This rule has been determined to be significant and was reviewed by the Office of Management and Budget under Executive Order 12866.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-602), the undersigned has determined and certified by signature of this document that this rule will not have a significant economic impact on a substantial number of small entities. New provisions included in this rule will not impact a substantial number of small entities to a greater extent than large entities. Therefore, a regulatory flexibility analysis was not performed.

It is the determination of FSA that this action is not a major Federal action significantly affecting the environment. Therefore, in accordance with the National Environmental Policy Act of 1969, and 7 CFR part 1940, subpart G, an Environmental Impact Statement is not required.

This rule has been reviewed in accordance with Executive Order 12988, Civil Justice Reform. In accordance with this rule: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) except as specifically stated in this rule, no retroactive effect will be given to this rule; and (3) administrative proceedings in accordance with 7 CFR parts 11 and 780 must be exhausted before seeking judicial review.

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

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

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

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

The amendments to 7 CFR part 1951 contained in this rule require no revisions to the information collection requirements that were previously approved by OMB (0560-0161) under the provisions of 44 U.S.C. chapter 35. A statement to this effect was published in the proposed rule on November 10, 1999 (64 FR 61221-61223) . No comments on the burden estimate were received.

In response to the proposed rule published November 10, 1999, 45 respondents from 23 States commented. Comments were received from individuals, farm interest groups, attorneys, university professors, agricultural businesses, and State government officials. Comments and suggestions varied widely but focused primarily on the deduction of certain capital improvements when calculating Shared Appreciation Agreement recapture. The public comments are summarized as follows:

The proposal to reduce the interest rate charged on amortized Shared Appreciation Agreement recapture from the Non-Program rate (10.25% as of March 1, 2000) to the Homestead Protection rate (6.75% as of March 1, 2000) received 17 comments. Of these comments, 10 were favorable toward the change while seven disagreed and suggested modifications or additions to the proposed language.

Two comments were similar in that they wished for the Shared Appreciation Agreement recapture amount to either be added to the program note and, therefore, receive program rates, or, be given the Farm Ownership rate (7.25% as of March 1, 2000). As stated in the proposed rule, the Homestead Protection rate was chosen as it is near the Federal borrowing rate and is already used in the Agency's Homestead Protection program. Therefore, this rate should give producers the greatest possible chance of success while still allowing FSA to collect the recapture funds due and protect its interests.

One respondent approved of the Homestead Protection rate for future amortizations and stated that it should also be used if existing Shared Appreciation notes are to be reamortized. This comment was adopted. If restructure is required, the Homestead Protection rate will also be used when reamortizing Shared Appreciation loans.

The other four respondents suggested that the rate be retroactive to various time periods, ranging from the inception of the Shared Appreciation Agreement program to the announcement of the proposed rule by the Secretary. The Agency has determined that the Homestead Protection rate will apply only to future Shared Appreciation Agreement recapture amortizations because the previous rates are fixed by the existing promissory notes. The payments shown on these notes created a positive cash flow in the farm business plan at the inception of existing Shared Appreciation loans. Therefore, Shared Appreciation loans will not be modified unless for reamortization in cases of delinquency or financial distress under 7 CFR part 1951, subpart S procedures where program loans are also involved. Under 7 CFR § 1951.909, Shared Appreciation loans of eligible borrowers will be reamortized at the lesser of the original note interest rate, or the current Homestead Protection interest rate. The nonprogram loans will not be considered for any other servicing options under that section.

The proposal to change the term of future Shared Appreciation Agreements from 10 years to 5 years received 13 comments. Of these comments, six were in favor of the change, two suggested the term remain at 10 years, and four suggested modifications or additions to the proposed language. One felt the term should be 7 1/2 years and another stated the program should be abolished.

Abolishment of the program is not deemed reasonable given the success of the program. Since its inception over 10 years ago, the program has resulted in the recovery of over $58 million in debt written down. Approximately 6,300 Shared Appreciation Agreements remain outstanding, and approximately 5,000 borrowers have held to their terms under their Shared Appreciation Agreements. Shared appreciation is an important part of Agency writedown of borrower debt. After writedown, the Agency continues to provide assistance on the balance of the borrower debt for continued borrower operation of the farm.

Two respondents suggesting alternate language supporting the 5 year term but felt the change should be retroactive to the 1999 announcement of the proposal by the Secretary. Retroactivity of the proposal is discussed above.

Other comments, which were outside the scope of the proposed rule, centered around the requirements for recapture at the end of the term if the land is not sold and recapture of 75% of appreciation in the first 4 years and 50% thereafter. While these comments need not be addressed, the Agency notes that these requirements are dictated by statute (7 U.S.C. § 2001(e)) and cannot be changed by regulation.

One of the two respondents supporting the present 10-year Shared Appreciation Agreement term, stated that the 10-year term allowed the Government the greatest opportunity to recapture a large portion of the debt written off and also benefitted borrowers by giving them the maximum amount of time to recover from the financial hardship. The other proponent of the 10-year term felt the 5-year term could present some problems as many borrowers will be coming off a deferral at that time and could even be, based on the years of eligibility limitations currently in place, ineligible for further loans. The Agency has not adopted the comments to retain the 10-year term for Shared Appreciation Agreements. This term originally was adopted to allow borrowers a lengthy period during which to recover from the circumstances causing their delinquency and need for writedown. However, during this term, land appreciation exceeded expectations in many farming communities while farm income fell due to sustained low commodity and livestock prices. These factors have resulted in shared appreciation recapture amounts beyond the repayment abilities of many borrowers now at or near the end of the term of their agreements. Though these borrowers have successfully serviced their remaining debt after writedown, they now face liquidation because they cannot repay recapture due. The Agency has determined that future Shared Appreciation Agreements will be limited to 5 years to lower the risk of substantial appreciation in land values and increase the ability of borrowers to repay a portion of such appreciation to the Government. This proposed policy change was well supported by public comments. The Agency believes that 5 years is an adequate period of time for most borrowers to recover from the financial difficulties causing their delinquency. Furthermore, this term is adequate to protect the interests of the Government, and, in most cases, will allow more accurate planning by the borrower. The reduced term also will reduce the Agency's administrative burden in monitoring the agreements. Existing Shared Appreciation Agreements will continue under the 10-year term as agreed to by the borrower and the Government.

