconsin, however, does not identify all terms and conditions of its construction permit as federally enforceable. Instead, Wisconsin currently identifies permit requirements in title V permits originating from Wisconsin's non-SIP toxics program (Wis. Admin. Code NR 445) as enforceable by the state only, even when the requirements were established in a permit issued pursuant to a SIP-approved program. Wisconsin's failure to include the terms established in a permit issued pursuant to a SIP-approved program into the federally enforceable side of its title V permits is contrary to 40 CFR 70.6.

40 CFR 70.5(c) authorizes EPA to approve as part of a state program a list of insignificant activities and emission levels which need not be included in the permit application. An application may not omit, however, information needed to determine the applicability of, or to impose, any applicable requirement, or to evaluate the fee amount required under the EPA approved schedule. Moreover, nothing in part 70 authorizes a state to exempt insignificant emission units (IEUs) from the permit content requirements of 40 CFR 70.6. Furthermore, the July 21, 1992 preamble to the part 70 regulations provides that the IEU exemption does not apply to permit content. 57 FR 32273 (July 21, 1992).

Wisconsin's regulations contain criteria for sources to identify IEUs in their applications, (Wis. Admin. Code NR 407), and require that permit applications contain information necessary to determine the applicability of, or to impose, any applicable requirement. Although Wisconsin's regulations are consistent with EPA's regulations at 40 CFR part 70, the State is not properly implementing its regulations because it is not including these applicable requirements in its title V permits. Therefore, Wisconsin's implementation of its regulations is inconsistent with part 70.

40 CFR 70.10(b) and (c) provide that EPA may withdraw a part 70 program approval, in whole or in part, whenever the approved program no longer complies with the requirements of part 70, EPA has notified the state of the noncompliance, and the permitting authority fails to take corrective action. 40 CFR 70.10(c)(1) lists a number of potential bases for program withdrawal, including inadequate fee collection, failure to comply with the requirements of part 70 in administering the program, and failure to timely issue permits.

40 CFR 70.10(b), which sets forth the procedures for program withdrawal, requires as a prerequisite to withdrawal that the EPA Administrator notify the permitting authority of any finding of deficiency by publishing a notice in the Federal Register. Today's notice satisfies this requirement and constitutes a finding of program deficiency. If Wisconsin has not taken “significant action to assure adequate administration and enforcement of the program” within 90 days after issuance of this notice of deficiency, EPA may, among other things, withdraw approval of the program using procedures consistent with 40 CFR 70.4(e) and/or promulgate, administer, and enforce a Federal title V program. See 40 CFR 70.10(b)(2). Additionally, 40 CFR 70.10(b)(3) provides that if the state has not corrected the deficiency within 18 months after the date of the finding of deficiency and issuance of the NOD, then the state would be subject to the sanctions under section 179(b) of the Act, in accordance with section 179(a) of the Act, 18 months after that notice. Upon EPA action, the sanctions will go into effect unless the State has corrected the deficiencies identified in this notice within 18 months after signature of this notice. 1 These sanctions would be applied in the same manner, and subject to the same deadlines and other conditions as are applicable in the case of a determination, disapproval, or finding under section 179(a) of the Act.

In addition, 40 CFR 70.10(b)(4) provides that, if the state has not corrected the deficiency within 18 months after the date of the finding of deficiency, EPA will promulgate, administer, and enforce a whole or partial program within 2 years of the date of the finding.

This document is not a proposal to withdraw Wisconsin's title V program. Consistent with 40 CFR 70.10(b)(2), EPA will wait at least 90 days, at which point it will assess whether the state has taken significant action to correct the deficiencies outlined in this notice. See 40 CFR 70.10(b)(2) (providing that 90 days after issuance of NOD, EPA may take certain actions).

Under section 307(b)(1) of the Act, petitions for judicial review of today's action may be filed with the United States Court of Appeals for the appropriate circuit within 60 days of March 4, 2004.

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

EPA concludes that Delaware's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Delaware final authorization to operate its hazardous waste program with the revisions described in its application for program revisions, subject to the procedures described in section E, below. Delaware has responsibility for permitting treatment, storage, and disposal facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program described in its application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those HSWA requirements and prohibitions for which Delaware has not been authorized, including issuing HSWA permits, until the State is granted authorization to do so.

