This rule is issued under Marketing Agreement No. 121 and Order No. 915, both as amended (7 CFR part 915), regulating the handling of avocados grown in South Florida, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (Department) 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, Florida avocado handlers 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 avocados beginning April 1, 2000, 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 the Secretary 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 the Secretary 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 the Secretary'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 increases the assessment rate established for the Committee for the 2000-2001 and subsequent fiscal periods from $0.16 per 55-pound bushel container or equivalent to $0.19 per 55-pound bushel container or equivalent of avocados.

The Florida avocado marketing order provides authority for the Committee, with the approval of the Department, 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 Florida avocados. 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 1999-2000 and subsequent fiscal periods, the Committee recommended, and the Department approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other information available to the Secretary.

The Committee met on March 8, 2000, and unanimously recommended 2000-2001 expenditures of $186,333 and an assessment rate of $0.19 per 55-pound bushel container or equivalent of avocados. In comparison, last year's budgeted expenditures were $164,335. The assessment rate of $0.19 is $0.03 higher than the rate currently in effect.

The Florida Lime and the Florida Avocado Administrative Committees share certain costs (staff, office space, and equipment) for economy and efficiency (7 CFR parts 911 and 915). Each Committee's share of these costs is based upon the amount of work performed and time devoted to administration. To reflect its increased share of the workload and resources, and Avocado Administrative Committee needs to fund a greater share of the costs. An increased budget for avocados is needed to accomplish this.

The major expenditures recommended by the Committee for the 2000-2001 year include $69,000 for salaries, $35,000 for national enforcement, $20,000 for research, $14,898 for employee benefits, and $13,782 for insurance and bonds. Budgeted expenses for these items in 1999-2000 were $46,000, $27,000, $39,500, $10,040, and $8,955, respectively.

The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of Florida avocados. Commodity shipments for the year are estimated at 900,000 55-pound bushel containers, which should provide $171,000 in assessment income. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, should be adequate to cover budgeted expenses. Funds in the reserve (currently $174,431) will be kept within the maximum permitted by the order (approximately three fiscal periods' expenses, § 915.41(a)(2)).

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

Although this assessment rate will be in effect 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 the Department. Committee meetings are open to the public and interested persons may express their views at these meetings. The Department 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 2000-2001 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by the Department.

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 141 avocado producers in the production area and approximately 49 avocado handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $500,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.

The average grower price for fresh avocados during the 1998-99 season was $17.90 per 55-pound bushel box or equivalent for all domestic shipments and the total shipments were 890,859 bushels. Approximately 10 percent of all handlers handled 90 percent of the Florida avocado shipments. Many avocado handlers ship other tropical fruit and vegetable products, which are not included in the Committee's data but would contribute further to handler receipts.

Using these prices, about 90 percent of avocado handlers could be considered small businesses under the SBA definition. The majority of Florida avocado producers also may be classified as small entities.

This rule increases the assessment rate established for the Committee and collected from handlers for the 2000-2001 and subsequent fiscal periods from $0.16 per 55-pound bushel container or equivalent to $0.19 per 55-pound bushel container or equivalent of avocados. The Committee unanimously recommended 2000-2001 expenditures of $186,333 and an assessment rate of $0.19 per 55-pound bushel container or equivalent. The assessment rate of $0.19 is $0.03 higher than the 1999-2000 rate. The quantity of assessable avocados for the 2000-2001 season is estimated at 900,000 55-pound bushel containers. Thus, the $0.19 rate should provide $171,000 in assessment income. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, should be adequate to cover budgeted expenses.

The major expenditures recommended by the Committee for the 2000-2001 fiscal year include $69,000 for salaries, $35,000 for national enforcement, $20,000 for research, $14,898 for employee benefits, and $13,782 for insurance and bonds. Budgeted expenses for these items in 1999-2000 were $46,000, $27,000 $39,500, $10,040, and $8,955, respectively.

The Florida Lime and the Florida Avocado Administrative Committees share certain costs (staff, office space, and equipment) for economy and efficiency (7 CFR parts 911 and 915). Each Committee's share of these costs is based upon the amount of work performed and time devoted to administration. To reflect its increased share of the workload and resources, the Avocado Administrative Committee needs to fund a greater share of the costs. An increased budget for avocados is needed to accomplish this.

The Committee reviewed and unanimously recommended 2000-2001 expenditures of $186,333 which included increases in administrative and office salaries, and national enforcement. Prior to arriving at this budget, the Committee considered information from various sources, such as the Committee's Budget Subcommittee. Alternative expenditure levels were discussed. However, the Committee ultimately determined that the recommended expenditures were appropriate to reflect its increased share of the workload and resource demands. The assessment rate of $0.19 per 55-pound bushel container or equivalent of assessable avocados was then determined by dividing the total recommended budget by the quantity of assessable avocados, estimated at 900,000 55-pound bushel containers or equivalents for the 2000-2001 fiscal year. This is approximately $11,000 below the anticipated expenses, which the Committee determined to be acceptable.

A review of historical information and preliminary information pertaining to the upcoming fiscal year indicates that the average grower price for the 2000-2001 season could be close to $17.90 per 55-pound bushel container or equivalent of avocados. Therefore, the estimated assessment revenue for the 2000-2001 fiscal year as a percentage of total grower revenue could be one percent.

This action increases 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 meeting was widely publicized throughout the Florida avocado industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the March 8, 2000, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

This rule imposes no additional reporting or recordkeeping requirements on either small or large Florida avocado 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.

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

A proposed rule concerning this action was published in the Federal Register on April 17, 2000 (65 FR 20382). Copies of the proposed rule were also mailed or sent via facsimile to all Florida avocado handlers. Finally, the proposal was made available through the Internet by the Office of the Federal Register. A 30-day comment period ending May 17, 2000, was provided for interested persons to respond to the proposal. No comments were received.

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.

Pursuant to 5 U.S.C. 553, it also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) Handlers are already receiving 2000-2001 crop avocados from growers;(2) the fiscal period began April 1, 2000, and the marketing order requires that the assessment rate apply for each fiscal period to all avocados handled during such fiscal period; (3) the Committee needs sufficient funds to pay its expenses which are incurred on a continuous basis; (4) handlers are aware of this rule which was unanimously recommended by the Committee at a public meeting, and is similar to other assessment rate actions issued in past years; and (5) a 30-day comment period was provided for in the proposed rule and no comments were received.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 777-200 series airplanes was published in the Federal Register on November 26, 1999 (64 FR 66426). That action proposed to require one-time inspections to detect cracking of the aft wheel well bulkhead, and corrective actions, if necessary. That action also proposed to require modification of the aft wheel well bulkhead. For certain airplanes, that action also proposed to require a one-time visual inspection to detect excess sealant covering the outer flange of the side fitting and lower chord and splice area of the aft wheel well bulkhead, and corrective actions, if necessary.

Since the issuance of the notice of proposed rulemaking (NPRM), the FAA has reviewed and approved Boeing Service Bulletin 777-53A0015, Revision 1, dated March 2, 2000. (The original issue of the service bulletin, dated June 17, 1999, is referenced in the NPRM as the appropriate source of service information for accomplishment of the proposed actions.) The procedures described in Revision 1 of the service bulletin are similar to those in the original issue, and Revision 1 adds no new airplanes to the effectivity listing. Therefore, paragraphs (a), (b), and (d) of this final rule have been revised to reference Revision 1 as the appropriate source of service information for accomplishment of the actions required by those paragraphs. In addition, a new “NOTE 3” has been added to this final rule to specify that actions accomplished prior to the effective date of this AD in accordance with Boeing Alert Service Bulletin 777-53A0015, dated June 17, 1999, are considered acceptable for compliance with this AD.

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

On behalf of one of its members, the Air Transport Association of America (ATA) comments that none of the airplanes operated by that member would be affected by the proposal. The ATA offers no further comment and makes no request.

One commenter requests that the FAA revise paragraph (a)(2) of the proposed rule to specify that removal of excess sealant from the aft wheel well bulkhead area is not required until accomplishment of the inspections specified in paragraph (b) of the proposed rule. [Paragraph (a)(2) of the proposed rule states that, if any excess sealant is found, it must be removed from the aft wheel well bulkhead area prior to further flight.] The commenter points out that the excess sealant is of concern because it can impede the inspections to detect fatigue cracking that are specified in paragraph (b) of the proposed rule, but the excess sealant on its own poses no threat to the continued safe operation of an airplane.

