This amendment to 14 CFR part 71 revises the Class E airspace at Carrizo Springs, Glass Ranch, TX. The development of a GPS SIAP, at Indio-Faith Airport, Carrizo Springs, TX, has made this rule necessary. This action is intended to provide adequate controlled airspace extending upward from 700 feet or more above the surface for IFR operations to Indio-Faith Airport, Carrizo Springs, TX.

Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9G, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR § 71.1. The Class E airspace designation listed in this document will be published subsequently in the order.

The FAA anticipates that this regulation will not result in adverse or negative comment and therefore is issuing it as a direct final rule. A substantial number of previous opportunities provided to the public to comment on substantially identical actions have resulted in negligible adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

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communications received on or before the closing date for comments will be considered, and this rule may be amended or withdrawn in light of the comments received.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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2000-ASW-12.” The postcard will be date stamped and returned to the commenter.

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

Further, the FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments and only involves an established body of technical regulations that require frequent and routine amendments to keep them operationally current. Therefore, I certify that this regulation (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. Since this rule involves routine matters that will only affect air traffic procedures and air navigation, it does not warrant preparation of a Regulatory Flexibility Analysis because the anticipated impact is so minimal.

This amendment to 14 CFR part 71 revokes the Class E Airspace at Freeport, TX. The cancellation of VOR/DME Special Instrument Approach Procedures to heliports in the Freeport, TX area has promoted this action. The intended effect of this action is to relinquish control over airspace that is no longer needed for aircraft operating in the vicinity of Freeport, TX.

Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9G, dated September 1, 1999, and effective September 167, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the order.

The FAA anticipates that this regulation will not result in adverse or negative comment and therefore is issuing it as a direct final rule. A substantial number of previous opportunities provided to the public to comment on substantially identical actions have resulted in negligible adverse comments or objections. Unless written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2000-ASW-11.” The postcard will be date stamped and returned to the commenter.

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

Further, the FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments and only involves an established body of technical regulations that require frequent and routine amendments to keep them operationally current. Therefore, I certify that this regulation (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. Since this rule involves routine matters that will only affect air traffic procedures and air navigation, it does not warrant preparation of a Regulatory Flexibility Analysis because the anticipated impact is so minimal.

The FAA published this direct final rule with a request for comments in the Federal Register on February 17, 2000, (65 FR 8043). The FAA uses the direct final rulemaking procedure for a noncontroversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on June 15, 2000. No adverse comments were received, and, thus, this action confirms that this direct final rule will be effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on February 17, 2000, (65 FR 8044). The FAA uses the direct final rulemaking procedure for a noncontroversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on June 15, 2000. No adverse comments were received, and, thus, this action confirms that this direct final rule will be effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on February 17, 2000, (65 FR 8045). The FAA uses the direct final rulemaking procedure for a noncontroversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on June 15, 2000. No adverse comments were received, and, thus, this action confirms that this direct final rule will be effective on that date.

On December 13, 1999, a proposal to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish the Class E airspace at Holy Cross, AK, was published in the Federal Register (64 FR 69431). The proposal was necessary due to the establishment of GPS instrument approach procedures to Runway 1 and Runway 19 at Holy Cross, AK. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments to the proposal were received; thus, the rule is adopted as written.

The area would be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 in FAA Order 7400.9G, Airspace Designations and Reporting Points, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 establishes the Class E airspace at Holy Cross, AK, through the establishment of two GPS instrument approaches. The airport status changes from VFR to IFR. The area will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide controlled airspace for IFR operations at Holy Cross, AK.

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

On December 13, 1999, a proposal to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish the Class E airspace at Kipnuk, AK, was published in the Federal Register (64 FR 69430). The proposal was necessary due to the establishment of a GPS instrument approach procedure to Runway 15 at Kipnuk, AK. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments to the proposal were received; thus, the rule is adopted as written.

The area would be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 in FAA Order 7400.9G, Airspace Designations and Reporting Points, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 establishes the Class E airspace at Kipnuk, AK, through the establishment of a GPS instrument approach to Runway 15. The airport status changes from VFR to IFR. The area will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide controlled airspace for IFR operations at Kipnuk, AK.

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

On November 22, 1999, a proposal to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish the Class E airspace at Scammon Bay, AK, was published in the Federal Register (64 FR 63765). The proposal was necessary due to the establishment of GPS instrument approach procedures at Scammon Bay, AK. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments to the proposal were received; thus, the rule is adopted as written.

The area would be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 in FAA Order 7400.9G, Airspace Designations and Reporting Points, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 establishes the Class E airspace at Scammon Bay, AK, through the establishment of GPS instrument approaches. The airport status changes from VFR to IFR. The area will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide controlled airspace for IFR operations at Scammon Bay, AK.

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

On May 15, 1995, the US Army requested that the FAA establish four restricted areas in West/Central New Mexico to support the US Army Tactical Missile System projects.

On February 2, 1996, the FAA published in the Federal Register a notice proposing to establish four restricted areas in West/Central, New Mexico (61 FR 3884). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. In response to the notice, the FAA received comments from New Mexico Tech (Langmuir Laboratory for Atmospheric Research) and the Aircraft Owners and Pilots Association (AOPA). Comments received were considered before making a determination on this final rule. An analysis of the comments received and the FAA's responses are summarized below.