One respondent supported a 7 1/2 -year term for Shared Appreciation Agreements as a compromise. The Agency rejects this unsupported comment in favor of a 5-year term for the reasons discussed above.

The proposal to deduct the value of a dwelling, barn, grain storage bin or silo improved or added during the term of the Shared Appreciation Agreement from the value of the property at the maturity of the agreement received multiple comments from most of the 44 respondents who commented on the capital improvement provision of the proposed rule. These comments were widely varied among respondents and over 27 different and often divergent suggestions were made on how capital improvements should be addressed in the regulation. Of these comments, 39 offered suggestions on ways to expand the number of capital improvement items, six suggestions were made on eliminating or curtailing deductions, three suggested additional criteria to be considered beyond the improvements themselves, 16 addressed retroactivity of the deduction, and four suggested other changes to the method of determining shared appreciation.

Thirty-one comments were made in support of the use of more generalized language and expanding the number and type of capital improvements which would be deducted from the value of the property at maturity. Of these, 17 suggested all capital improvements be included, 10 made reference to those improvements for farm or real estate improvements (sometimes citing specific examples) and four, while proposing broad expansion of the type of items which would be considered capital improvements, also offered methods of defining or identifying a capital improvement. One individual stated improvements should be “normal and customary” while another stated that all “bonafide” improvements should be included. Others respondents stated the item should be affixed to the real estate and have a useful life of over 1 year. Three of these respondents stated that a determination or definition of capital improvements could be based on those allowed by the Internal Revenue Service (IRS) when calculating basis or depreciation. It was proposed that this method or the use of actual costs could also be used to determine the value of the improvements to be deducted from the final appraised value. Some respondents felt the appraiser would be able to effectively identify and value a capital improvement while others stated this would be very difficult for the appraiser especially when existing facilities had been expanded. Some of the above individuals and the remaining respondents who wished to expand the list of capital improvements suggested many varied items be considered, including, labor, tiling, tobacco quota, terracing, fencing, orchards, shelter belts, vineyards, irrigation, leveling, underground pipe, rock removal, timber, ponds, hog buildings, dairy parlors, and improvements for wildlife or conservation. It was also suggested that the Agency only consider an item if it met the criteria of an authorized loan purpose but no Government loans funds were used in it's acquisition.

Six comments were made suggesting curtailment of capital items which could be included. Two respondents stated no capital improvements should be considered and it was suggested that, especially in light of the proposed 5-year Shared Appreciation Agreement term, capital improvements should be very rare for operations which were in need of debt forgiveness. Suggestions were also made that all improvements must have received prior approval from the FSA, dwellings should only be excluded when needed and modest, and that improvements to existing facilities not be considered. Consideration of other criteria in the deduction of capital improvements, including financial status, commodity prices, and debt exceeding market value of the security, was proposed by three respondents. Increasing the amount of shared appreciation recapture based on any capital items removed during the shared appreciation term was also proposed in conjunction with deduction of capital improvements added to insure an “apples-to-apples” comparison.

These comments on capital improvements revealed a wide diversity of opinion on what capital items, if any, should be deducted in the shared appreciation calculation. Some respondents supported a list of items, while the majority suggested broad categories. Comments indicate that not only is the complete identification of appropriate capital improvements extremely difficult, but the valuation of these items, once identified, is equally complex. Based on this complexity, it has been determined that instead of attempting to redefine a capital improvement, FSA will incorporate, as suggested, IRS documentation methods to identify post-Shared Appreciation Agreement capital improvement additions. The remaining contributory value of any improvements to the FSA real estate security covered by the Shared Appreciation Agreement which were capitalized (not taken as annual operating expenses) on the tax records may be deducted from the final appraisal which establishes the Shared Appreciation Agreement recapture amount. The borrower will be responsible for providing appropriate tax documentation to verify this consideration, and the improvement must be affixed to the Agency's Shared Appreciation Agreement real estate security. The only other contributory value allowed to be deducted from the final appraised value will be the contributory value of the borrower's primary residence to the security if it was built on the security property during the term of the Shared Appreciation Agreement and the contributory value of any improvements made to the residence which actually added living area square footage.

While some commentors questioned appraisers' abilities to identify and value capital improvements, the Agency believes that professionally certified and licensed appraisers are trained in this determination process and are, therefore, qualified to evaluate property values and property value breakdown. This position is consistent with the practices of other commercial and government lending institutions.

Retroactivity of capital improvement deductions was addressed in 22 responses. Sixteen responses suggested that any regulation that excluded capital improvements should be made retroactive to the beginning of the Shared Appreciation Agreement program; two preferred no retroactivity; two suggested retroactivity to the Secretary's 1999 announcement of the proposed rule; one suggested that the new regulation apply retroactively to all who have not paid the recapture due, and one felt retroactivity should extend only to those who have an outstanding suspension agreement or amortized recapture debt.

These responses clearly favor some degree of retroactivity with some respondents indicating a desire for complete retroactivity. This, of course, would require that the Government revisit over 5,000 Shared Appreciation Agreements which have been partially or fully triggered and review the circumstances surrounding the security at that time. This substantial administrative burden is not in the best interests of the Government and the taxpayers. However, the Agency has determined that retroactivity of this deduction should be and will be extended to any amount covered by a suspension agreement that has not yet been fully paid since the borrowers were not able to show repayment ability for this amount. Furthermore, this will involve significantly less of an administrative burden with only approximately 1,500 suspension agreements covered. Use of this deduction, however, may require another appraisal of the property to determine the contributory value of capital improvements if not identified prior to entering the suspension agreement. Section 1951.914(h)(8) has been amended accordingly.

Comments received on other portions of § 1951.914 included the use of amortized Shared Appreciation Agreement recapture in conservation contracts, the use of sale prices instead of appraised values to determine recapture amounts during the term of the Shared Appreciation Agreement, the use of acceleration as a trigger in Shared Appreciation Agreements, and negotiation of appraisals. These comments are beyond the scope of the proposed rule and will not be addressed. Modifications to the regulatory provisions covering these issues were not proposed and are not included in the final rule.

The Agency has clarified the § 1951.914 reference to “current appraisal” by referring to § 761.7. The latter section, in part, sets out the requirements for real estate appraisals.