The FAA does not concur with the commenter's request. The compliance time is the same for the requirements of both paragraphs (a) and (b). Therefore, the FAA expects the requirements of these paragraphs will be accomplished at the same time. No change to the final rule is necessary in this regard.

One commenter requests that the FAA revise the applicability of the proposed rule to delete the airplane having line number 1. The commenter states that this airplane is owned by the manufacturer and is operated in accordance with an experimental airworthiness certificate. The commenter asserts that this airplane does not accumulate enough flight cycles to develop significant fatigue cracking of the aft wheel well bulkhead. The commenter also states that, if the airplane is sold, the manufacturer will incorporate a design change equivalent to the requirements of this AD prior to delivery. The commenter claims that inclusion of the subject airplane in the applicability of this AD will “introduce additional unnecessary complications in obtaining certification of this airplane.”

The FAA does not concur with the commenter's request. Though the airplane is operated in accordance with an experimental airworthiness certificate, the airplane is still subject to the unsafe condition addressed in this AD. Based on the current utilization of the airplane, the FAA acknowledges that it may be some time before the airplane will be required to be in compliance with this AD. However, eventually, the airplane must be inspected and modified in accordance with this AD, or modified with a design change that will provide an equivalent level of safety. Any design change that the manufacturer develops in lieu of the actions required by this AD must be approved as an alternative method of compliance in accordance with paragraph (e) of this AD. No change to the final rule is necessary in this regard.

One commenter requests that the compliance time stated for removal of excess sealant specified in paragraph (d) of the proposed rule be revised from “prior to further flight” to “prior to the threshold specified for fatigue inspections in Section 9 of the 777 Maintenance Planning Document [MPD]. . . .” The commenter states that the removal of the excess sealant in the area described in paragraph (d) of the proposed rule is intended to allow the fatigue inspections specified in Section 9 of the MPD to be properly conducted. The commenter states that the paragraph, as worded in the proposed rule, “can be interpreted to mean that the sealant must be removed to facilitate fatigue inspection of these areas at 11,000 flights.” Further, the commenter states, “There is no data to suggest that these areas would be subject to significant fatigue cracking earlier than the threshold specified in the MPD (currently 30,000 flights for all Structures items).”

The FAA does not concur with the commenter's request. Excess sealant may impede detection of unexpected damage during general visual inspections performed as part of routine maintenance. Thus, the FAA finds it is necessary to require the sealant to be removed prior to further flight after accomplishment of the modification in accordance with paragraph (b) of this AD. No change to the final rule is necessary in this regard.

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

There are approximately 109 Boeing Model 777-200 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 35 airplanes of U.S. registry will be affected by this AD.

For all airplanes, it will take approximately 2 work hours per airplane to accomplish the required general visual and HFEC inspections at an average labor rate of $60 per work hour. Based on these figures, the cost impact of these inspections on U.S. operators is estimated to be $4,200, or $120 per airplane.

For all airplanes, it will take approximately 28 work hours per airplane to accomplish the required modification at an average labor rate of $60 per work hour. Required parts will cost approximately $6,013 per airplane. Based on these figures, the cost impact of the modification on U.S. operators is estimated to be $269,255, or $7,693 per airplane.

For certain airplanes, it will take 3 work hours per airplane to accomplish the inspection to detect excess sealant at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this inspection on U.S. operators is estimated to be $180 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to AlliedSignal Inc. ALF502R and LF507 series turbofan engines was published in the Federal Register on August 5, 1999 (64 FR 42619). That action proposed to require revisions to Chapter 5, Airworthiness Limitations section, of the Honeywell International Inc. ALF502R and LF507 engine manual, and, for air carriers, their approved continuous airworthiness maintenance program. Honeywell International Inc. (formerly AlliedSignal Inc.), the manufacturer of ALF502R and LF507 series turbofan engines, has provided the FAA with a detailed proposal that identifies and prioritizes the critical rotating engine parts with the highest potential to hazard the airplane in the event of failure, along with instructions for enhanced, focused inspection methods. These enhanced inspections will be conducted at piece-part opportunity, as defined in this AD, rather than at specific inspection intervals.

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

The commenter supports the rule as proposed.

The FAA notes that several different companies have held the type certificate for these engine models. In order to make certain that all manuals are revised to include the enhanced inspection program, not just the manuals that bear the name of the current holder of the type certificate, the FAA has added the names of the former type certificate holders to paragraph (a). After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with this change. The FAA has determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

The FAA estimates that 200 engines installed on airplanes of US registry would be affected by this AD, that it would take approximately 56 work hours per engine to accomplish the required actions. The average labor rate is $60 per work hour. Based on these figures, the total cost impact of the AD on US operators is estimated to be $672,000.

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

For the reasons discussed above, I certify that this regulation (1) IS not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

On April 19, 2000, the Pension and Welfare Benefits Administration published in the Federal Register (65 FR 21068) amendments to Department of Labor regulations relating to the annual reporting and disclosure requirements under part 1 of Title I of ERISA. In publishing these regulations, the Department amended the summary annual report forms at 29 CFR 2520.104b-10(d)(3) and (4), but inadvertently omitted a change to reflect the fact that under the ERISA Filing Acceptance System (EFAST) annual returns/reports are filed with the Pension and Welfare Benefits Administration rather than the Internal Revenue Service. A technical correction amendment to the final rule is, therefore, necessary.

On July 29, 1982, the Secretary of the Interior conditionally approved the Indiana program. You can find background information on the Indiana program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the July 26, 1982, Federal Register (47 FR 32107). You can find later actions on the Indiana program at 30 CFR 914.10, 914.15, 914.16, and 914.17.

On February 4, 2000, the Indiana Department of Natural Resources, Division of Reclamation (DoR), sent us a copy of revised and recodified procedural rules for adjudicatory proceedings under the Indiana program (Administrative Record No. IND-1685). These procedural rules are codified in the Indiana Administrative Code (IAC) at 312 IAC 3-1 and provide procedures for administrative review proceedings held before the Division of Hearings, Natural Resources Commission. The DoR submitted the revised procedural rules in response to a required program amendment that we codified at 30 CFR 914.16(ff) on October 20, 1994 (59 FR 52906).

We announced receipt of the amendment in the March 7, 2000, Federal Register (65 FR 11950). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. The public comment period closed on April 6, 2000. Because no one requested a public hearing or meeting, we did not hold one.

Following, under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are our findings concerning the amendment.

The Indiana rules at 312 IAC 3-1 contain procedures for adjudicatory proceedings held before the Indiana Natural Resources Commission (commission) and its administrative law judges. The rules provide procedures for filing and pursuing an administrative review of a determination by the Indiana Department of Natural Resources (department) under the Indiana program. These rules are also applicable to administrative review of decisions by the department under other State programs and of licensing and disciplinary actions by the Board of Certification of Professional Geologists. We are making findings only on those portions of the recodified rules that pertain to administrative review under the Indiana program. The term “director” in Indiana's rules refers to the “director of the Indiana Department of Natural Resources.”

We previously approved procedural rules at 310 IAC 0.6-1 for adjudicatory proceedings under the Indiana program. In 1996, the commission repealed the procedural rules at 310 IAC 0.6-1 and revised and recodified their substantive requirements at 312 IAC 3-1. The department is responsible for implementing the rules under Title 310 of the IAC. The commission is responsible for implementing the rules under Title 312 of the IAC. We find that the commission's recodification of its procedures for conducting adjudicatory proceedings for the Indiana program under its rules at Title 312 is appropriate and does not make Indiana's rules for administrative review proceedings less effective than the Federal regulations at 43 CFR Part 4.

We previously approved Indiana's rule at 310 IAC 0.7-3-5 concerning delegations for programs administered by the DoR. This rule was referenced in the procedural rules at 310 IAC 0.6-1-3 and was specific to the Indiana program. In 1996, the commission repealed this rule. There is no Federal counterpart to Indiana's rule at 310 IAC 0.7-3-5, and we find that the commission's repeal of it does not make Indiana's rules less effective than the Federal regulations.