This decision serves to authorize revisions to Delaware's authorized hazardous waste program. This action does not impose additional requirements on the regulated community because the regulations for which Delaware is being authorized by today's action are already effective and are not changed by today's action. Delaware has enforcement responsibilities under its state hazardous waste program for violations of its program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Perform inspections, and require monitoring, tests, analyses or reports;

• Enforce RCRA requirements and suspend or revoke permits; and

• Take enforcement actions regardless of whether Delaware has taken its own actions.

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize Delaware's program revisions. If EPA receives comments which oppose this authorization, or portions thereof, that document will serve as a proposal to authorize the revisions to Delaware's program that were the subject of adverse comment.

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

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

Initially, Delaware received final authorization to implement its hazardous waste management program effective June 22, 1984 (53 FR 23837). EPA granted authorization for revisions to Delaware's regulatory program effective October 7, 1996 (61 FR 41345); October 19, 1998 (63 FR 44152); September 11, 2000 (65 FR 42871); and August 8, 2002 (67 FR 51478).

On November 28, 2003, Delaware submitted a program revision application, seeking authorization of additional revisions to its program in accordance with 40 CFR 271.21. Delaware's revision application includes various regulations which are equivalent to, and no less stringent than, changes to the Federal hazardous waste program, as published in the Federal Register on November 8, 2000, June 28, 2001, November 20, 2001 and April 9, 2002. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that Delaware's hazardous waste program revision satisfies all of the requirements necessary to qualify for final authorization. Therefore, EPA grants Delaware's final authorization for the following program revisions:

Delaware seeks authority to administer the Federal requirements that are listed in Table 1. This Table lists the State analogs that are being recognized as no less stringent than the appropriate Federal requirements. Unless otherwise stated, the State's statutory references are to the Delaware Regulations Governing Hazardous Waste (DRGHW), amended and effective July 1, 2002 and July 11, 2002. The statutory references are to 7 Delaware Code Annotated (1991).

In addition, Delaware will be authorized to carry out, in lieu of the Federal program, State-initiated revisions to provisions of the State's Program. The following State-initiated revisions equivalent and analogous to the numerically-identical RCRA provisions found at Title 40 of the Code of Federal Regulations: DRGHW 254.53, 264.344(c)(1), 265.1085(i), Part 265 Appendix I, Part 268 Appendix VIII, 279.11 Table 1. Another State-initiated revision being authorized by this notice is DRGHW 122.1(c)(7), which is equivalent and analogous to 40 CFR 270.1(c)(7). Delaware will also be authorized to carry out, in lieu of the Federal program, State-initiated revisions to provisions of the State's Program which are more stringent than is required by the RCRA program and are presented in section H.

The Delaware hazardous waste program contains some provisions which are more stringent than is required by the RCRA program. The more stringent provisions are being recognized as a part of the Federally-authorized program and include the following:

1. At DRGHW 261.21(a)(1) and (3) Delaware deleted outdated language that referred to the approval of equivalent test methods. The State does not allow alternative test methods and thereby still remains more stringent.

2. At DRGHW 264.1033(l)(3)(ii), 264.1052(c)(2), (d)(6)(iii), 264.1053(g)(2), 264.1057(d)(2), 264.1058(c)(2), 264.1084(k)(1), 264.1085(f)(1), and 264.1086(c)(4)(iii) Delaware is more stringent because it requires a facility to make a first effort at repair of a defective pollution control device or component to be within one calendar day after detection instead of five calendar days as EPA requires.

3. At DRGHW 265.37 Delaware is more stringent because it clarifies that an owner or operator must require written documentation of receipt to establish arrangements for emergency services. EPA states arrangements must be made but does not require written documentation.

4. At DRGHW 265.1033(k)(3)(ii), 265.1052(d)(6)(ii), 255.1053(g)(2), 265.1057(d)(2), 265.1058(c)(2), 265.1085(k)(1), 265.1086(f)(1), and 265.1087(c)(4)(iii) Delaware is more stringent because it requires a facility to make a first effort at repair of a defective pollution control device or component to be within one calendar day after detection instead of five calendar days as EPA requires.

5. At DRGHW 279.42(b) Delaware is more stringent because it only allows used oil transporters the use of the State's form when requesting EPA identification (ID) numbers. EPA allows the use of the form or a letter for EPA ID numbers.

After authorization, Delaware will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which it issued prior to the effective date of this authorization. Until such time as formal transfer of EPA permit responsibility to Delaware occurs and EPA terminates its permit, EPA and Delaware agree to coordinate the administration of permits in order to maintain consistency. EPA will not issue any additional new permits or new portions of permits for the provisions listed in section G after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Delaware is not yet authorized.