Good cause is shown for making this rule effective upon publication because of the need to implement the Homestead Protection interest rate and the consideration of capital improvements in the calculation of shared appreciation recapture. During the last 18 months, both natural disasters and low commodity prices have adversely affected many producers with maturing Shared Appreciation Agreements as they have become unable to pay recapture amounts due. Many agreements now are coming due and need the benefits provided by this rule. Without the lower Homestead Protection interest rate (6.75% as of March 1, 2000), these borrowers must pay the substantially higher Non-Program interest rate (10.25% as of March 1, 2000) if their shared appreciation debts are amortized under current regulations. The borrowers also will not benefit from the capital improvement deduction unless their shared appreciation debt is suspended with additional interest accrual. Furthermore, payment on many shared appreciation agreements is currently suspended for one year in accordance with 7 CFR 1951.914(h), so implementation of this regulation is needed to resolve the accounts before or when suspension ends. Under this rule, the suspended debts may be reduced to account for capital improvements on the property only during the suspension period. After suspension, the borrower also may qualify for amortization at the lower Homestead Protection interest rate. Therefore, immediate implementation of this rule is necessary to help these borrowers with recapture debts coming due.

The Agency is also amending its regulations in this rule to remove from the Code of Federal Regulations administrative notices, response forms and formulas for calculations required to determine eligibility for its programs that are currently published as exhibits to 7 CFR. 1951, subpart S. Section 331D(c) of the Consolidated Farm and Rural Development Act (Con Act) requires that the notices mandated by that section be published in the Agency's regulations. Sections 331D(a) and (b) of the Con Act require the Agency to send borrowers at least 90 days past due a notice which contains:

Accordingly, FSA will retain as exhibits in the Code of Federal Regulations Exhibit A of 7 CFR 1951, subpart S, which is the cover letter to the required notice sent to borrowers who are 90 days past due, and Exhibit A, Attachment 1, the required summary notice. Since § 331D(c) does not mandate that FSA publish all of its notices, FSA is removing from 7 CFR 1951, subpart S, Exhibit A-Attachments 2, 3, 4, 5, 5-A, 6, 6-A, 9, 9-A, 10, 10-A, Exhibit B, Exhibit B-Attachment 1, Exhibit C, Exhibit C-1, Exhibit E, Exhibit E, Attachments 1 and 2, Exhibit F, Exhibit F-Attachments 1 and 2, Exhibit I, Exhibit J, Exhibit J-Attachment 1, Exhibit J-1, Exhibit J-1, Attachment 1, Exhibit K, Exhibit K-Attachment-1, Exhibit L and Exhibit M. FSA will continue to use these Exhibits and Attachments for administrative purposes. They are available from any FSA office.

Federal Register Document 00-16660, Airspace Docket No. 00-ASO-12, published on June 30, 2000 (65 FR 40492), established Class D airspace at Stuart, FL. In the preamble, the first paragraph under the heading “The Rule” inadvertently referred to Key West NAS instead of Stuart, FL. This action corrects the error.

Accordingly, pursuant to the authority delegated to me, the location of the Class D airspace in the preamble under the heading “The Rule” published in the Federal Register on June 30, 2000 (65 FR 40492), is corrected as follows:

1. On page 40492, column 2, in the preamble under the heading “The Rule”, in line 4 of the first paragraph, correct the location “Key West NAS” to read “Stuart, FL”.

This document contains amendments to the Income Tax Regulations, Employment Tax Regulations, and Procedure and Administration Regulations (26 CFR Parts 1, 31, and 301), and implements sections 6071(b) and 6651(h), which were added to the Internal Revenue Code (Code) by the Internal Revenue Service Restructuring and Reform Act of 1998, Public Law 105-206 (112 Stat. 685, 724 (1998 Act)). Section 6071(b) was added to the Code by section 2002 of the 1998 Act and extends the due date for information returns required by chapter 61, subchapter A, part III, subparts B and C (sections 6041 through 6053) that are filed electronically. The information returns affected include the Form W-2 series, Form W-2G, the Form 1098 series, the Form 1099 series, and Form 8027. Under section 6071(b) such information returns are due on or before March 31 of the year following the calendar year to which the returns relate. Section 6071(b) applies to information returns required to be filed with the IRS or the Social Security Administration after December 31, 1999.

Section 6651(h) was added to the Code by section 3303 of the 1998 Act and provides that, for individuals, the failure to pay penalty is reduced from 0.5 percent per month to 0.25 percent per month during the period an installment agreement under section 6159 is in effect with regard to a timely filed return. Section 6651(h) applies to any Federal tax liability of an individual (including a liability under subtitle C) and is effective for determining the addition to tax for months beginning after December 31, 1999.

On January 27, 2000, a notice of proposed rulemaking (REG-105279-99, 2000-8 I.R.B. 707) under sections 6071(b) and 6651(h) was published in the Federal Register (65 FR 4396). Although written or electronic comments and requests for a public hearing were solicited, no comments were received and no public hearing was requested or held. The proposed regulations under sections 6071(b) and 6651(h) are adopted by this Treasury decision.

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

The principal author of the regulations relating to the extension of due dates under section 6071(b) is Marilyn E. Brookens, Office of Assistant Chief Counsel (Income Tax & Accounting). The principal author of the regulations relating to the reduction in the penalty under section 6651(h) is Robert B. Taylor, Office of Assistant Chief Counsel (Income Tax & Accounting). However, other personnel from the IRS and Treasury Department participated in their development.

On January 21, 1981, the Secretary of the Interior conditionally approved the West Virginia program. You can find background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and the conditions of the approval in the January 21, 1981, Federal Register (46 FR 5915-5956). You can find later actions concerning the West Virginia program and previous amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

By letter dated March 14, 2000 (Administrative Record Number WV-1147) and March 28, 2000 (Administrative Record Number WV-1148), and electronic mail dated April 6, 2000 (Administrative Record Number WV-1149), the WVDEP submitted an amendment to its program. The amendment concerns changes to the West Virginia surface mining reclamation regulations made by the State Legislature in House Bill 4223, and changes made to the Code of West Virginia in Senate Bill 614. Most of the amendment is intended to comply with the Consent Decree that was agreed to by the plaintiffs and the WVDEP and approved by the U.S. District Court for the Southern District of West Virginia on February 17, 2000, in the matter of Bragg v. Robertson, Civil Action No. 2:98-0636 (S.D.W.Va.).

We announced receipt of the proposed amendment in the April 25, 2000, Federal Register (65 FR 24158-24162), invited public comment, and provided an opportunity for a public hearing on the adequacy of the proposed amendment. The public comment period closed on May 25, 2000. Since no one requested a public hearing, none was held.