Indiana's previously approved provisions at 310 IAC 0.6-1-1 (Definitions), 0.6-1-2 (Applicability of rule), and 0.6-1-3 (Review of actions taken by delegates of natural resources commission) were revised and recodified at 312 IAC 3-1-1. Subsection (a) specifies that 312 IAC 3-1 controls proceedings governed by Indiana Code (IC) 4-21.5 (administrative orders and procedures) for which the commission, or an administrative law judge for the commission, is the ultimate authority. Subsection (b) allows an affected person to apply for administrative review under IC 4-21.5 and 312 IAC 3-1 if he or she is aggrieved by a determination of the director; a delegate of the director; a board, other than the commission when acting as the ultimate authority; a delegate of the board, other than an administrative law judge; or a person delegated authority under 312 IAC 2-2. Indiana's rule at 312 IAC 2-2 governs delegations by the Natural Resources Commission. Subsection (c) defines “division director” as the director of the division of hearings of the commission.

While there is no direct Federal counterpart to 312 IAC 3-1-1, we find that it is not inconsistent with the Federal regulations at 43 CFR Part 4. The Federal regulations at 43 CFR Part 4 provide procedures and practices for administrative review of most decisions made under SMCRA and the Federal Regulations at 30 CFR Parts 700 through 865.

The definitions at 310 IAC 0.6-1-1 for the terms “advisory council”; “Commission”; “Delegate”; “Department”; “Director”; “Hearing commissioner”; and “Objections hearing” were not recodified at 312 IAC 3-1. Because the Federal regulations do not contain similar definitions, we find that the removal of these definitions will not make Indiana's rules less effective than the Federal regulations.

Indiana's previously approved provisions at 310 IAC 0.6-1-2.5 were revised and recodified at 312 IAC 3-1-2. Subsection (a) designates the commission as the ultimate authority for the department and any department board except as provided in subsection (b). Subsection (b) designates an administrative law judge as the ultimate authority for an administrative review under: (1) an order under Indiana's Surface Coal Mining and Reclamation Act at IC 14-34, except for a proceeding concerning the approval or disapproval of a permit application or permit renewal under IC 14-34-4-13 or for suspension or revocation of a permit under IC 14-34-15-7; (2) an order granting or denying temporary relief under IC 14-34 or an order voiding, terminating, modifying, staying, or continuing an emergency or temporary order under IC 4-21.5-4; and (3) an order designated as a final order in 312 IAC 3-1-9.

While there is no Federal counterpart to 312 IAC 3-1-2, we find that it is not inconsistent with the Federal regulations concerning administrative review at 43 CFR Part 4, and we are approving it.

Indiana's previously approved provisions at 310 IAC 0.6-1-4 (Petition for administrative review; notice of appointment of administrative law judge) were revised and recodified at 312 IAC 3-1-3. Subsection (a) provides that a proceeding before the commission under IC 4-21.5 is initiated when one of the following is filed with the Division of Hearings: a petition for review under IC 4-21.5-3-7; a complaint under IC 4-21.5-3-8; a request for temporary relief under IC 14-34; a request to issue an emergency or other temporary order under IC 4-21.5-4 or for review of an order issued under IC 4-21.5-4; an answer to an order to show cause under 312 IAC 3-1-5; or a referral by the director of a petition for and challenge to litigation expenses under 312 IAC 3-1-13(g). Subsection (b) requires the division director to appoint an administrative law judge to conduct the proceeding as soon as practicable after the initiation of administrative review under subsection (a).

Although there is no direct counterpart to 312 IAC 3-1-3 in SMCRA or the Federal regulations, we find that its provisions are consistent with the general requirements of the Federal regulations at 43 CFR Part 4.

Indiana's previously approved provisions at 310 IAC 0.6-1-5(a) were revised and recodified at 312 IAC 3-1-4. Subsection (a) specifies that except as provided in subsection (b) and in 312 IAC 3-1-5 and 13, the matters contained in a pleading described in 312 IAC 3-1-3(a) are considered automatically denied by any other party. Subsection (b) provides that a party wishing to assert an affirmative defense, counterclaim, or cross-claim must do so, in writing, and have the document filed and served no later than the initial prehearing conference, unless otherwise ordered by the administrative law judge.

Although there is no direct counterpart to 312 IAC 3-1-4 in SMCRA or the Federal regulations, we find that its provisions are consistent with the general requirements of the Federal regulations at 43 CFR Part 4.

Indiana's previously approved provisions at 310 IAC 0.6-1-5(b) through (j) were revised and recodified at 312 IAC 3-1-5. Subsection (a) provides that 312 IAC 3-1-5 governs the suspension or revocation of a permit under IC 14-34-15-7. Subsection (b) requires the director (or a delegate of the director) to issue, to the permittee, an order of permit suspension or revocation under IC 14-34-15-7 if the director determines that a permit issued under IC 13-4.1, IC 14-34, or 310 IAC 12 should be suspended or revoked. The order of permit suspension or revocation must state that: (1) a pattern of violations of IC 13-4.1, IC 14-34, 310 IAC 12, or any permit condition required by IC 13-4.1, IC 14-34, or 310 IAC 12 exists and (2) the violations are either willfully caused by the permittee, or caused by the permittee's unwarranted failure to comply with IC 13-4.1, IC 14-34, 310 IAC 12, or any permit condition required by IC 13-4.1, IC 14-34, or 310 IAC 12. Subsection (b) further provides that, for the purposes of this subsection, the unwarranted failure of the permittee to pay any fee required under IC 13-4.1, IC 14-34, or 310 IAC 12 constitutes a pattern of violations and requires the issuance of an order of permit suspension or revocation. Subsection (c) requires the director to serve an order of permit suspension or revocation by certified mail or personal delivery. Subsection (c) also clarifies that an order of permit suspension or revocation is governed by IC 4-21.5-3-6. Subsection (d) requires a permittee, who wants to contest an order of permit suspension or revocation, to file a petition for review under IC 4-21.5-3-7 within thirty days of his or her receipt of the order of permit suspension or revocation. Subsection (d) also specifies the kind of information that must be included in a petition for review, including whether the permittee wants a hearing on the order of permit suspension or revocation. Subsection (e) provides that if a petition for review is not filed by the permittee under subsection (d), the order of permit suspension or revocation will become an effective and final order of the commission without a proceeding under IC 14-34-15-7(c). Subsection (f) provides that if a petition for review is filed by the permittee under subsection (d) and a hearing on the order is sought by the permittee, the matter will be assigned to an administrative law judge for a proceeding under IC 4-21.5-3. Subsection (f) also sets out the burden of proof standards for the hearing. The director has the burden of going forward with evidence demonstrating that the permit in question should be suspended or revoked. The director satisfies the burden by establishing a prima facie case that a pattern of violations exists or has existed and the violations were willfully caused by the permittee or caused by the unwarranted failure of the permittee to comply with any requirements of IC 13-4.1, IC 14-34, 310 IAC 12, or any permit conditions required under IC 13-4.1, IC 14-34, or 310 IAC 12. If the director demonstrates that the permit should be suspended or revoked, the permittee has the ultimate burden of persuasion to show cause why the permit should not be suspended or revoked. A permittee may not challenge the fact of any violation that is the subject of a final order of the director.

Subsection (g) provides that the administrative law judge will issue a nonfinal order if he or she determines that a pattern of violations exists or has existed. In this nonfinal order, the administrative law judge must consider the factors contained in 310 IAC 12-6-6.5. The administrative law judge must find that sufficient violations occurred to establish a pattern. The nonfinal order must comply with the requirements of IC 4-21.5-3-27(a) through IC 4-21.5-3-27(d) and IC 4-21.5-3-27(g). The administrative law judge may, at any time before the conclusion of the hearing, allow the parties to submit briefs and proposed findings. Subsection (h) requires the administrative law judge to submit the nonfinal order to the commission within ten days following the date that the hearing is closed or within ten days of the receipt of the permittee's petition for review submitted under subsection (d) if no hearing is requested by any party and it is determined that no hearing is necessary. Subsection (i) provides that a party must object to the findings and nonfinal order in writing in order to preserve for judicial review an objection to the nonfinal order of an administrative law judge. In its written objection, a party must identify the bases of the objection. The objection must be filed with the commission within 15 days after the findings and nonfinal order are served on the party. Subsection (j) requires the commission to enter a final order affirming, modifying, or vacating the administrative law judge's order of permit suspension or revocation. The final order of the commission must be entered within 45 days following the issuance of the nonfinal order. The final order of the commission must be issued 60 days following the date that the hearing record is closed by the administrative law judge or 60 days following the administrative law judge's receipt of the permittee's petition for review filed under subsection (d) if no hearing was requested by any party and the administrative law judge determined that no hearing was necessary. Subsection (k) provides that the minimum suspension period is three working days unless the commission finds that imposition of the minimum suspension period would result in manifest injustice and would not further the purposes of IC 13-4.1, IC 14-34, 310 IAC 12, or any permit condition required by IC 13-4.1, IC 14-34, or 310 IAC 12. The commission may impose preconditions that the permittee must satisfy before the suspension is lifted. Subsection (l) requires the commission to serve the parties with a copy of the final order. A party may then apply for judicial review under IC 4-21.5.