New Mexico Tech commented on proposed R-5119. It stated that it currently uses R-5113 for thunderstorm research. Thus, it believes that R-5119 should not have an adverse effect on R-5113 provided (1) the US Army completes its test activity by 9:00 a.m., local time and (2) the designated altitude of R-5119 does not extend below FL 350.

The FAA finds that the restricted airspace will not adversely effect New Mexico Tech's thunderstorm research in R-5113. The operational limits of the two restricted areas are as follows: R-5113 is designated as the airspace from the surface to 45,000 feet mean sea level (MSL); and R-5119 is designated as the airspace from FL 350 to unlimited altitude. Due to the design of R-5119 a portion of R-5113 geographically overlaps R-5119's upper northwestern area. However, the high operational altitude of the test missiles transiting R-5119 make it unlikely that a trespass will occur in the upper limit of R-5113 at 45,000 feet MSL as the test missiles over-fly R-5113 in descent to the adjacent White Sands Missile Range (WSMR). After careful and thorough consideration of the facts presented by the US Army, the FAA believes this final rule has little, if any, impact on the research activities of New Mexico Tech.

The AOPA expressed concerns that the TMD program poses a significant hazard to general aviation (GA) operations and that the proposed restricted areas will require GA pilots to circumnavigate the areas. AOPA believes that increased restrictions on airspace are not an efficient use of airspace, will result in increased fuel costs and will cause unnecessary changes to planned routes of flight. Additionally, as part of its comment, AOPA asked what plan, if any, is in place to protect nonparticipating aircraft from missiles that malfunction and deviate from the planned trajectory. Further, AOPA believes that all alternatives must be explored prior to the establishment of Special Use Airspace (SUA).

The US Army Space and Strategic Defense Command and the WSMR analyst have conducted extensive research studying flight profiles of target and defense missiles. An analysis of this research data led to the development of launch hazard areas (e.g. booster drop zones, intercept debris impact zones) and intact target vehicle and defensive missile impact zones. Based on the analysis, the four restricted areas were identified to segregate these potentially hazardous activities from nonparticipating aircraft.

Prior to each test missile launch, range personnel will conduct impact area analysis based on detailed launch planning and trajectory modeling. Test missile launches will be conducted only when the impact area analysis confirms that flight vehicles and debris would be contained within the predetermined areas. However, to further reduce risk and lessen any potential impact on civil or GA aviation, the US Army has agreed to (1) schedule testing to conclude by 9:00 a.m., local time, when the volume of air traffic is normally low and, (2) limit the number of tests per year (estimated at 6 to 10 per year). Though it is anticipated to remain limited, in the interest of national security the test program number, as published in the notice, may be exceeded. Further, each test from launch to impact is designed to take less than 15 minutes.

It is important to note that, in the past, the US Army has employed successfully the boosters to be used on the test missiles and the boosters are considered highly reliable in the terms of safety and predictability. Therefore, the FAA finds that the chances of a test missile flight failure during launch through impact is considered remote. However, the US Army has established safety procedures in the event of such a failure.

The US Army categorizes termination into three potential mishap areas: (1) On the launcher; (2) flight shortly after liftoff; and (3) flight after exiting the launch site. R-5117 and R-5121 are designed to contain the first two potential mishap categories. In the event of an exceptional circumstance such as a missile malfunction, the Range Safety Officer determines the safest point to initiate missile termination. This point is determined by real time performance data collected form a variety of instruments (e.g. telemetry, radar, computer, etc.). This data provides information on missile location and the point of debris impact at points along the trajectory to the planned impact in WSMR. Due to the high altitudes at which the test missiles navigate, the FAA has found that it is unlikely that a missile malfunction and subsequent termination outside of the designated restricted area will make the airspace underlying the missile flight path unsafe.

The US Army identified the minimum required airspace to contain the theater missile defense test operations in the national airspace system. Although the US Army has attempted to mitigate the impacts on civil operations by limiting the number, time of day, and flight time of the missile, some aircraft operations may be effected when the restricted areas are activated. However, during a standard 12-hour flying day, the limits and procedures established by the US Army will allow flight through the published restricted areas over 99 percent of the time. The FAA will activate the restricted airspace through a Notice to Airman (NOTAM) and will provide 24 hours of notice prior to activation. If a NOTAM is not published, aircraft may navigate through charted restricted areas, without concern. Therefore, there should be little, if any, impact on aircraft operations.

Charting permanent restricted areas on aeronautical charts provides users of the navigable airspace important information concerning potential flight hazards. The legend on the aeronautical chart reflects these areas as active “By NOTAM, 24 Hours in Advance.” Charting of the restricted airspace together with the use of the NOTAM system to publicize the effective date and activation times of restricted areas, remain the most efficient means to notify the flying public and segregate these potentially hazardous activities from GA operations.