Set forth below, pursuant to SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are the Director's findings concerning the proposed amendment. Any revisions that we do not specifically discuss below concern nonsubstantive wording changes or revised paragraph notations to reflect organizational changes that result from this amendment.

In addition, to expedite our review of the amendment, we have separated from this amendment the proposed rules at new section CSR 38-2-7.5 concerning “homesteading” as a postmining land use for permits that meet the requirements for a variance from approximate original contour (AOC). These new rules were submitted to comply with the Consent Decree mentioned above. We will render our findings on new section CSR 38-2-7.5 in a separate notice to be published in the Federal Register .

Numerous wording and paragraph notation changes have been made.

These are nonsubstantive changes that will not be discussed. The substantive changes are identified below.

1. W.Va. Code 22-3-3. Definitions.

At § 22-3-3(e) the definition of the term “approximate original contour” (AOC) is amended. The word, “disturbed” has been deleted from the phrase, “backfilling and grading of the disturbed areas.” Added in place of the deleted word is the word, “mined.” As amended, AOC means: “that surface configuration achieved by the backfilling and grading of the mined areas so that * * *.” We find that the amended phrase is identical to the counterpart phrase in the definition of AOC at section 701(2) of SMCRA, and at 30 CFR 701.5 of the Federal regulations. Therefore, we find the revision to be no less stringent than SMCRA and no less effective than the Federal regulations and can be approved.

At § 22-3-3(u) (2), the definition of “surface mine,” “surface-mining” or “surface-mining operations” is amended by deleting the word “may” in the sentence immediately before subdivision (i), and replacing that word with the word “does.” As amended, the sentence reads: “Surface-mining does not include any of the following: * * *.” We find that the amendment merely clarifies the meaning of the quoted phrase and can be approved. However, as discussed below, our approval does not mean that the three examples of exemptions to the definition are approved parts of the West Virginia program.

In the February 9, 1999, Federal Register (64 FR 6201-6218), we addressed a West Virginia program amendment in which the State proposed adding the three exemptions to the definition of “surface mine,” “surface-mining” or “surface-mining operations,” and which are located at section 22-3-3(u)(2)(i), (ii), and (iii). In that notice, we deferred our decision on the section 22-3-3(u)(2)(i) concerning government-financed reclamation contract; disapproved section 22-3-3(u)(2)(ii) concerning coal extraction as an incidental part of development for commercial, residential, industrial, or civic use; and approved section 22-3-3(u)(2)(iii) concerning the reclamation of an abandoned or forfeited mine by a no-cost reclamation contract to the extent that the reclamation activities do not include coal extraction. See the February 9, 1999, notice and the May 5, 2000, Federal Register (65 FR 26130-26136) for more information on OSM decisions relating to State amendments on government-financed reclamation contracts, coal extraction as an incidental part of development for commercial, residential, industrial, or civic use, and the reclamation of abandoned or forfeited mines by no-cost reclamation contracts.

At § 22-3-3(y), the definition of “lands eligible for remining” is amended in the second sentence by deleting the word “may” and adding in its place the word “do.” As amended, the sentence reads as follows: “Surface-mining operations on lands eligible for remining do not affect the eligibility of the lands for reclamation and restoration under article two of this chapter.” We find that the amendment to § 22-3-3(y) does not render the provision less stringent than SMCRA at section 404 which provides that surface coal mining operations on lands eligible for remining shall not affect the eligibility of such lands for reclamation and restoration. Therefore, the amendment can be approved. We note, however, that on February 9, 1999 (64 FR 6201-6218), we approved the definition of “lands eligible for remining” at section 22-3-3(y) only to the extent that AML funds may be used to reclaim sites where a bond or deposit has been forfeited only if the bond or deposit is insufficient to provide for adequate reclamation or abatement. That qualified approval still stands.

2. W.Va. Code 22-3-13. General environmental protection performance standards for surface mining; variances.

At § 22-3-13(c)(3), concerning mountaintop removal mining operations, the list of approvable postmining land uses is amended as follows. In the first sentence, the word “woodland” is deleted, the words “commercial forestry” are added, the words “or fish and wildlife habitat and recreation lands use” are deleted, the word “facility” and the words “including recreational uses” are added. As amended, the sentence reads as follows: “In cases where an industrial, commercial, agricultural, commercial forestry, residential, public facility including recreational uses is proposed for the postmining use of the affected land * * *.”

In addition, a new subdivision § 22-3-13(c)(3)(B)(iii) is added to require that the applicant provide assurances that the proposed postmining land use will be “obtainable according to data regarding expected need and market.” The previously existing subdivision (iii) is renumbered as subdivision (iv), and so on.

SMCRA at section 515(c)(3) provides for the following postmining land uses for mountaintop removal operations: industrial, commercial, agricultural, residential, and public facility (including recreational facilities). On September 1, 1983 (48 FR 39892, 39893), OSM amended its rules concerning postmining land uses and variances. In the preamble, OSM discussed amending the definition of “land use” at 30 CFR 701.5. In that discussion, OSM stated that “Agricultural use is interpreted as including cropland, pastureland or land occasionally cut for hay, grazingland, and forestry.” We have considered “forestry” to be a subset of the “agricultural” postmining land use since 1983. Even though the State has listed commercial forestry separately, it is an approvable postmining land use for mountaintop removal operations under the “agricultural” postmining land use. Therefore, the deletion of the term “woodland” and the addition of the term “commercial forestry” do not render subsection (c)(3) less stringent than section 515(c)(3) of SMCRA and can be approved.

On May 14, 1999 (64 FR 26288), we determined that the State's postmining land use of “fish and wildlife habitat” rendered the West Virginia program less stringent than SMCRA, because SMCRA at section 515(c)(3) does not authorize “fish and wildlife habitat” as a postmining land use for mountaintop removal operations. We disapproved the State's proposed “fish and wildlife habitat” postmining use at section 22-3-13(c)(3), and required that the West Virginia program be amended to remove the phrase “or fish and wildlife habitat and recreation lands.” We also required that the term “public use” at section 22-3-13(c)(3) be amended to include the term “facility” and also to clarify that the term will be interpreted the same as “public facility (including recreation facilities) use” at SMCRA section 515(c)(3). We codified these required amendments in the Federal regulations at 30 CFR 948.16(iiii)(1) and (2). The State has responded to these required amendments by deleting the words “or fish and wildlife habitat and recreation lands use” and by adding the words “facility including recreational uses.” As amended, section 22-3-13(c)(3) is substantively identical to the approvable postmining land uses for mountaintop removal operations provided at section 515(c)(3) of SMCRA with one exception. The State term “public facility including recreational uses” differs from the SMCRA term “public facility (including recreational facilities).” The meaning of the difference is not readily apparent.