The commission did not recodify the provision at 310 IAC 0.6-1-5(g) that: “Under IC 13-4.1-11-6(c), the administrative law judge shall issue the findings and a nonfinal order within sixty (60) days after conclusion of the hearing.” We disapproved this provision in a previous final rule on October 20, 1994 (59 FR 52906), and required Indiana to delete the provision from its program (30 CFR 914.16(ff)). As noted in subsection (h), the administrative law judge must now submit a nonfinal order to the commission within ten days after the hearing closes. This will allow the commission sufficient time to issue the final order within the 60-day time period required by IC 14-34-15-7(h).

We find that the provisions at 312 IAC 3-1-5 contain adjudicatory proceedings for the suspension and revocation of permits that are the same as or similar to those contained in the Federal regulations at 30 CFR Part 843 and 43 CFR 4.1190 through 4.1196. We also find that the changes made to the requirements recodified at 312 IAC 3-1-5(h) and (j) satisfy the required amendment at 30 CFR 914.16(ff), and we are removing it.

Indiana's previously approved provisions at 310 IAC 0.6-1-6 were revised and recodified at 312 IAC 3-1-6. Subsection (a) provides for the amendment of petitions for administrative review filed under IC 4- 21.5-3-7. The various types of petitions that may to be amended are described in 312 IAC 3-1-3(a). A pleading may be amended once as a matter of course before a response is filed, but not later than the initial prehearing conference or 15 days before a hearing, unless otherwise allowed by the administrative law judge. Subsection (b) specifies the circumstances under which amendments in a pleading relate back to the date of the original pleading.

While there is no direct Federal counterpart, we find that 312 IAC 3-1-6 is not inconsistent with the Federal regulations at 43 CFR part 4, and we are approving it.

Indiana's previously approved provisions at 310 IAC 0.6-1-7 were revised and recodified at 312 IAC 3-1-7. Subsection (a) requires documents to be filed with the administrative law judge and served on all other parties. Subsection (b) allows the filing of a document with the administrative law judge to be performed by personal delivery, first class mail, certified mail, interoffice mail, fax, or electronic mail. Subsection (c) requires service of a document to be made upon the attorney or other authorized representative when a party is represented by an attorney or another authorized representative. If a party is not represented by others, service must be made upon the individual. Subsection (d) provides that filing or service by properly addressed, prepaid first class or certified mail is complete upon deposit in the United States mail. Filing or service by another method is complete upon receipt. Subsection (e) specifies that 312 IAC 3-1-7 does not modify the time in which a party may file objections under IC 4-21.5-3-29 or a petition for judicial review under IC 4-21.5-5.

We find that 312 IAC 3-1-7 contains procedures for filing and service of documents that are no less effective than the Federal regulations at 43 CFR 4.1107 and 4.1109, and we are approving it.

Indiana's previously approved provisions at 310 IAC 0.6-1-8 were revised and recodified at 312 IAC 3-1-8. Subsection (a) provides that an automatic change of an administrative law judge may be obtained under 312 IAC 3-1-8. Subsection (b) provides that a party may file a written motion for change of the administrative law judge without specifically stating the grounds for the request. A party must file the motion within ten days after the appointment of an administrative law judge. Subsection (c) requires the administrative law judge to grant the motion filed under subsection (b) and to notify the division director. The division director must inform the parties of the names of two other individuals from whom a substitute administrative law judge may be selected. A party who is opposed to the party who filed the motion under subsection (b) may, within five days, select one of the individuals named by the division director to serve as the substitute administrative law judge. The division director must select a new administrative law judge if the opposing party does not make a timely selection. Subsection (d) specifies under what circumstances an automatic change of administrative law judges under this section does not apply. This section does not apply where a previous change of administrative law judge has been requested under this section. It does not apply to a proceeding under IC 4-21.5-4 or to temporary relief under IC 13-4.1. It does not apply if an administrative law judge has issued a stay or entered an order for disposition of all or a portion of the proceeding. Finally it does not apply if the commission orders a suspension of the section because of inadequate staffing.

There is no direct counterpart Federal regulation. However, we find that 312 IAC 3-1-8 is not inconsistent with the general rules relating to procedures and practice at 43 CFR part 4, and we are approving it.

Indiana's previously approved provisions at 310 IAC 0.6-1-9 (Dismissals) were revised and recodified at 312 IAC 3-1-9. Subsection (a) allows an administrative law judge to enter a final order of dismissal if the party who initiated administrative review requests the proceeding be dismissed. Subsection (b) allows an administrative law judge, on the motion of the administrative law judge or the motion of a party, to enter a proposed order of default or proposed order of dismissal under IC 4-21.5-3-24, if at least one of the following applies: (1) A party fails to attend or participate in a prehearing conference, hearing, or other stage of the proceeding; (2) the party responsible for taking action does not take action on a matter for a period of at least 60 days; (3) the person seeking administrative review does not qualify for review under IC 4-21.5-3-7; or (4) a default or dismissal could be entered in a civil action. Subsection (c) allows a party to file a written motion requesting the order not be imposed. The party must file the motion within seven days after service of a proposed order of default or dismissal, or within a longer period allowed by the proposed order. During the time within which a party may file a written motion, the administrative law judge may adjourn the proceedings or conduct them without participation of the party against whom a proposed default order was issued. The administrative law judge must consider the interest of justice and the orderly and prompt conduct of the proceeding before taking either action. Subsection (d) requires the administrative law judge to issue an order of default or dismissal if the party fails to file a written motion under subsection (c). If the party has filed a written motion under subsection (c), the administrative law judge may either enter or refuse to enter an order of default or dismissal. Subsection (e) requires the administrative law judge, after issuing an order of default, but before issuing a final order or disposition, to conduct any action necessary to complete the proceeding without the participation of the party in default and determine all issues in the adjudication, including those affecting the defaulting party. The administrative law judge may conduct proceedings under IC 4-21.5-3-23 to resolve any issue of fact. Subsection (f) requires an administrative law judge to approve an agreed order entered into by the parties if it is clear and concise and lawful. Subsection (g) allows the secretary of the commission to affirm the entry of an agreed order approved by the administrative law judge under subsection (f). Subsection (h) provides that a final order entered under this section is made with prejudice unless otherwise specified in the order. A person may seek judicial review of the order under IC 4-21.5-5.

While there is no direct counterpart Federal regulation, we find that 312 IAC 3-1-9 is not inconsistent with the general rules relating to procedures and practice at 43 CFR Part 4. Therefore, we are approving it.

Indiana's previously approved provisions at 310 IAC 0.6-1-10 (Applicability of rules of trial procedure) were revised and recodified at 312 IAC 3-1-10. This rule allows the administrative law judge to apply the Indiana Rules of Trial Procedure or the Indiana Rules of Evidence as long as they are not inconsistent with IC 4-21.5 or 312 IAC 3-1.

We find that there is no Federal counterpart to Indiana's proposed rule. However, we are approving 312 IAC 3-1-10 to the extent that the rule allows an administrative law judge to apply provisions of the Indiana Rules of Trial Procedures and Indiana Rules of Evidence that are not inconsistent with SMCRA and the Federal regulations.