This amendment to 14 CFR part 73 establishes four restricted areas in West/Central New Mexico. Specifically, this action establishes four restricted areas: R-5117 and R-5121, Fort Wingate, NM; R-5119, Socorro, NM; and R-5123, Magdalena, NM. These restricted areas will provide an area for the US Army and designated joint-use agencies, to conduct tests to validate the TMD system design and operational effectiveness. Under the test program, missile launches will be conducted from Fort Wingate Army Depot, near Gallup, NM, and will terminate in the existing restricted area of the WSMR, NM. The FAA is taking this action to provide the US Army SUA in support of the TMD testing program.

R-5117 is designated as the launch site and is located at Fort Wingate Army Depot, NM, southeast of Gallup, NM. R-5117 extends from the surface to unlimited altitude and contains the missile launch area. It overlies government-controlled land. R-5121 is designated adjacent to R-5117, and extends from FL 200 to unlimited altitude and contains missile ascent after the initial launch.

R-5123, located at Cibola National Forest, Magdalena, NM, extends from the surface to unlimited altitude and provides a booster drop zone to contain reentry and impact of missile boosters after launch from R-5117. R-5123 also overlies government-controlled land.

R-5119 is designated as a missile reentry and planned termination area in the existing R-5107 within the WSMR. R-5119 extends from FL 350 to unlimited altitude and is adjacent to the existing WSMR.

When activated, the restricted areas may impact visual flight rules (VFR) and/or instrument flight rules (IFR) aircraft operations, along the vicinity of the Gallup (GUP), Socorro (ONM) and Truth or Consequences (TCS) navigational aids because of the necessity to reroute planned flight routes due to TMD testing. However, the potential impact is significantly reduced by the limited number of planned test events (6 to 10 a year) anticipated, the short duration of activity (15 minutes total) and the notification and coordination procedures in place. Additionally, the US Army has agreed to complete test activity prior to 9:00 a.m., local time, when the volume of air traffic in the area is normally low. Except for editorial changes, this amendment is the same as that proposed in the notice. Section 73.51 of part 73 was republished in FAA Order 7400.8G dated September 1, 1999.

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

The Department of Defense, Ballistic Missile Defense Organization (BMDO), issued the Theater Missile Defense Extended Test Range Final Environmental Impact Statement (EIS) in November 1994. Cooperating agencies for the EIS included the U.S. Air Force, Navy, US Army, and the FAA.

Initially, eleven candidate test range areas were considered for TMD extended-range testing. Seven of these alternatives were eliminated from further study due to inadequate features, such as lack of required instrumentation, absence of target launch land sites, prohibitive cold weather, unacceptable schedule delays, and inadequate land area for interceptor deployment. Four alternatives were retained for further consideration. Extended range testing was considered at WSMR, NM, Eglin Air Force Base, FL, Western Range, CA, and Kwajalein Missile Range, Republic of the Marshall Islands. The Western Range alternative was rejected because of soil erosion considerations and the costs of preparing the impact area for analysis. The Eglin Air Force Base and Kwajalein alternatives were rejected because testing would be limited to ocean impacts. Additionally, testing at Kwajalein posed technical difficulties and additional costs. Thus, the US Army has determined that extended range testing at WSMR is the preferred location as described in this rule because there are no impacts to wilderness study areas, recreation areas, national monuments and nesting and breading seasons of sensitive species. The selection of WSMR included two off-range missile launch alternatives; Fort Wingate Army Depot, NM, and the Green River Launch Complex, UT. The US Army selected the Fort Wingate Army Depot as the launch site.

The No Action Alternative would consist of the continuation of ongoing activities and operations at the four locations considered. The development of ground-based TMD missile and sensor systems would continue, with missile flight tests and target intercepts being conducted utilizing existing test ranges. No construction and operations for missile launch programs at the remote launch locations or use of sea launch capabilities would be conducted to support these types of ground-based TMD system tests. Test and training area restrictions, particularly on shorter-range missile flights conducted at WSMR, prohibited full validation of system design and operational effectiveness in realistic theater environments. As a result, the no action alternative was eliminated as a prudent and feasible alternative because it did not satisfy the mandatory requirements identified by the BMDO as necessary to fulfill its TMD program needs. The BMDO issued a Record of Decision in March 1995 that adopted all practicable means to avoid or minimize harm.

In February 2000, the FAA completed a written reevaluation of the EIS. The FAA adopted the EIS as final, pursuant to 40 CFR 1506.3(c) and (b) 62 FR 43730 and 62 FR 44685. After careful and thorough consideration of the facts contained herein and following consideration of the views of those Federal agencies having jurisdiction by law and special expertise with respect to the environmental impacts described, the undersigned finds that this Federal action is consistent with existing national policies and objectives as set forth in section 101(a) of the National Environmental Policy Act of 1959, as amended.

This final rule constitutes final agency action under 49 USC 46110. Any person disclosing a substantial interest in this order may appeal the order to the United States Court of Appeals of the District of Columbia upon petition, filed within 60 days after the order is issued.

On February 10, 2000, the Commission published in the Federal Register   1 for public comment proposed amendments to Regulation 1.17, which governs the minimum financial requirements imposed upon FCMs and IBs (the “Proposal”). 2 The Proposal was to: (1) Ease the restrictions imposed upon the withdrawal of equity capital from an FCM; (2) increase the percentage deduction ( i.e., “haircut”) applied to the value of equity securities pledged as collateral for secured demand notes that are included in the adjusted net capital of an FCM or IB; and (3) delete a reference to a section of the SEC's capital rules that has been repealed. The comment period expired on March 13, 2000. No comments were received.