In May 14, 1999, Federal Register notice discussed above, we explained that SMCRA's use of the term “facilities” means that various structures which support the public or recreational use of the land are required to be developed. For example, the postmining land use of “public facility (including recreational facilities)” requires a structure or development of some sort created by man that the public is able to use. A “public facility” might include developments such as governmental buildings, prisons, schools, reservoirs, or airports. “Recreational facilities” might include developed recreational facilities such as parks, camps, and amusement areas, as well as areas developed for uses such as hiking, canoeing, and other less intensive recreational uses. However, even the less intensive recreation facilities would require structures or developments to support the public uses. For example, less intensive recreation facilities such as those for hiking and camping may require access roads, parking lots, rest rooms, developed trails, boat ramps, camping shelters, etc. In the required amendment codified at 30 CFR 948.16(iiii)(2), we require that the State amend the term “public use” at section 22-3-13(c)(3) to include the term “facility” and also to clarify that the term will be interpreted the same as “recreational facilities use” at SMCRA section 515(c)(3). In this amendment, the State has added the term “recreational use,” but has not submitted an explanation as to how the term will be interpreted.

It is not clear whether or not the proposed postmining land use of “public facility including recreational uses” is intended to mean the same as “public facility (including recreational facilities) use” at section 515(c)(3) of SMCRA. Therefore, we are approving the amendment only to the extent that the term “public facility including recreational uses” is interpreted to mean the same as the SMCRA term “public facility (including recreational facilities) use” as discussed above. In addition, since the State has satisfied the provisions of the required amendment codified at 30 CFR 948.16(iiii) (1) and (2), except for providing the clarification concerning how the WVDEP will interpret the term “recreational uses,” we are deleting most of the required amendment except that we will continue to require, at (iiii), that the State amend the term “recreational uses” at W.Va. Code 22-3-13(c)(3) to mean “recreational facilities use” at SMCRA section 515(c)(3).

Finally, the added words “obtainable according to data regarding expected need and market” at subdivision 22-3-13(c)(3)(B)(iii) are identical to, and therefore no less stringent than, the SMCRA provision at section 515(c)(3)(B)(ii) and can be approved. These changes are in response to a study that we conducted on mountaintop removal mining in West Virginia.

3. W.Va. Code 22-3-23. Release of bond or deposits; application; notice; duties of director; public hearings; final maps on grade release.

At subsection 22-3-23(c), a new subdivision number and title at (c)(1) are added to read as follows. “(1) For all operations except those with an approved variance from approximate original contour:” Previously existing subdivisions (c)(1), (2), and (3) have been relettered as (c)(1)(A), (B), and (C). As amended, subdivision 22-3-23(c)(1) applies only to operations that do not have an approved variance from the AOC requirements. This change does not render the West Virginia program less stringent than SMCRA and can be approved.

New subdivision 22-3-23(c)(2) is added to impose specific bond release requirements on operations with an approved variance from the AOC requirements.

New subdivision 22-3-23(c)(2)(A) provides that when the operator completes the backfilling, regrading and drainage control of a bonded area in accordance with the operator's approved reclamation plan, the release of 50 percent of the bond or collateral for the applicable bonded area will be granted: Provided, that a minimum bond of $10,000 shall be retained after grade release.

New subdivision 22-3-23(c)(2)(B) provides that two years after the last augmented seeding, fertilizing, irrigation or other work to ensure compliance subdivision 22-3-13(b)(19) concerning revegetation, the release of an additional 10 percent of the bond or collateral for the applicable bonded area will be granted: Provided, that a minimum bond of $10,000 shall be retained after this phase of bond release.

New subdivision 22-3-23(c)(2)(C) provides that when the operator has completed successfully all surface mining and reclamation activities, the release of the remaining portion of the bond, but not before the expiration of the revegetation responsibility period specified in subdivision 22-3-13(b)(20) will be granted: Provided, that the revegetation has been established on the regraded mined lands in accordance with the approved reclamation plan and if applicable the necessary postmining infrastructure is established and any necessary financing is completed: Provided, however, that the release may be made where the quality of the untreated postmining water discharged is better than or equal to the premining water quality discharged from the mining site.

These provisions apply to mountaintop removal and steep slope mining operations which have been granted exceptions or variances from the AOC requirements. As amended, subdivisions 22-3-23(c)(2)(A), (B), and (C) differ from the State's approved bond release provisions at subdivisions 22-3-23(c)(1)(A), (B), and (C) (and which now apply only to mined lands which were not subject to an AOC variance) in two ways: (1) the percentages of the bond that may be released at the different stages; and (2) the requirement that final bond cannot be released on lands subject to an AOC variance unless, and if applicable, any necessary postmining infrastructure is established and any necessary financing is completed. The proposed percentages of the bond that may be released at the different stages of reclamation do not exceed the percentages provided for in section 519(c) of SMCRA and the Federal regulations at 30 CFR 800.40(c). There is no direct Federal counterpart to the requirement that final bond cannot be released on lands subject to an AOC variance unless, and if applicable, any necessary postmining infrastructure is established and any necessary financing is completed. However, we find that this requirement is not inconsistent with the SMCRA bond release requirements at section 519(c) and the mountaintop removal and steep slope mining requirements at sections 515(c) and 515(e).

The proposed language also contains the following proviso: “Provided, however, That the release may be made where the quality of the untreated postmining water discharged is better than or equal to the premining water quality discharged from the mining site.” This provision is less stringent than section 519(c) of SMCRA, and less effective than 30 CFR 800.40(c)(3), which together require that all reclamation requirements of the Act and the permit, including water quality, be fully met. Under the new language, the bond could be released where the quality of the water being discharged from the reclaimed mine site does not meet effluent limitations and applicable State and Federal water quality standards as required by section 519(c) of SMCRA and 30 CFR 816.42 and 817.42. Therefore, the proviso cannot be approved.