Indiana's previously approved provisions at 310 IAC 0.6-1-11 (Conduct of hearing) were revised and recodified at 312 IAC 3-1-11. Subsection (a) requires an administrative law judge to govern the conduct of a hearing and the order of proof. Subsection (b) requires the administrative law judge to provide for a separation of witnesses on a motion by a party before the commencement of testimony.

We find that 312 IAC 3-1-11 is not inconsistent with the Federal regulations at 43 CFR 4.1121 concerning powers of administrative law judges. Therefore, we are approving the recodification and revision of this section.

At 312 IAC 3-1-12, the commission revised and recodified Indiana's previously approved provisions from 310 IAC 0.6-1-12 (Recommendations of an administrative law judge; objections). Subsection (a) provides that 312 IAC 3-1-12 governs the disposition of objections under IC 4-21.5-3-29. Subsection (b) requires a party, who wishes to contest whether objections provide reasonable particularity, to move, in writing, for a more definite statement. The administrative law judge may rule upon a motion filed under this subsection and any other motion filed subsequent to the entry of the nonfinal order, and enter an appropriate order (including removal of an item from the commission agenda). Subsection (c) requires that parties schedule objections for argument before the commission simultaneously with the presentation by the administrative law judge of findings, conclusions, and a nonfinal order. Unless otherwise ordered by the commission, argument must not exceed 10 minutes for each party and 20 minutes for each side. Subsection (d) allows a nonparty to file a brief with the commission ten days before oral argument is scheduled on objections filed under subsection (c). A copy of the brief must be served upon each party. The brief must not be more than five pages long and cannot include evidentiary matters outside the record. Unless otherwise ordered by the commission, a nonparty may also present oral argument for not more than five minutes in support of the brief. If more than one nonparty files a brief, the administrative law judge must order the consolidation of briefs if reasonably necessary to avoid injustice to a party. A nonparty who has not filed a brief at least ten days before oral argument is first scheduled on objections may participate in the argument upon the stipulation of the parties. Upon the written request of a party, subsection (e) requires the commission to provide the services of a stenographer or court reporter to record the argument. This request must be filed at least 48 hours before an oral argument to consider objections. Subsection (f) allows the secretary of the commission, as the commission's designee under IC 4-21.5-3-28(b), to affirm the findings and nonfinal order if objections are not filed. The secretary has exclusive jurisdiction to affirm, remand, or submit to the commission for final action, any findings and nonfinal order subject to this subsection. No oral argument will be conducted under this subsection unless ordered by the secretary. Subsection (g) allows a party to move to strike all or any part of objections, a brief by a nonparty, or another pleading under 312 IAC 3-1-12. The administrative law judge must act upon a motion filed under this subsection by providing relief which is consistent with IC 4-21.5 and 312 IAC 3-1.

While there are no direct Federal counterparts to most of the provisions in 312 IAC 3-1-12, the Director finds that none of the proposed rules are inconsistent with the Federal regulations at 43 CFR Part 4. Therefore, we are approving them.

Indiana's previously approved provisions at 310 IAC 0.6-1-13 (Awards of litigation expenses for proceedings under surface coal mine reclamation law, oil and gas code, and entomology and plant pathology code) were revised and recodified at 312 IAC 3-1-13. Subsection (a) provides that 312 IAC 3-1-13 governs an award of costs and expenses reasonably incurred, including attorney fees, under IC 14-22-26-5, IC 14-24-11-5, IC 14-34-15-10, or IC 14-37-13-7. We are considering in this final rule those provisions for award of costs and expenses that pertain to Indiana's surface coal mining program under IC 14-34-15-10. The provisions at subsections (b) and (c) do not pertain to the Indiana program. The provisions at paragraphs (d), (e), (f), and (g) are applicable to administrative review proceedings under IC 14-34-15-10.

Subsection (d) provides that appropriate costs and expenses, including attorney fees, may be awarded under IC 14-34-15-10 in five instances. First, litigation costs and expenses may be awarded to any person from the permittee; but, the person must initiate or participate in an administrative proceeding reviewing enforcement. Also, a finding must be made by the administrative law judge or commission that a violation of IC 14-34, a rule adopted under IC 14-34, or a permit issued under IC 14-34 has occurred or that an imminent hazard existed and the person made a substantial contribution to the full and fair determination of the issues. However, a contribution of a person who did not initiate a proceeding must be separate and distinct from the contribution made by a person initiating the proceeding. Second, litigation costs and expenses may be awarded by the department to a person, other than a permittee or the permittee's authorized representative, who initiates or participates in a proceeding. The person must prevail in whole or in part, achieving at least some degree of success on the merits. A finding must also be made indicating that the person made a substantial contribution to a full and fair determination of the issues. Third, litigation costs and expenses may be awarded by the department to a permittee if the permittee demonstrates that the department issued the following orders in bad faith and for the purpose of harassing or embarrassing the permittee: a cessation order, a notice of violation, or an order to show cause why a permit should not be suspended or revoked. Fourth, litigation costs and expenses may be awarded to a permittee from a person, where the permittee demonstrates that the person initiated a proceeding under IC 14-34-15 or participated in the proceeding in bad faith and for the purpose of harassing or embarrassing the permittee. Finally, litigation costs and expenses may be awarded to the department from a person, where the department demonstrates that the person sought administrative review or participated in a proceeding in bad faith and for the purpose of harassing or embarrassing the department. We find that the provisions of 312 IAC 3-1-12(d) are substantively identical to 43 CFR 4.1294(a)(1) and (b) through (e).

Subsection (e) allows the commission to order a person requesting a hearing to pay the cost of the court reporter if the person requesting the hearing fails, after proper notice, to appear at the hearing. Although there is no Federal counterpart to 312 IAC 3-1-13(e), we find that the provision is reasonable and is not inconsistent with SMCRA and the Federal regulations. Therefore, we are approving it.

Subsection (f) specifies the factors that the commission must consider in determining what is a reasonable amount of attorney fees. The factors include: (1) The nature and difficulty of the proceeding; (2) the time, skill, and effort involved; (3) the fee customarily charged for similar legal services; (4) the costs involved in the proceeding; and (5) the time limitations imposed by the circumstances. For a party whose attorney is a full-time, salaried employee of the party, consideration also must be given to the prorated cost of the salary of the attorney and of the clerical or paralegal employees of the party who assisted the attorney. The employee benefits attributable to the time devoted to representation must also be considered. Although there are no direct Federal counterparts to all the factors listed in 312 IAC 3-1-13(f), we find that the provisions are reasonable and consistent with the Federal regulations at 43 CFR 4.1292(a)(3), and we are approving them.

Subsection (g) requires a party who wishes to seek litigation expenses to petition the director within 30 days after the party receives notice of the final agency action. A party wishing to challenge the petition for an award must deliver a written response to the director within 15 days of service of the petition. If a petition for seeking litigation expenses and a challenge of the petition for award are delivered to the director under this subsection, the director must refer the matter to the division of hearings so that a proceeding may be conducted under IC 4-21.5. The Federal regulation at 43 CFR 4.1291 allows a petition for fees to be filed within 45 days of receipt of the final agency action. While the time limit for filing is shorter under the Indiana rule, we find that the proposed time period is still reasonable and that 312 IAC 3-1-13(g) is no less effective than the Federal regulation. We are, therefore, approving the provisions.

Indiana's previously approved provisions at 310 IAC 0.6-1-14 were revised and recodified at 312 IAC 3-1-14. Subsection (a) requires the commission to employ and engage the services of a stenographer or court reporter, either on a full-time or a part-time basis, to record evidence taken during a hearing. Subsection (b) allows a party to obtain a transcript of the evidence by submitting a written request to the administrative law judge. Subsection (c) requires the party who requests a transcript under subsection (b) to pay the cost of the transcript. Subsection (d) provides that, upon a written request by a party filed at least 48 hours before a hearing, a court reporter who is not an employee of the commission will be engaged to record a hearing.

We find that 312 IAC 3-1-14 is no less effective than the Federal regulation at 43 CFR 4.23 that contains provisions for hearing transcripts.