After considering the issues, the Commission has determined to adopt the amendments as proposed. A discussion of the final rule amendments is provided below.

Commission Regulation 1.17(e) prohibits the withdrawal of equity capital from an FCM  3 to redeem or to repurchase shares of stock of the FCM, to pay dividends, or to make an unsecured advance or loan to a stockholder, partner, sole proprietor or employee of the FCM if, after giving effect to the withdrawal and to certain other specified withdrawals and payments, the FCM's adjusted net capital would be less than the greatest of:

(1) $300,000 (120 percent of the $250,000 minimum adjusted net capital requirement);

(2) Seven percent of the customer funds required to be segregated or set aside pursuant to the Commodity Exchange Act (“Act”) and Commission regulations,  4 (hereinafter collectively referred to as the “customer segregated and secured amount”);

(3) 120 percent of the amount of adjusted net capital required by a registered futures association of which the FCM is a member; or

(4) For an FCM that is also a securities broker or dealer registered with the SEC, the amount of net capital specified in SEC Rule 15c3-1(e). 5

In a notice published in the Federal Register of August 24, 1998 (63 FR 45073), FDA announced that a food additive petition (FAP 8B4606) had been filed by The Dow Chemical Co., 2030 Dow Center, Midland, MI 48674. The petition proposed to amend the food additive regulations in § 175.300 Resinous and polymeric coatings (21 CFR 175.300) to provide for the safe use of polyethylenepolyamines (PEPA's) as cross-linking agents for epoxy resins in coatings intended for use in contact with food.

In its evaluation of the safety of PEPA's, FDA has reviewed the safety of the additive itself and the chemical impurities that may be present in the additive resulting from its manufacturing process. Although PEPA's have not been shown to cause cancer, they could contain minute amounts of unreacted starting material, ethylene dichloride (1,2-dichloroethane), a carcinogenic impurity. However, FDA concludes that 1, 2-dichloroethane is not likely to be present in the final food contact material in an amount that could present a safety concern for the following reasons. Based on the low boiling point of 1,2-dichloroethane relative to PEPA's, residual 1,2-dichloroethane would be expected to be removed during any purification process of PEPA's. Any residual 1,2-dichloroethane in PEPA's would also be expected to be removed on curing of epoxy resins with PEPA's. In addition, because epoxy resins cured with PEPA's will be allowed only for repeat-use applications, any 1,2-dichloroethane that could be present in food would be minimized by evaporation and washing of the surface before food is added and by the large volume of food in contact with the cured resin over its service lifetime. Based on this information, the agency concludes that the proposed use of the additive is safe, and that the additive will achieve its intended technical effect. Therefore, the agency concludes that the regulations in § 175.300 should be amended as set forth below.

In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that FDA considered and relied upon in reaching its decision to approve the petition are available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the information contact person listed above. As provided in § 171.1(h), the agency will delete from the documents any materials that are not available for public disclosure before making the documents available for inspection.

The agency has previously considered the environmental effects of this rule as announced in the notice of filing for FAP 8B4606 (63 FR 45073). No new information or comments have been received that would affect the agency's previous determination that there is no significant impact on the human environment and that an environmental impact statement is not required.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Any person who will be adversely affected by this regulation may at any time on or before May 22, 2000, file with the Dockets Management Branch (address above) written objections thereto. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provisions of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection. Three copies of all documents shall be submitted and shall be identified with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

On September 22, 1995, the Treasury Department and the IRS published in the Federal Register (60 FR 49199) Final Income Tax Regulations (TD 8619) under sections 401(a)(31) and 402(c). The final regulations provide guidance for complying with the Unemployment Compensation Amendments of 1992 (UCA). A proposed amendment to the regulations (REG-245562-96) under section 401(a)(31) was published in the Federal Register (61 FR 49279) on September 19, 1996. The 1996 proposed regulations under sections 401(a)(31) and 402(c) expand and clarify the guidance previously issued in the Final Income Tax Regulations. On December 17, 1998, an amendment to the proposed regulations (REG-245562-96) under section 401(a)(31) was published in the Federal Register (63 FR 69584). This amendment to the proposed regulations was issued in response to the congressional directive in section 1509 of Taxpayer Relief Act of 1997 (TRA '97), which directs the IRS to issue guidance clarifying that it is not necessary for a distributing plan to have a favorable IRS determination letter in order for a plan administrator of a receiving plan to reasonably conclude that a contribution is a valid rollover contribution. Written comments responding to the 1996 proposed regulations were received. There were no written comments responding to the 1998 amendment to the proposed regulations. No public hearing was requested or held. After consideration of the comments, the amended proposed regulations under section 401(a)(31) are adopted by this Treasury decision.

The final regulations under section 401(a)(31) of the Internal Revenue Code provide that an eligible retirement plan which accepts a direct rollover from another plan will not fail to satisfy section 401(a) or 403(a) merely because the plan making the distribution is, in fact, not qualified under section 401(a) or 403(a) at the time of the distribution if, prior to accepting the rollover, the plan administrator of the receiving plan reasonably concluded that the distributing plan was qualified under section 401(a) or 403(a).