Except for the proviso language quoted above, we find that new subdivisions 22-3-23(c)(2)(A), (B), and (C) are consistent with the Federal bond release provisions at SMCRA section 519(c) and 30 CFR 800.40(c) and can be approved. The proviso at subdivision (c)(2)(C) which provides, “Provided, however, That the release may be made where the quality of the untreated postmining water discharged is better than or equal to the premining water quality discharged from the mining site,” is not approved. Therefore, we are requiring that the West Virginia program at W.Va. Code § 22-3-23(c)(2)(C) be further amended to delete the proviso which allows the release of bond where the quality of untreated postmining water discharged is better than or equal to the premining water quality discharged from the mining site. We previously disapproved and set aside similar language at section 22-3-23(c)(1)(C). We codified that disapproval at 30 CFR 948.12(e), and the set aside at 30 CFR 948.13(c). We recommend the language at section 22-3-23(c)(1)(C) that is set aside, and therefore not a part of the approved West Virginia program, also be deleted.

1. CSR 38-2-2.31. Definition of commercial forestry and forestry.

This new definition is added to read as follows.

The Federal regulations at 30 CFR 701.5 define “forestry” within the definition of “land use” at paragraph (d) to mean land used or managed for the long-term production of wood, wood-fiber, or wood-derived products. Neither of the State's definitions specifically state that forestry means land used or managed for the production of wood, wood-fiber, or wood-derived products as does the Federal definition at 30 CFR 701.5. However, the State's revised definition of “Commercial Forestry” at the land use categories at CSR 38-2-7.2.i. clarifies that commercial forestry is where forest cover is managed for commercial production of timber products. We therefore find that the lack of reference to wood, wood-fiber, and wood-derived products at CSR 38-2-2.31.a. does not render the West Virginia program less effective than the Federal regulations and can be approved. However, the definition of “forestry” lacks a reference to wood products. Therefore, to be no less effective than the Federal definition of forestry under the definition of land use at 30 CFR 701.5, we are requiring that the West Virginia program at CSR 38-2-2.31.b. be amended to clearly define forestry to mean a postmining land use used or managed for the long term production of wood or wood products.

2. CSR 38-2-2.45. Definition of downslope.

This definition is amended by deleting the words “except in operations where the entire upper horizon above the lowest coal seam is proposed to be partly or entirely removed.” The deleted language was never approved by OSM. ( See 64 FR 6201, 6205, February 9, 1999.) As amended, “downslope” means the land surface between the projected outcrop of the lowest coal seam being mined along each highwall, or any mining-related construction, and the valley floor. We note, however, that as amended, the State definition is identical to the Federal definition of “downslope” at 30 CFR 701.5 with the following exception.

In the proposed definition, the words “or any mining-related construction” do not appear in the Federal definition. OSM approved the mining-related construction language in the October 4, 1991 Federal Register (56 FR 50256, 50257-58). In that finding, OSM stated that the Federal definition is not intended to prohibit the construction of haul roads or pond embankments on steep slopes below the outcrop of the lowest coal seam being mined. Therefore, OSM determined that, to the extent that the term “mining-related construction” refers to structures such as those listed above, the State definition is no less effective than the Federal regulations. Similarly, OSM stated that to the extent that the proposed State's language is intended to prohibit the downslope placement of spoil removed by mining-related construction, it is not inconsistent with any Federal requirement. The WVDEP further clarified its definition of downslope by stating (Administrative Record Number WV-857) that the revised definition does not allow indiscriminate placement of materials on the downslope between the bench or cut and any mining-related construction. OSM approved the amended definition to the extent that the clarification provided by the State prohibits the placement of any debris, abandoned or disabled equipment, spoil material, or waste mineral matter between the lowest coal seam being mined and any mining-related construction. In our meeting with the WVDEP on May 3, 2000 (Administrative Record Number WV-1165A), the WVDEP stated that it continues to prohibit indiscriminate placement of materials on the downslope between the bench or cut and any mining-related construction. Therefore, for these reasons we find that as amended, the definition of “downslope” does not render the West Virginia program less effective than the Federal definition at 30 CFR 701.5 and can be approved.

3. CSR 38-2-2.98. Definition of prospecting.

This definition is amended by deleting the word “substantial” before the word “disturbance” in the first sentence. The effect of this deletion is that the definition of “prospecting” is no longer limited to those activities that cause “substantial” disturbance. On February 9, 1999 (64 FR 6201, 6205), we disapproved a West Virginia amendment concerning the definition of “prospecting.” In that amendment, the State added the word “substantial” to its definition of “prospecting.” The Federal regulations at 30 CFR 701.5 contain a definition of “coal exploration” that is synonymous with “prospecting,” except the Federal definition lacks the word “substantial.” In the disapproval, we noted that the Federal regulations at 30 CFR 772.11 require that a notice of intent to explore for coal be filed for any coal exploration operation, regardless of whether any disturbance at all will occur. In promulgating this revised Federal regulation on December 29, 1988, the Director stated that “for the regulatory authority to determine which proposed coal exploration operations may substantially disturb the natural land surface, it must be informed of all proposed exploration.” (53 FR 52943). Therefore, we did not approve the proposed addition of the word “substantial” to modify the word “disturbance” in the State's definition of “prospecting.”

We find that the deletion of the word “substantial,” from the State's definition of “prospecting” fully addresses the reason for our disapproval of February 9, 1999. The State's definition of “prospecting” is now no less effective than its Federal counterpart at 30 CFR 701.5, and with the Federal regulations at 30 CFR 772.11. Therefore, the deletion of the word “substantial” can be approved.

4. CSR 38-2-2.123. Definition of substantially disturb.

This definition is amended by deleting the word “and” after the words “significantly impact land,” and adding in its place the word “or.” With this change, substantially disturb means to significantly impact land or water resources.

On February 9, 1999 (64 FR 6201, 6206), we approved an amendment to the State's definition of “substantially disturb” but, in the interest of clarity, also required the State to amend the phrase “land and water resources” to read “land or water resources.” In its submittal of that amendment, the WVDEP stated that it interprets the definition of “substantially disturb” to mean that if land and/or water resources are significantly impacted by prospecting that will mean that those resources have been “substantively (sic) disturbed.” We approved the amended definition to the extent that it is construed in the manner explained by the WVDEP. However, because future administrations could construe the use of the term “and” in its more commonly understood sense, as a conjunctive connector, we required that the West Virginia program be further amended by changing the phrase “land and water resources” to “land or water resources” in the definition of “substantially disturb.” We codified that required amendment in the Federal regulations at 30 CFR 948.16(xxx). In the currently proposed amendment, the State has clarified the definition of “substantially disturb,” and thereby has satisfied the required program amendment codified at 30 CFR 948.16(xxx). Therefore, we are approving the amendment to the definition of “substantially disturb” and we are removing the required amendment codified at 30 CFR 948.16(xxx).