Indiana's previously approved provisions at 310 IAC 0.6-1-15 (Special status determinations) were revised and recodified at 312 IAC 3-1-15. Subsection (a) allows a person to request the department to interpret a statute or rule administered by the department as applicable to a specific factual circumstance. The request must be in writing and must describe with reasonable particularity all relevant facts. The request must cite with specificity the statutory or rule sections in issue. The request must identify any other person who may be affected by a determination of the request. Finally the request must describe the relief sought. Subsection (b) allows the director or the director's delegate to provide a written response to the request. The written response must be provided within 45 days of the request. The response may include an interpretation based upon the information provided in the request or may specify additional information needed to respond to the request. If the department needs additional information, it has an additional 45 days in which to respond. Subsection (c) provides that if the department does not respond within the periods described in subsection (b), a general denial of the request is deemed to have resulted. Subsection (d) allows the person who is seeking the request under subsection (a) to file a petition for administrative review under IC 4-21.5-3 if he or she is aggrieved by the response of the department under subsection (b) or a general denial under subsection (c). The department's response constitutes a determination of status under IC 4-21.5-3-5(a)(5). Subsection (e) provides that 312 IAC 3-1-15 does not excuse a person from a requirement to exhaust another administrative remedy provided by statute or rule. A person may not use this section to void or modify a final order entered by the department in another proceeding. A request under this section does not extend any time limitation imposed on the availability of another administrative remedy. A final order of the department under this section, which follows a contested proceeding under IC 4-21.5-3, provides the same precedent as a final order following any other contested proceeding under IC 4-21.5-3.

While there are no Federal counterparts to the provisions in 312 IAC 3-1-15, we find that the proposed rule is not inconsistent with SMCRA or the Federal regulations, and we are approving it.

Indiana's previously approved provisions at 310 IAC 0.6-1-16 were revised and recodified at 312 IAC 3-1-16. Subsection (a) provides that upon the motion of a party, a hearing may be continued by the administrative law judge and shall be continued upon a showing of good cause. Subsection (b) requires that a motion to continue a hearing because of the absence of evidence must be made by affidavit. The affidavit must show the materiality of the evidence expected to be obtained; that due diligence has been used to obtain the evidence; and where the evidence may be. If the motion is based on the absence of a witness, the party's affidavit must show: the name and residence of the witness, if known; the probability of procuring the testimony in a reasonable time; that absence of the witness was not procured by the party nor by others at the request, knowledge, or consent of the party; what facts the party believes to be true; and that the party is unable to prove the facts by another witness whose testimony can be readily procured. Subsection (c) provides that the hearing shall not be continued if, upon the receipt of a continuance motion under subsection (b), the adverse party stipulates to the truth of the facts which the party seeking the continuance said could not be presented.

There is no direct Federal counterpart to Indiana's proposed rule. However, we find that the provisions of 312 IAC 3-1-16 are not inconsistent with the Federal regulations at 43 CFR 4.1112, concerning motions, or the Federal regulations at 43 CFR 4.1121, concerning powers of administrative law judges. Therefore, we are approving them.

Indiana's previously approved provisions at 310 IAC 0.6-1-17 were revised and recodified at 312 IAC 3-1-17. Subsection (a) provides that the record required to be kept by an administrative law judge under IC 4-21.5-3-14 commences when a proceeding is initiated under 312 IAC 3-1-3(a) and includes the items described in IC 4-21.5-3-33. Subsection (b) provides that in addition to subsection (a), this subsection applies to a proceeding concerning the approval or disapproval of a permit application, permit revision application, or permit renewal application under IC 14-34-4-13. However, nothing in this subsection precludes the admission of testimony or exhibits that are limited to the explanation or analysis of materials included in the record before the director. Neither does this subsection preclude the manner in which the materials were applied, used, or relied upon in evaluating the application. Upon a timely objection made before or during a hearing, the administrative law judge shall exclude testimony or exhibits that are offered but that identify or otherwise address matters that are not part of the record before the director under IC 14-34-4-13. The record before the director includes: (1) The permit; (2) the permit application as defined at 310 IAC 12-0.5-10; (3) documentation given or referenced, in writing, by the applicant or an interested person for the purposes of evaluating, or documentation used by the department to evaluate, the application; (4) the analyses of the department in considering the application, including the expertise of the department's employees and references used to evaluate the application; (5) documentation received under IC 14-34-4, including the conduct and results of any informal conference or public hearing under IC 14-34-4-6; and (6) correspondence received or generated by the department relative to the application, including letters of notification, proofs of filing newspaper advertisements, and timely written comments from an interested person.

Section 514(c) of SMCRA and the Federal regulations at 30 CFR 775.11(b)(1) require that hearings conducted by State regulatory authorities on permitting decisions must be of record and adjudicatory in nature. Indiana's proposed rule meets these standards. Therefore, we find that 312 IAC 3-1-17 is no less stringent than SMCRA and no less effective than the Federal regulations.

Indiana added a new section to its procedural rules at 312 IAC 3-1-18. We are considering in this final rule only those provisions in 312 IAC 3-1-18 that pertain to the Indiana program under IC 14-34. Subsection (a) requires a person, who wishes judicial review of a final agency action entered under 312 IAC 3-1, to serve copies of a petition for judicial review upon the persons described in IC 4-21.5-5-8. Subsection (b) provides the address for sending a copy of the petition that IC 4-21.5-5-8(a)(1) requires to be served upon the ultimate authority for an administrative review. The address applies whether the commission or an administrative law judge is the ultimate authority. Where the department is a party to a proceeding under this rule, subsection (c) provides the address for sending a copy of the petition that IC 4-21.5-5-8(a)(4) requires to be served upon a party to a proceeding. The provisions at subsection (d) do not pertain to the Indiana program. Subsection (e) clarifies that the commission and its administrative law judge provide the forum for administrative review under this rule and that neither is a party.

Section 526(e) of SMCRA and the Federal regulations at 30 CFR 775.13(b) require that the actions of the State regulatory authority under an approved State program be subject to judicial review by a court of competent jurisdiction in accordance with State law. We find that 312 IAC 3-1-18 is not inconsistent with the requirements of section 526(e) of SMCRA or the Federal regulations at 30 CFR 775.13(b), concerning judicial review of a final agency action.

On February 29, 2000, under section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of the Federal regulations, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Indiana program (Administrative Record No. IND-1687. We did not receive any comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the written concurrence of the EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Indiana proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask the EPA for its concurrence.

On February 29, 2000, under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. IND-1687). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP for amendments that may have an effect on historic properties. On February 29, 2000, we requested comments on Indiana's amendment (Administrative Record No. IND-1687), but neither responded to our request.

OSM requested public comments on the proposed amendment. By letter dated April 5, 2000, the Indiana Coal Council, Inc. (ICC) submitted comments in support of the amendment. The ICC commented that the Natural Resources Commission's Division of Hearings has earned a good reputation for impartiality and professionalism in its handling of administrative proceedings. The ICC believes that recodification and transfer of the Division of Hearings' procedural rules for administrative review proceedings from under the Indiana Department of Natural Resources' (IDNR) rules at Title 310 to under the Indiana Natural Resources Commission's rules at Title 312, “has further strengthened and guaranteed the independence of the administrative law judges from the IDNR program staff.” The ICC further commented that the recodification does not represent any significant substantive changes in the procedural rules applicable to legal proceedings under the Indiana program and the amendment should be approved.

As discussed above under III. Director's Finding, we are approving Indiana's proposed amendment.

Based on the above findings, we approve the amendment as sent to us by Indiana on February 4, 2000. To implement this decision, we are amending the Federal regulations at 30 CFR Part 914, which codify decisions concerning the Indiana program. We are making this final rule effective immediately to expedite the State program amendment process and to encourage Indiana to bring its program into conformity with the Federal standards. SMCRA requires consistency of State and Federal standards.

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.

This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary under SMCRA.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowed by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments since each such program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed State regulatory program provision does not constitute a major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

This rule does not contain information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior has determined 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. ). The State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector.

Section 845 of the National Defense Authorization Act for Fiscal Year 1994, Pub. L. 103-160, as amended by section 804 of the National Defense Authorization Act for Fiscal Year 1997, Pub. L. 104-201 and section 241 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, Pub. L. 105-261, authorizes the Secretary of a Military Department, the Director of Defense Advanced Research Projects Agency and any other official designated by the Secretary of Defense, to enter into transactions other than contracts, grants or cooperative agreements for prototype projects that are directly relevant to weapons or weapon systems proposed to be acquired or developed by the Department of Defense. Such transactions are commonly referred to as “other transaction” agreements for prototype projects.