The proposed regulations clarify and expand upon this relief. Under the proposed regulations, an eligible retirement plan that accepts an invalid rollover contribution, whether as a direct rollover or as a rollover contribution other than a direct rollover, will be treated, for purposes of section 401(a) or 403(a), as accepting a valid rollover contribution, if the plan administrator of the receiving plan satisfies two conditions. First, when accepting the rollover contribution, the plan administrator of the receiving plan must reasonably conclude that the rollover contribution is a valid rollover contribution. Second, if the plan administrator of the receiving plan later determines that the rollover contribution was an invalid rollover contribution, the plan must distribute the amount of the invalid rollover contribution, plus earnings attributable thereto, to the employee within a reasonable period of time.

The 1996 proposed regulations do not mandate any particular documentation or procedures that a plan administrator must use in order to reach a reasonable conclusion that a rollover contribution is a valid rollover contribution. The 1996 proposed regulations contain a series of examples to illustrate the types of documentation and procedures that would be sufficient to support a reasonable conclusion. In each example, the employee making the rollover contribution provides the plan administrator of the receiving plan with a letter from the plan administrator of the distributing plan stating that the distributing plan has received an IRS determination letter indicating that the distributing plan is qualified under section 401(a).

Several commentators stated that the examples in the 1996 proposed regulations appear to imply that the acknowledgment of the receipt of a favorable IRS determination letter by a distributing plan is a prerequisite to a plan administrator of a receiving plan reaching a reasonable conclusion that a rollover contribution is a valid rollover contribution. Commentators argued that the public policy goal of pension portability would be impeded if an eligible retirement plan is subject to complex administrative procedures when accepting rollover contributions. These concerns were addressed in the 1998 amendment to the proposed regulations implementing the congressional directive in section 1509 of TRA '97. That amendment clarifies that it is not necessary for a distributing plan to have a favorable IRS determination letter in order for a plan administrator of a receiving plan to reach a reasonable conclusion that a contribution is a valid rollover contribution. In addition, an example was added to the proposed regulations in which an employee does not provide a statement from the distributing plan administrator that the distributing plan has received a favorable IRS determination letter, but instead the employee provides a statement from the distributing plan administrator relating to the qualification of the distributing plan. In the preamble to the 1998 amendment to the proposed regulations, it is stressed that none of the examples in the proposed regulations are intended to describe the only types of information that a plan administrator can find to be sufficient and the examples are not intended to preclude reliance on other types of information, such as opinions or statements regarding the plan's qualification provided by appropriate professionals with expertise in plan qualification requirements.

One commentator stated that both Examples 1 and 3 in the proposed regulations, which provide that Employee A will not have attained age 70 1/2 by the end of the year in which the rollover contribution will occur, imply that if an employee were age 70 1/2 or older, a rollover option would be unavailable. This implication was not intended. The fact was included merely to illustrate the more common scenario of an employee who is under age 70 1/2 and rolls over a retirement plan distribution.

Some commentators proposed that guidance is needed regarding the procedures for correcting invalid rollover contributions. One commentator suggested that relief, similar to that provided to plans receiving invalid rollover contributions, should also be afforded to plans receiving assets and liability transfers in the event that a transferor's plan does not satisfy the qualification requirements under the Code. These comments will be taken into account in developing future guidance priorities.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of these regulations is Pamela R. Kinard, Office of the Associate Chief Counsel (Employee Benefits and Exempt Organizations), IRS. However, other personnel from the IRS and Treasury Department participated in their development.

Throughout this document, whenever “we” “us”, or “our” is used, we mean EPA.

The supplementary information is organized in the following order:

Each state has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring network, attainment demonstrations, and enforcement mechanisms.

Each state must formally adopt the control measures and strategies in the SIP after the public has had an opportunity to comment on them. They are then submitted to EPA as SIP revisions on which EPA must formally act.

Once these control measures and strategies are approved by EPA, after notice and comment, they are incorporated into the Federally approved SIP and are identified in Part 52 (Approval and Promulgation of Implementation Plans), Title 40 of the Code of Federal Regulations (40 CFR Part 52). The full text of the state regulation approved by EPA is not reproduced in its entirety in 40 CFR Part 52, but is “incorporated by reference”. This means that EPA has approved a given state regulation with a specific effective date. This format allows both EPA and the public to know which measures are contained in a given SIP, and insures that the State is enforcing the regulations. It also allows EPA and the public to take enforcement action, should a State not enforce its SIP-approved regulations.

The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally-approved SIPs, as a result of consultations between EPA and OFR.

We began the process of developing: (1) A revised SIP document for each state that would be IBR under the provisions of 1 CFR Part 51; (2) a revised mechanism for announcing EPA approval of revisions to an applicable SIP and updating both the IBR document and the CFR; and (3) a revised format of the “Identification of Plan” sections for each applicable subpart to reflect these revised IBR procedures. The description of the revised SIP document, IBR procedures, and “Identification of Plan” format are discussed in further detail in the May 22, 1997, Federal Register document.