Delaware is not seeking authorization to operate the program on Indian lands, since there are no Federally-recognized Indian lands in Delaware.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by referencing the authorized State rules in 40 CFR part 272. EPA reserves the amendment of 40 CFR part 272, subpart I, for this authorization of Delaware's program changes until a later date.

This rule only authorizes hazardous waste requirements pursuant to RCRA 3006 and imposes no requirements other than those imposed by State law ( see Supplementary Information: section A. Why are Revisions to State Programs Necessary?). Therefore, this rule complies with applicable executive orders and statutory provisions as follows.

1. Executive Order 12866: Regulatory Planning Review —The Office of Management and Budget has exempted this rule from its review under Executive Order 12866. 2. Paperwork Reduction Act— This rule does not impose an information collection burden under the Paperwork Reduction Act. 3. Regulatory Flexibility Act— After considering the economic impacts of today's rule on small entities under the Regulatory Flexibility Act, I certify that this rule will not have a significant economic impact on a substantial number of small entities. 4. Unfunded Mandates Reform Act— 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. 5. Executive Order 13132: Federalism— Executive Order 12132 does not apply to this rule because it will not have federalism implications ( i.e., 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). 6. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments— Executive Order 13175 does not apply to this rule because it will not have tribal implications ( i.e., substantial direct effects 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). 7. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks— This rule is not subject to Executive Order 13045 because it is not economically significant and it is not based on health or safety risks. 8. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use— This rule is not subject to Executive Order 13211 because it is not a significant regulatory action as defined in Executive Order 12866. 9. National Technology Transfer Advancement Act— EPA approves State programs as long as they meet criteria required by RCRA, so it would be inconsistent with applicable law for EPA, in its review of a State program, to require the use of any particular voluntary consensus standard in place of another standard that meets the requirements of RCRA. Thus, section 12(d) of the National Technology Transfer and Advancement Act does not apply to this rule. 10. Congressional Review Act— EPA will submit a report containing this rule and other information required by the Congressional Review Act (5 U.S.C. 801 et seq. ) to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective on May 3, 2004.

The Coast Guard published a final rule in the Federal Register of February 4, 2004 (69 FR 5390; FR Doc. 04-2230). The rule contained inadvertent errors in the preamble, under the heading, List of Changes to the SNPRM . These errors are nonsubstantive, but we are correcting them to prevent confusion.

In final rule FR Doc. 04-2230 published on February 4, 2004 (69 FR 5390), make the following corrections. On page 5392, in the third column, in item number 12, under the List of Changes to the SNPRM , remove the first paragraph which begins with the words, “The grandfather provision * * *” and ends with the words, “* * * prohibited by this rule.” In its place add the following paragraph:

“The grandfather provision in § 67.20(b) has one change. The date before which an endorsement must be issued to be eligible for the grandfather provision is changed from the effective date of this final rule to the date of publication of this rule. The purpose of the grandfather provision is to protect existing business arrangements. Changing the effective date (which, at the time the SNPRM was written, we expected to be 30 days after the publication date) of the rule to the date of publication prevents the establishment of new business arrangements that would be prohibited by this rule.”

The second and third paragraphs under item 12 remain unchanged.

This final rule implements the final specifications for the FY2004 red crab fishery. Regulations implementing the FMP require the New England Fishery Management Council (Council) to review annually the red crab specifications. The Council's Red Crab Plan Development Team (PDT) meets at least annually to review the status of the stock and the fishery. Based on this review, the PDT reports to the Council's Red Crab Committee, no later than October 1, any necessary adjustments to the management measures and recommendations for the specifications. Specifications include the specification of optimum yield (OY), the setting of any target TAC, allocation of DAS, and/or adjustments to trip/possession limits. In developing the management measures and recommendations for the annual specifications, the PDT reviews the following data, if available: Commercial catch data; current estimates of fishing mortality and catch-per-unit-effort (CPUE); stock status; recent estimates of recruitment; virtual population analysis results and other estimates of stock size; sea sampling, port sampling, and survey data or, if sea sampling data are unavailable, length frequency information from port sampling and/or surveys; impact of other fisheries on the mortality of red crabs; and any other relevant information. Recommended specifications are presented to the Council for adoption and recommendation to NMFS.