Section 801 of the National Defense Authorization Act for Fiscal Year 2000 establishes a requirement that an “other transaction” agreement for a prototype project that provides for payments in a total amount in excess of $5,000,000 include a clause that provides Comptroller General access to records.

To the extent that a particular statute or regulation is limited in its applicability to the use of a procurement contract, it would generally not apply to “other transactions” for prototype projects. The requirement for Comptroller General access on “other transactions” for prototype projects that provide for payments that exceed $5,000,000 is the first statutory requirement mandating conditions that must be included in an “other transactions” agreement. The content of this rule may also be included in a future DoD issuance.

It has been determined that this rule is not a significant rule as defined under section 3(f)(1) through 3(f)(4) of Executive Order 12866.

It has been certified that this part is not subject to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. The rule requires only that the Comptroller General be provided access to records of certain projects. It does not require additional record keeping or other significant expense by project participants.

It has been certified that this rule does not impose any reporting or record keeping requirements under the Paperwork Reduction Act of 1995.

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

This supplemental information section is organized as follows:

In this action, EPA is approving SO 2 redesignation requests submitted by the State of Ohio for Coshocton, Gallia, and Lorain Counties. EPA is also approving the maintenance plans for these counties. In addition, EPA is approving state-adopted emission limits for sources in these three counties. EPA plans separate action on rules 3745-18-03, 3745-18-04, 3745-18-15, and 3745-18-71, that Ohio submitted along with rule revisions for these three counties.

EPA is taking this action because the redesignation requests meet the five criteria all redesignation requests must meet. The limits in the submittal are approvable because they are at least as stringent as the current set of federally enforceable limits. Coshocton, Gallia, and Lorain Counties have been designated as nonattainment areas for sulfur dioxide but now meet the sulfur dioxide NAAQS. The three counties have plans for keeping their sulfur dioxide levels within the health and welfare-based standards for the next 10 years and beyond. The plans require the three counties to consider impacts of future activities on air quality and to manage those activities.

EPA promulgated the applicable Federal Implementation Plan (FIP) in 1976. The FIP required significant emission reductions at specific facilities throughout the state to attain and maintain the NAAQS for SO 2 .

On October 5, 1978, Coshocton, Gallia, and Lorain Counties (among others) were designated as nonattainment areas for the primary sulfur dioxide standards. The state adopted its own regulations in 1979, generally imposing limits similar to those promulgated in the FIP. The state submitted these regulations for EPA approval in 1980, including regulations for Coshocton, Gallia, and Lorain Counties.

The state then withdrew its submittal for selected sources. These sources are:

EPA approved this SIP regulation on January 27, 1981, for Coshocton, Gallia, and Lorain Counties (46 FR 8481) except for the source limits withdrawn by the state. The federally promulgated FIP regulations, therefore, have remained in effect for the above sources.

On October 26, 1995, Governor George Voinovich requested that EPA redesignate to attainment all remaining SO 2 nonattainment areas within the State of Ohio, including Coshocton, Gallia, and Lorain Counties.

On May 28, 1996, EPA Administrator Browner sent a letter to Governor Voinovich informing him that the redesignation request depended on EPA approval of state-adopted rules, such that the plan for assuring attainment would rely on approved State Rules rather than federally promulgated rules.

On September 14, 1999, Ohio provided supplemental supporting material for redesignation requests for three SO 2 nonattainment areas (Coshocton, Gallia, and Lorain Counties) to EPA.

On October 28, 1999 (64 FR 58018), EPA proposed approval of the redesignation requests for Coshocton, Gallia, and Lorain Counties, the maintenance plans, and the state-adopted emission limits.

The public comment period on this proposed approval ended on November 29, 1999; and only one comment, which was favorable, was received.

For Gallia County emission limits, both the proposed and the final submittals are identical.

For the Coshocton County emission limits, paragraph (B)(4) of the final submittal, applying to two diesels at Columbus Southern Power Company, Conesville, was deleted based on evidence from the company's title V application that these units no longer operate. The final submittal indicates only 3 units (B006, B009, and B010) are in operation, instead of 5 units indicated in the proposed submittal.

For the Lorain County emission limits, paragraph (C) of the final submittal, applying to the General Motors Corporation, Fisher Body Division, was removed because this facility has been shutdown for 15 years. For the Avon Lake Plant, the state had two options in 3745-18-53, (B)(1) and (B)(2) or (B)(3) and (B)(4), for setting the facility's boilers' emission limits. Since the source only implements the strategy inherent in (B)(1) and (2), the limits in (B)(3) and (B)(4) had become irrelevant and were removed from the final state rule.

On November 23, 1999, EPA received one letter commenting on the proposed rulemaking. This letter, from AEP, encouraged EPA to take final action to approve the request as proposed. EPA received no adverse comments on this proposed rulemaking, and for the reasons provided in the proposal, concludes that the adopted emission limits, maintenance plans, and redesignation request for these counties should be approved.

In June 1999, Ohio e-mailed copies of proposed rule revisions for Coshocton, Gallia, and Lorain Counties to EPA. On September 14, 1999, Ohio submitted additional material requested by EPA to support the state's requests to redesignate these Counties to attainment with respect to SO 2 . On March 20, 2000, Ohio submitted final rule revisions with its final request for redesignation of these Counties to attainment for SO 2 . In addition, the state requested approval for the SO 2 maintenance plans for Coshocton, Gallia, and Lorain Counties.

Guidance for review of these requests includes a September 28, 1994, memorandum from the Director, Air Quality Management Division, Office of Air Quality Planning and Standards, EPA, to the Director, Air and Radiation Division, Region 5, entitled, “Response to Request for Guidance on Issues with Ohio Sulfur Dioxide Federal Implementation Plan.”

This memorandum sets forth three criteria to be met for the approval of state limits that are equivalent to existing FIP limits without new modeling. Under the first two criteria, there must be no known inadequacy in the original attainment demonstration. Under the third criterion, the state limits must reflect no relaxation of existing emission limits.

All three of these criteria are met by the state-promulgated SIP limits. Therefore, the revised limits, as adopted and submitted on March 20, 2000, are adequate to assure attainment without further modeling.

Another guidance document relevant to this rulemaking is an April 21, 1983, memorandum entitled “Section 107 Designation Policy Summary,” from the Director of EPA's Office of Air Quality Planning and Standards, which requires eight consecutive quarters of data showing SO 2 NAAQS attainment before an area can be redesignated. A county violates the NAAQS when its SO 2 level exceeds the NAAQS more than once in any year. Coshocton, Gallia, and Lorain Counties have eight consecutive quarters of data showing SO 2 NAAQS attainment. As discussed below, modeling-based evidence also indicates attainment of the SO 2 NAAQS.

Finally, a September 4, 1992 EPA policy memorandum on “Procedures for Processing Requests to Redesignate Areas to Attainment” was also relevant to this rulemaking. This memorandum explains that additional dispersion modeling is not required in support of an SO 2 redesignation request if an adequate modeled attainment demonstration was previously submitted and approved as part of the implemented SIP, and no indication of an existing air quality deficiency exists. These conditions are met here.

For facilities that are currently subject to FIP limits, the final state-adopted emission limits are equivalent to the FIP limits. A few emission points at these facilities have State limits but no FIP limits; approval of these State limits obviously increase the stringency of the SIP.

In Gallia County, for facilities currently subject to FIP limits, the State rules impose the same limits on the same set of emission points as the FIP. In Lorain County, the state's rules include limits for soaking pit process operations and seamless rotary furnace for USS/KOBE. In Coshocton County, the State's rules include limits for diesels and auxiliary boiler for Columbus Southern Power Company. Because these emission points are not currently subject to federally enforceable limits, these limits enhance the stringency of the State's plan.

The FIP limits at issue will become suspended upon approval of these submitted SIP limits, but would become applicable again if for any reason these SIP limits were rescinded in the future.

The principal sources affected by this rulemaking are sources for which FIP limits are being superseded by limits in approved state rules. The table below lists these sources.

Ohio's attainment plan for sulfur dioxide provides for attainment even with major sources emitting their maximum allowable emissions. Therefore, maintenance is provided by assuring that minor source impacts do not increase significantly. The principal minor sources are distant point sources and diesel vehicles.