The Federally-approved regulations, source-specific permits, and nonregulatory provisions (entirely or portions of) submitted by each state agency have been compiled by EPA into a “SIP compilation.” The SIP compilation contains the updated regulations, source-specific permits, and nonregulatory provisions approved by EPA through previous rulemaking actions in the Federal Register . The compilations are contained in three-ring binders and will be updated, primarily on an annual basis.

Each compilation contains three parts. Part one contains the regulations, part two contains the source-specific requirements that have been approved as part of the SIP and part three contains nonregulatory provisions that have been EPA approved. Each part consists of a table of identifying information for each SIP-approved regulation, each SIP-approved source-specific permit, and each nonregulatory SIP provision. In this action, EPA is publishing the tables summarizing Parts one and two for each State. The table of identifying information in the compilation corresponds to the table of contents published in 40 CFR Part 52 for these states. EPA will publish the summary list of Part Three SIP provisions for Virginia in a separate action. EPA Regional Offices have the primary responsibility for ensuring accuracy and updating the compilations.

EPA Region III developed and will maintain the compilation for Virginia. A copy of the full text of each state's regulatory and source-specific SIP compilation will also be maintained at the OFR and EPA's Air Docket and Information Center.

In order to better serve the public, EPA revised the organization of the “Identification of Plan” section and included additional information to clarify the enforceable elements of the SIP. The revised Identification of Plan section contains five subsections:

All revisions to the applicable SIP become Federally enforceable as of the effective date of the revisions to paragraphs (c), (d), or (e) of the applicable Identification of Plan section found in each subpart of 40 CFR Part 52.

To facilitate enforcement of previously approved SIP provisions and provide a smooth transition to the new SIP processing system, EPA retains the original Identification of Plan section, previously appearing in the CFR as the first or second section of Part 52 for each state subpart. After an initial two-year period, EPA will review its experience with the new system and enforceability of previously approved SIP measures and will decide whether or not to retain the Identification of Plan appendices for some further period.

On March 6, 1992, the Virginia State Assembly enacted Chapter 216—an act to amend Section 9-77.7, Code of Virginia, effective July 1, 1992. The amendment authorized reorganization of the Virginia Administrative Code (VAC), including reorganization of the air pollution control regulations. Beginning April 17, 1995, Virginia began publication of the air pollution control regulations in the new format. Virginia also announced the adoption of the new format for the Appendices, effective July 1, 1997. The final version of the Appendices were published in the May 26, 1997 Virginia Register of Regulations .

Public Hearings Held: December 18, 1997, in Richmond.

Under the revised VAC system, Title 9 is the designated title for provisions related to the Environment, while Agency Number 5 corresponds to the Virginia Department of Environmental Quality (DEQ), Bureau of Air Pollution Control. Hence, Virginia's air pollution control regulations are cited as 9 VAC 5-xxx-xxx. This citation system replaces System VR-120-01, the general cite for Virginia's regulations for the Control and Abatement of Air Pollution prior to July 1, 1992. When approved, the regulation numbering format for the Federally-enforceable Virginia SIP regulations would mirror those of the State-enforceable regulations, with some exceptions.

Because Virginia's air pollution control regulations are extensive, they are arranged in subgroups such as chapters, parts, articles, and sections under the 9 VAC 5 system. The Virginia regulations under VR-120-01 also were arranged in subgroups, but with different names. Here is a comparison chart:

Virginia Regulation 9 VAC 5 contains 10 chapters (10, 20, 30, 40, 50, 60, 70, 80, 160, and 170), as described below:  

Within 9 VAC 5 Chapter 40, there are two major parts— Special Provisions (Part I) and Emissions Standards (Part II). Part I consists of provisions covering the following topics:

Part II consists of articles which contain general provisions governing visible emissions and fugitive dust/emissions, open burning, mobile sources, and designated source categories. These articles are listed below:

Within each article, there are about 16 to 20 sections. The general section titles for the SIP-approved rules consist of the following topics:

Virginia has incorporated Appendices A through S under the old VR-120 format into the regulatory structure of the 9 VAC 5 format. The citation of the SIP-approved Appendices that are cited under the VR-120 format are redesignated as follows:

Virginia has added or revised certain definitions to reflect: (1) A restructuring of the Virginia Administrative Code: (2) the use of the Virginia Register to officially announce proposed and adopted Commonwealth rules and regulations; and (3) the creation of the Virginia Department of the Environment. These definitions are described below:

Any employee or other representative of the Virginia Department of Environmental Quality, as designated by the Director

Refers to the Director of the Virginia Department of Environmental Quality, replacing the old term Executive Director [of the Virginia State Air Pollution Control Board].

Chapter 1.2 (§ 9-6.15 et seq. ) of Title 9 of the Code of Virginia EPA's approval of the recodified Virginia air pollution control regulations also includes revisions to the text of definitions and regulations found in Chapters 10 through 200 to reflect: (1) References to revised regulatory citations described in the current Administrative Process Act, Virginia Register Act, and Virginia Air Pollution Control Law; and (2) references to the Department [of Environmental Quality] or Department Director

On June 7, 1999, Virginia submitted a revised and restructured numbering systems for 9 VAC 5 Chapter 80, Article 9 (permits for major sources and major modifications locating in nonattainment areas). This SIP revision submittal will restructure the following SIP-approved regulations:

Virginia's June 7, 1999 submittal which restructures the major new source and modification permitting requirements applicable to nonattainment areas consists of administrative and format changes; there are no substantive wording changes to the current federally-enforceable provisions.