5. CSR 38-2-2.136. Definition of woodlands.

The definition of woodlands is deleted. As discussed above in Finding A. 2., we are approving the deletion of “woodlands” as an acceptable postmining land use for mountaintop removal operations. This postmining land use has no Federal counterpart. Therefore, we likewise find that the deletion of the definition of “woodlands” does not render the West Virginia program inconsistent with SMCRA or the Federal regulations and can be approved.

6. CSR 38-2-3.8.c. Structures and support facilities.

This subsection is amended by adding a new concluding sentence which reads as follows: “This exemption shall not apply to new and existing coal waste facilities.”

The Director approved amendments to CSR 38-2-3.8(c) on July 24, 1996 (61 FR 38382, 38383). In addition to the approval, the Director required at 30 CFR 948.16(vvv)(1) that the West Virginia program be further amended to be consistent with 30 CFR 701.11(e)(2) by clarifying that the exemption at CSR 38-2-3.8(c) does not apply to: 1) the requirements for new and existing coal mine waste disposal facilities; and 2) the requirements to restore the land to approximate original contour.

The proposed amendment is intended to satisfy the required amendment codified at 30 CFR 948.16(vvv)(1)(1) by clarifying that the exemption at CSR 38-2-3.8(c) does not apply to the requirements for new and existing coal mine waste disposal facilities. The proposed amendment, therefore, satisfies the required amendment codified at 30 CFR 948.16(vvv)(1)(1) and can be approved. However, the remaining requirement at 30 CFR 948.16(vvv)(1)(2), which is to clarify that the exemption at CSR 38-2-3.8(c) does not apply to the requirements to restore the land to AOC has not yet been satisfied and will remain in force. We will revise the required amendment codified at 30 CFR 948.16(vvv)(1) to only delete the satisfied portion at 948.16(vvv)(1)(1).

7. CSR 38-2-3.25 Transfer, assignment, or sale of permit rights and obtaining approval.

This subsection is amended by adding the term “reinstatement” in the title of the subsection, and in four locations where the phrase “transfer, assignment, or sale” appears. In addition, subdivision 3.25.b. is amended by adding a sentence which states that, “as a condition of reinstatement, the Director may require a modification to the mining and reclamation plan.” With this amendment, the provisions of CSR 38-2-3.25 will apply to reinstated permits. In its submittal of this amendment, the WVDEP stated that the purpose of this amendment is to provide rules consistent with the W.Va. Code change that was approved by OSM.

On February 9, 1999 (64 FR 6201, 6203), we published a final rule notice in which we addressed an amendment to the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA) at section 22-3-17(b). That section was amended by adding a paragraph which provides that, within one year following the notice of a permit revocation, subject to the discretion of the director and based upon a petition for reinstatement, the revoked permit may be reinstated. Further, the provision provides that the reinstated permit may be assigned to any person who meets the permit eligibility requirements of the WVSCMRA at § 22-3.

We approved the reinstatement provisions because the Federal requirements do not specifically prohibit the reinstatement of a revoked permit. We note, of course, that even though WVSCMRA provides for a reinstatement period of up to one year after permit revocation, the reinstatement procedures must not result in the intentional delay of bond forfeiture reclamation by the WVDEP. We approved the statutory revision in so far as the new language added to section 22-3-17(b) did not contain any provisions that were less stringent than the requirements of SMCRA. However, because the State's proposed reinstatement provisions did not reference the transfer, assignment or sale requirements of section 22-3-19(d) of WVSCMRA or CSR 38-2-3.25, and because the WVDEP had not fully developed its reinstatement procedures, we stated that the proposed provisions could not be implemented until the West Virginia program was further amended. We required at 30 CFR 948.16(www) that the State further amend the West Virginia program to accomplish the following: (1) adopt reinstatement procedures similar to its transfer requirements contained in CSR 38-2-3.25; (2) allow for public participation; (3) require that the revoked permit meet the appropriate permitting requirements of the WVSCMRA; and (4) require that the mining and reclamation plan be modified to address any outstanding violations for any permit reinstated pursuant to § 22-3-17(b) of the WVSCMRA. In the preamble containing our finding, we also stated that in no event can a reinstated permit be approved in advance of the close of the public comment period, and the party seeking reinstatement must post a performance bond that will be in effect before, during, and after the reinstatement of the revoked permit. The proposed regulatory amendment has been submitted to address the required amendment codified at 30 CFR 948.16(www).

The amendments to CSR 38-2-3.25 address the required amendment codified at 30 CFR 948.16(www), as follows. Concerning requirement (1), the State has adopted reinstatement procedures similar to its transfer requirements contained in CSR 38-2-3.25 by adding the term “reinstatement” to the title of section CSR 38-2-3.25, and at four locations within the section and thereby, adopting the requirements for transfer, assignment, or sale of permit rights as the reinstatement provisions. This satisfies requirement (1) at 30 CFR 948.16(www).

Concerning requirement (2), “allow for public participation,” the State amendment adds the term “reinstatement” to subdivision CSR 38-2-3.25.a.3. which provides for public comment on the proposed permit reinstatement. This satisfies requirement (2) at 30 CFR 948.16(www).

Concerning requirement (3), “require that the revoked permit meet the appropriate permitting requirements of the WVSCMRA,” the State amendment adds the term “reinstatement” to subdivision CSR 38-2-3.25.a.4. This subdivision provides that an approval of an application may be granted upon a written finding that the applicant will conduct mining operations in accordance with the purpose and intent of the WVSCMRA, CSR 38-2, and the terms and conditions of the permit. Such findings, the provision states, will be based on information set forth in the application for transfer, assignment, or sale and any other information made available to the Director of the WVDEP. This satisfies requirement (3) at 30 CFR 948.16(www). We note that the word “reinstatement” was inadvertently omitted from the requirement that such findings will be based on information set forth “in the application for transfer, assignment, or sale” and any information made available to the Director of the WVDEP. Therefore, subdivision CSR 38-2-3.25.a.4. must be further amended to add the word “reinstatement” to the phrase “transfer, assignment, or sale” in the second sentence of subdivision CSR 38-2-3.25.a.4.