Clean Air Act Title IV reductions and the required national conversion to low sulfur diesel fuel are the identified maintenance plan provisions for Coshocton, Gallia, and Lorain Counties.

Section 107(d)(3)(E) of the Clean Air Act (Act), as amended in 1990, establishes requirements to be met before an area may be redesignated from nonattainment to attainment. The criteria used to review redesignation requests are derived from the Act. An area can be redesignated to attainment if the following five conditions are met:

(A) The area has attained the applicable NAAQS.

(B) The area has a fully approved SIP under section 110(k) of the Act.

(C) The EPA has determined that the improvement in air quality in the area is due to permanent and enforceable emission reductions.

(D) The EPA has determined that the maintenance plan for the area has met all of the requirements of section 175A of the Act.

(E) The state has met all requirements applicable to the area under section 110 and part D of the Act.

Relevant Agency guidance is provided in both the April 21, 1983, and September 4, 1992 guidance documents cited above. The April 21, 1983 memorandum explains that eight consecutive quarters of data showing SO 2 NAAQS attainment are required for redesignation. The September 4, 1992 guidance explains that the area must have no more than one exceedance per year.

Ohio's September 14, 1999 submittal provides ambient monitoring data showing that Coshocton, Gallia, and Lorain Counties have met the NAAQS for the years 1994-1999.

Dispersion modeling is commonly used to demonstrate attainment of the SO 2 NAAQS. A modeling analysis was done in 1976 to show that, under all allowed operating scenarios, the emission limits in these three counties' SO 2 SIPs would lead to attainment and maintenance of the SO 2 standards. According to the September 4, 1992 memorandum, no further dispersion modeling is needed for the counties' redesignation. Ohio has provided evidence that sources in these counties are complying with these limits.

Based on this evidence, EPA concludes that emissions are sufficiently low to assure attainment throughout these areas currently designated nonattainment.

The SIP for the area at issue must be fully approved under section 110(k) of the Act and must satisfy all requirements that apply.

EPA's guidance for implementing section 110 of the Act is discussed in the General Preamble to Title I (44 FR 20372, April 14, 1979; and 57 FR 13498, April 16, 1992). The SO 2 SIP for Coshocton, Gallia, and Lorain Counties met the requirements of section 110 of the Act, and EPA approved the SIP on January 27, 1981, except that EPA did not take action for a limited set of sources.

State limits for the remaining set of specific sources in Coshocton, Gallia, and Lorain Counties are being approved in this rulemaking. For convenience, EPA is rulemaking on rules for entire affected Counties, and is approving additional minor revisions in these Counties.

Coshocton, Gallia, and Lorain Counties attained the SO 2 standards by implementing the SO 2 SIP controls. The reductions in emissions primarily come from converting some fuel-burning sources to lower sulfur content fuels, and to shutting down various types of sources. The use of lower-sulfur “cleaner” fuels is ensured by the facilities' air emission permits and federally enforceable SIP regulations.

EPA has concluded that the combination of limitations on maximum allowable emissions from major point sources and implementation of programs that will yield reductions in minor source emissions will assure maintenance of the standards. EPA is approving the maintenance plan in today's action.

With today's approval of limits submitted on March 20, 2000, along with the approval of limits and attainment demonstrations published on January 27, 1981 (46 FR 8481), Ohio has met the relevant requirements.

In summary, EPA is approving state-adopted emission limits for 7 sources in Coshocton, Gallia, and Lorain Counties, as well as approving minor revisions for other sources in these Counties. EPA is also approving the SO 2 maintenance plan for Coshocton, Gallia, and Lorain Counties as adequately ensuring that attainment will be maintained. Finally, EPA is approving redesignation requests from the State of Ohio which were submitted on October 26, 1995, September 14, 1999 and on March 20, 2000.

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or EPA consults with state and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts state law unless the Agency consults with state and local officials early in the process of developing the proposed regulation.

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, 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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the state is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the federal-state relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to state, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either state, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under state or local law, and imposes no new requirements. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action.

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).

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

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 August 4, 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).)

The HHS Office of Inspector General (OIG) issued final regulations on April 26, 2000 (65 FR 24400) that revised the OIG's CMP authorities, in conjunction with new and revised provisions set forth in the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191. Among other provisions, this final rulemaking codified new CMPs for excluded individuals retaining ownership or control interest in an entity; upcoding and claims for medically unnecessary services; offering inducements to beneficiaries; and false certification of eligibility for home health services. The rule also codified a number of technical corrections to the regulations governing OIG's sanction authorities. In that final rule, several inadvertent errors appeared in the regulations text and are now being corrected.

In the preamble discussion regarding revisions to § 1003.102(a)(6), addressing the submission of claims for services that are medically unnecessary, we indicated that this paragraph was being amended to include the “knows or should know” standard found in the statute and in the revision to § 1003.102(a)(1) to ensure that it is not the OIG's intent to subject providers to penalties for legitimate disagreements over the medical necessity of items and services or for honest mistakes or errors (65 FR 24403). As indicated in that discussion, while the knowledge standard in the statute requires that providers assume responsibility for appropriate billing of their services, the OIG intends to impose CMPs only after establishing that a provider knew that a billed item or service was not medically necessary, or that he or she deliberately ignored or recklessly disregarded such information. Accordingly, we indicated that we were revising § 1003.102(a)(6) by adding the words “knows or should know” to have the paragraph read as: “An item or service that a person knows or should know is medically unnecessary, and which is part of a pattern of such claims.” (emphasis added). This language was inadvertently omitted from the revised regulations text. In order to be consistent with the preamble discussion, we are correcting the omission that occurred in § 1003.102(a)(6).

In summarizing the provisions of the final rule, we indicated that we were amending § 1005.7 to provide for motions to compel discovery once a request for production of documents has been received. The preamble stated that any objections to a request for the production of documents will have to be filed with the opposing party within 15 days of receiving the discovery request, and that the party seeking the production of documents may then file a motion to compel discovery within 15 days, unless a lengthier time frame is set by the administrative law judge (ALJ) (65 FR 24412-13). This discretion afforded to the ALJ to grant an extension was inadvertently omitted from the regulations text in § 1005.7(e). We are correcting this omission by redesignating existing paragraph (e)(3) in this section to read as (e)(4) and by adding a new paragraph (e)(3) to address the ALJ's discretion in extending the appropriate time frames

In the definition for “preventive care” appearing in § 1003.101, the definition incorrectly cites § 1003.102(b)(13) as the applicable cross-reference. We are amending this definition to cite the correct cross-reference, which is to the term “remuneration” that is set forth in this same section.

We are amending the language in the introductory text for § 1003.103(a) and in paragraph (a)(1)(i) for § 1003.105 to make the references consistent with the those provisions added in earlier final rulemaking published on April 7, 2000 (65 FR 18434), which addressed OIG CMP authority for unbundling hospital outpatient services.

The modified base flood elevations are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection is provided.

Any request for reconsideration must be based upon knowledge of changed conditions, or upon new scientific or technical data.

The modifications are made pursuant to Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR Part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified base flood elevations are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.

The changes in base flood elevations are in accordance with 44 CFR 65.4.

This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

The Associate Director for Mitigation certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

This interim rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

The Federal Emergency Management Agency makes final determinations listed below of base flood elevations and modified base flood elevations for each community listed. The proposed base flood elevations and proposed modified base flood elevations were published in newspapers of local circulation and an opportunity for the community or individuals to appeal the proposed determinations to or through the community was provided for a period of ninety (90) days. The proposed base flood elevations and proposed modified base flood elevations were also published in the Federal Register .

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR Part 67.

FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR Part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The base flood elevations and modified base flood elevations are made final in the communities listed below. Elevations at selected locations in each community are shown.

This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

The Associate Director for Mitigation certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

This is a summary of the Commission's Report and Order, MM Docket No. 99-214, adopted April 19, 2000, and release May 12, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC. 20036, (202) 857-3800, facsimile (202) 857-3805.

This is a synopsis of the Commission's Memorandum Opinion and Order, MM Docket No. 94-70, adopted May 10, 2000, and released May 19, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Service, Inc., (202) 857-3800, located at 1231 20th Street, NW., Washington, DC 20036.