Based on the available biological information and the Council's subsequent recommendation, the maximum sustainable yield (MSY) and OY for FY2004 remain the same as during FY2003. The FMP defines the target TAC as equal to OY, and OY is set at 95 percent of MSY, unless adjusted through the annual specifications process. The MSY for FY2004 is estimated to be 6.24 million lb (2.83 million kg); therefore, absent any new information on which to base a change in OY, OY and the target TAC remain at 5.928 million lb (2.69 million kg).

Five vessels qualified for a limited access permit in the red crab fishery for the 2002 and 2003 fishing years. The fleet was allocated 780 DAS for FY2003, which translated into 156 DAS for each of the five limited access vessels.

The Council considered six alternative ways to determine the fleet DAS allocation most appropriate to achieve the objectives of the FMP. Each alternative would have resulted in a different fleet DAS allocation. A complete description of each alternative is found in section 4.0 of the Council's Red Crab Specifications document and is not repeated here. The total fleet DAS for FY2004 would have varied from 745 under Alternative 1, to 874 under Alternative 4. An explanation of the reasons the Council selected the preferred alternative is found in the Classification section of the proposed specifications (69 FR 1561; January 9, 2004) and is not repeated here.

Based on the Council's analysis in its annual Red Crab Specifications document, NMFS concurs with the Council's recommendation that the FY2003 specifications continue to meet the objectives of the FMP and should be maintained for FY2004; therefore, the following specifications are implemented for FY2004:

In accordance with § 648.260(b)(2), because the effective date of this rule falls after the start of the fishing year on March 1, 2004, fishing may commence under the levels set in the previous year's specifications (156 DAS per vessel), until these specifications become effective. Once these specifications become effective, qualified limited access red crab vessels will have access to their allocation of DAS for FY2004 (195 DAS per vessel). However, all DAS used by a vessel on or after March 1, 2004, will be counted against any DAS allocation the vessel ultimately receives for the 2004 fishing year.

One comment on the proposed specifications was received from the New England Red Crab Harvesters' Association (NERCHA), submitted on behalf of its membership, which includes all of the red crab limited access permit holders. A second comment was received from an interested party in which some of the issues raised did not specifically address the proposed specifications.

Comment 1: NERCHA supports the specifications as published in the Federal Register on January 9, 2004. NERCHA states that it will attempt to harvest the 2004 target TAC for red crab without exceeding the OY.

Response: NMFS acknowledges NERCHA's comment and is implementing the specifications as proposed.

Comment 2: One commentor expressed general support for environmental reforms, marine sanctuaries, and improved enforcement of fishery regulations. The commentor suggested that the red crab TAC be reduced to 2.5 million lb (1.13 million kg) and by 10 percent in each subsequent year thereafter. The commentor also suggested that the fleet DAS be reduced from 780 to 340 and by 10 percent each subsequent year thereafter, and further stated that incidental taking should not be allowed. The commentor questioned the accuracy of the population estimates, which, she stated, were 2 years old and did not include the 2003 catch data.

Regulations governing the Loligo squid fishery are found at 50 CFR part 648. The regulations require specifications for maximum sustainable yield, initial optimum yield, allowable biological catch, domestic annual harvest (DAH), domestic annual processing, joint venture processing and total allowable levels of foreign fishing for the species managed under the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan. The procedures for setting the annual initial specifications are described in § 648.21.

The 2004 specification of DAH for Loligo squid was set at 16,872.4 mt (69 FR 4861, February 2, 2004). This amount is allocated by quarter, as shown below.

Section 648.22 requires NMFS to close the directed Loligo squid fishery in the EEZ when 80 percent of the quarterly allocation is harvested in Quarters I, II and III, and when 95 percent of the total annual DAH has been harvested. NMFS is further required to notify, in advance of the closure, the Executive Directors of the Mid-Atlantic, New England, and South Atlantic Fishery Management Councils; mail notification of the closure to all holders of Loligo squid permits at least 72 hours before the effective date of the closure; provide adequate notice of the closure to recreational participants in the fishery; and publish notification of the closure in the Federal Register . The Administrator, Northeast Region, NMFS, based on dealer reports and other available information, has determined that 80 percent of the DAH for Loligo squid in Quarter I will be harvested. Therefore, effective 0001 hours, March 5, 2004, the directed fishery for Loligo squid is closed and vessels issued Federal permits for Loligo squid may not retain or land more than 2,500 lb (1.13 mt) of Loligo . Such vessels may not land more than 2,500 lb (1.13 mt) of Loligo during a calendar day. The directed fishery will reopen effective 0001 hours, April 1, 2004, when the Quarter II quota becomes available.

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