Public Hearings held: December 4, 1998, in Richmond

In a separate action, EPA will review additional revisions to Virginia's administrative provisions (9 VAC 5-20 and 9 VAC 5-170) submitted on February 18, 1998 and March 4, 1998, as well as Part II of Virginia's general conformity provisions (9 VAC 5-160), submitted by Virginia on April 20, 1998.

EPA's action will have no adverse impact on the NAAQS for the various criteria pollutants governed by Virginia's revised rules. EPA concludes that the recodification of Virginia's regulations and revised administrative provisions have no direct impact on current ambient air quality. For the most part, EPA will be able to cite the same regulatory citations used by Virginia in the event of a federal enforcement action. Differences between the Federally enforceable Virginia SIP regulatory citations and those of the Virginia's which are not Federally enforceable are noted in the chart of regulations listed in revised 40 CFR § 52.2420(c).

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity.

The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information: (1) That are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1997, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1997 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law.

EPA is approving the recodified Virginia provisions submitted on January 13, 1998 and June 7, 1999 by the Virginia Department of Environmental Quality as revisions to the Virginia SIP. EPA is also revising the format of 40 CFR part 52 for materials submitted by Virginia that are incorporated by reference (IBR) into their respective SIPs.

EPA has reviewed the submitted revisions, but has not fully reviewed the substance of recodified regulations that were approved into the SIP in previous rulemaking actions. EPA is now merely approving the renumbering system submitted by Virginia. To the extent that we have issued any SIP calls to Virginia with respect to the adequacy of any of the rules subject to this recodification, we will continue to require Virginia to correct any such rule deficiencies despite our ap[proval of this recodification.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipate 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 SIP revision if adverse comments are filed. This rule will be effective on June 20, 2000 without further notice unless EPA receives adverse comment by May 22, 2000. 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.

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. 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).

For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely 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 (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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. 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 June 20, 2000. 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 to approve the recodification and associated administrative revisions of the Virginia Administrative Code into the Virginia SIP, as well as revise the format of 40 CFR part 52 for materials submitted by Virginia that are incorporated by reference may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The rules being approved into the California SIP include: LCAQMD Section (Rule) 226.5, Fire Season-Burn Ban; LCAQMD Section (Rule) 431.5, (Non-Agricultural Burning); LCAQMD Section (Rule) 433, (Exemption-Residential); Lake County Section (Rule) 1150, Wildland Vegetation Management Burning; and SJVUAPCD Rule 4202, Particulate Matter-Emission Rate. These rules were submitted by the California Air Resources Board (CARB) to EPA on July 23, 1999, March 26, 1990, March 10, 1998, February 7, 1989, and September 28, 1994, respectively.

On March 3, 1978, EPA promulgated a list of total suspended particulate (TSP) nonattainment areas under the provisions of the 1977 Clean Air Act, that included the San Joaquin Valley Air Basin (43 FR 8964; 40 CFR 81.305). On July 1, 1987 (52 FR 24672) EPA replaced the TSP standards with new PM standards applying only to PM up to 10 microns in diameter (PM-10). 1 On November 15, 1990, amendments to the 1977 CAA were enacted (Public Law 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671 q ). On the date of enactment of the 1990 CAA Amendments, PM-10 areas meeting the qualifications of section 107(d)(4)(B) of the Act were designated nonattainment by operation of law and classified as moderate or serious pursuant to section 188(a). Lake County was not among the areas designated nonattainment. On February 8, 1993, EPA classified four nonattainment areas as serious nonattainment, including the San Joaquin Valley Planning Area, which now comprises the SJVUAPCD.

Section 189(a) of the CAA requires moderate and above PM-10 nonattainment areas to adopt reasonably available control measures (RACM), including reasonably available control technology (RACT) for stationary sources of PM-10. Section 189(b) of the CAA requires serious nonattainment areas to adopt best available control measures (BACM) for significant sources of PM-10, including best available control technology (BACT). Therefore, SJVUAPCD must at a minimum meet the requirements of RACM. SJVUAPCD must also adopt BACM. However, EPA is deferring decision on the specific BACM requirements until EPA acts on SJVUAPCD's BACM plan  2 at a later date and will evaluate the rule by the requirements of RACM.

In response to section 110(a) and part D of the Act, the State of California submitted many PM-10 rules for incorporation into the California SIP, including the rules being acted on in this document. This document addresses EPA's direct-final action for the following:

LCAQMD Sections (Rules) 226.5, 431.5, 433, and 1150 were adopted September 13, 1988, June 13, 1989, July 15, 1997, and December 6, 1988, respectively; submitted by the State of California for incorporation into the SIP on July 23, 1999, March 26, 1990, March 10, 1998, and February 7, 1989, respectively; and found to be complete pursuant to EPA's completeness criteria that are set forth in 40 CFR part 51, appendix V  3 on August 24, 1999, June 20, 1990, May 21, 1998, and May 5, 1989, respectively.

SJVUAPCD Rule 4202, Particulate Matter-Emission Rate, was adopted December 17, 1992, submitted by the State of California for incorporation into the SIP on September 28, 1994, and found to be complete on November 22, 1994.

PM emissions can harm human health and the environment. These rules were adopted as part of LCAQMD and SJVUAPCD efforts to maintain the National Ambient Air Quality Standard (NAAQS) for PM-10. The following is EPA's evaluation and final action for these rules.

In determining the approvability of a PM-10 rule, EPA must evaluate the rule for consistency with the requirements of the CAA and EPA regulations, as found in section 110 and part D of the CAA and 40 CFR part 51 (Requirements for Preparation, Adoption, and Submittal of Implementation Plans). EPA must also ensure that rules are enforceable and strengthen or maintain the SIP's control strategy.

The statutory provisions relating to RACM/RACT and BACM/BACT are discussed in EPA's “General Preamble,” which give the Agency's preliminary views on how EPA intends to act on SIPs submitted under Title I of the CAA. See 57 FR 13498 (April 16, 1992), 57 FR 18070 (April 28, 1992) and 59 FR 41998 (August 16, 1994). In this rulemaking action, EPA is applying these policies to this submittal, taking into consideration the specific factual issues presented.

EPA previously reviewed rules from LCAQMD and SJVUAPCD and incorporated them into the federally approved SIP pursuant to section 110(k)(3) of the CAA.

There is currently no version of LCAQMD Section (Rule) 226.5, Fire Season-Burn Ban, in the SIP. This is a new rule that strengthens the SIP by prohibiting open burning from June 1 through the end of the fire season.

On October 23, 1989, EPA approved into the SIP a version of LCAQMD Section (Rule) 431.5, (Non-Agricultural Burning). Submitted Section (Rule) 431.5 replaces the SIP-approved rule and includes the following significant change that strengthens the SIP:

• Extends the prohibition against non-agricultural open burning from June 1 to the end of the fire season to include No-Burn Days designated by the APCO or by the CARB.

On October 23, 1989, EPA approved into the SIP a version of LCAQMD Section (Rule) 433, (Non-Agricultural Burning). Submitted Section (Rule) 433 replaces the SIP-approved rule and includes the following significant change that strengthens the SIP:

• Adds a prohibition against using “burn barrels” for residential open burning.

There is currently no version of LCAQMD Section (Rule) 1150, Wildland Vegetation Management Burning, in the SIP. This is a new rule that strengthens the SIP by regulating wildland vegetation management burning, including requiring a burn plan for over 20 acres.

On various dates, EPA approved into the SIP versions of Particulate Matter-Emission Rate rules for the eight counties that now comprise the SJVUAPCD. Submitted Rule 4202, Particulate Matter-Emission Rate, replaces these rules and includes no significant changes from the SIP versions from the eight counties. EPA has determined that submitted Rule 4202 meets the requirements of RACM.

EPA has evaluated the submitted rules and has determined that they are consistent with the CAA, EPA regulations, and EPA policy. Therefore, the following rules are being approved under section 110(k)(3) of the CAA as meeting the requirements of section 110(a) and part D:

• LCAQMD Section (Rule) 226.5, Fire Season-Burn Ban (submitted

July 23, 1999).

• LCAQMD Section (Rule) 431.5, (Non-Agricultural Burning) (submitted March 26, 1990).

• LCAQMD Section (Rule) 433, (Exemption-Residential) (submitted March 10, 1998).

• LCAQMD Section (Rule) 1150, Wildland Vegetation Management Burning (submitted February 7, 1989).

• SJVUAPCD Rule 4202, Particulate Matter-Emission Rate (submitted September 28, 1994).

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective June 20, 2000 without further notice unless the Agency receives relevant adverse comments by May 22, 2000.

If the EPA receives such comments, then EPA will publish a timely withdrawal informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this rule. Any parties interested in commenting on this rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on June 20, 2000 and no further action will be taken on the proposed rule.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. 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). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely 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 (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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. 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 June 20, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document wherever “we,” or “our” are used we mean EPA.

Our December 6, 1999 (64 FR 68034) rulemaking indicated that on November 3, 1995 (60 FR 55792) we approved revisions to Montana's prevention of significant deterioration (PSD) regulations. With the November 3, 1995 document we inadvertently codified the revisions into 40 CFR 52.1320(c)(42) in lieu of CFR 52.1370(c)(42). Our December 6, 1999 document indicated that we were removing these revisions from 40 CFR 52.1320(c)(42) and adding them to 40 CFR 52.1370(c)(42). However, when we published the December 6, 1999 rule, we did not realize that on June 29, 1999 (64 FR 34717) 40 CFR 52.1320 had been redesignated as 40 CFR 52.1322. Therefore, our December 6, 1999 document should have removed 40 CFR 52.1322(c)(42) and not 40 CFR 52.1320(c)(42).

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because we are merely correcting an incorrect citation in a previous action. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B).

Under Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of governments, as specified by Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This technical correction action does not involve technical standards; 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. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act (5 U.S.C. 801 et seq. ), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA had made such a good cause finding, including the reasons therefore, and established an effective date of April 21, 2000. 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 correction to the identification of plan for Missouri is not a “major rule” as defined by 5 U.S.C. 804(2).