Concerning requirement (4), “require that the mining and reclamation plan be modified to address any outstanding violations for any permit reinstated pursuant to § 22-3-17(b) of the WVSCMRA,” the State amendment added a sentence to subdivision CSR 38-2-3.25.b. The new sentence provides that, “as a condition of reinstatement, the Director may require a modification to the mining and reclamation plan.” With the added sentence, CSR 38-2-3.25.b. provides that: (1) Any person who assumes ownership or control directly or indirectly of a surface mining and reclamation operation shall become responsible for the correction of all outstanding unabated violations; and (2) as a condition of reinstatement, the Director may require a modification to the mining and reclamation plan. These provisions together satisfy the intent of requirement (4), and is consistent with the “successor in interest” obligations contained in 30 CFR 774.17(f). We find that the required amendment codified at 30 CFR 948.16(www) is satisfied and can be removed, and that, therefore, the amendment can be approved.

The proposed amendment does not address our February 9, 1999, statement (at 64 FR 6201, page 6203) that, “in no event can a reinstated permit be approved in advance of the close of the public comment period * * *.” It may be appropriate that in cases of transfer, assignment or sale of permit rights that the procedures at CSR 38-2-3.25.b. allow for the approval of a transfer, assignment or sale of a permit in advance of the close of the comment period. Under certain limited circumstances, this could accommodate the sale of assets from one party to another.

However, in cases of reinstated permits, there would be no sale of assets from one party to another. Therefore, there should be no provision to allow approval of a reinstated permit prior to the close of the public comment period. The State has indicated its intent not to allow approval of reinstatement of a permit in advance of the close of the public comment period (Administrative Record Number WV-1165). Nevertheless, we are requiring that the West Virginia program at CSR 38-2-3.25.b. be further amended to provide that in no event can a reinstated permit be approved in advance of the close of the public comment period.

8. CSR 38-2-7.2.i. Commercial woodland.

The land use category of “commercial woodland” is amended by deleting the word “woodland,” and adding in its place the word “forestry.” As amended, the land use of “commercial forestry” means, “where forest cover is managed for commercial production of timber.”

The Federal regulations at 30 CFR 701.5 define the term “forestry” under the definition of “land use” at paragraph (d) to mean “land used or managed for the long-term production of wood, wood fiber, or wood-derived products.” As amended, the State's “commercial forestry” is similar to the Federal definition of “forestry” land use, except that the Federal definition provides slightly more detail. For example, the Federal definition states that “forestry” involves the production of wood, wood fiber, or wood-derived products. The State definition, however, merely refers to the production of timber products. The State's definition is still no less effective than the Federal definition because the timber products referred to in the State's definition could be used to produce wood fiber or wood-derived products.

The State definition of “commercial forestry” also lacks a requirement found in the Federal definition that the forest cover be managed for the “long-term” production of timber. This does not render the State definition less effective than the Federal definition. The State has added new definitions of “commercial forestry” and “forestry” at CSR 38-2-2.31.a., and .b., and both include the “long-term” standard. While these new definitions specifically apply to the new rules at CSR 38-2-7.4 concerning AOC variance operations, it is not unreasonable to conclude that all forestry operations are considered to be long-term. Therefore, we find the definition of “commercial forestry” to be no less effective than the Federal regulations at 30 CFR 701.5 and can be approved.

9. CSR 38-2-7.3. Criteria for approving alternative postmining use of land.

New subdivision 7.3.c. is added to provide that: “A change in postmining land use to grassland uses such as rangeland and/or hayland or pasture is prohibited on operations that obtain an approximate original contour variance described in WV Code § 22-3-13(b)(25)(c). Provided, however, That this subdivision is not effective until Sections 7.4 and 7.5 of this rule are approved by the federal Office of Surface Mining.” It must be noted that there is a citation error in the quoted language. The mountaintop removal AOC variance provisions are located at section 22-3-13(c), not section 22-3-13(b)(25)(c). In its June 9, 2000, letter, the WVDEP stated that the citation error has been corrected (Administrative Record Number WV-1165). A spokesperson for the Secretary of State also confirmed that the citation error at subdivision 7.3.c. had been corrected in the surface mining reclamation rules that were filed by the WVDEP and which will take effect on August 1, 2000 (Administrative Record Number WV-1171).

There is no direct Federal counterpart to the proposed amendment. Under section 515(c)(3) of SMCRA, industrial, commercial, agricultural, residential or public facility (including recreational facilities) uses may be approved as postmining land uses for mountaintop removal mining operations. Certain managed grassland uses, such as grazing land, hayland or pasture land, are included within the Federal “agricultural” land use category. SMCRA at section 515(c)(3)(A) provides that the regulatory authority may grant a permit for mountaintop removal operations where (among other requirements) it deems that the proposed postmining land use constitutes an equal or better economic or public use of the affected land, as compared with the premining use. In this proposed amendment, the State has apparently concluded that such low intensity agricultural uses do not represent an equal or better economic or public use of the affected land. We find that the proposed amendment is not inconsistent with SMCRA at section 515(c)(3), which requires the regulatory authority to make such determinations, and can be approved.

10. CSR 38-2-7.4. Standards applicable to approximate original contour variance operations with a postmining land use of commercial forestry and forestry.

This subsection is new and contains the following subdivisions:

a. 7.4.a. Applicability. Subdivision 7.4.a.1. provides that CSR 38-2-7.4 applies to commercial forestry and forestry as they are defined at CSR 38-2-2.31 (see Finding B. 1., above). The proposed language is as follows.

SMCRA at section 515(c) provides that the following postmining land uses (PMLU) may be approved for mountaintop removal mining operations, provided other specified criteria are met: industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use. We have recognized forestry as an agricultural PMLU since 1983 (September 1, 1983; 48 FR at 39893). Consequently, commercial forestry may be approved for mountaintop removal mining operations as an agricultural use, provided the specified criteria at section 515(c) are met.

An agricultural PMLU is not an approvable PMLU under SMCRA at section 515(e)(2) for steep slope mining operations seeking a variance from the requirements to restore the land to AOC. Therefore, since we recognize forestry only as an agricultural PMLU, commercial forestry and forestry PMLU cannot be approved for steep slope mining operations seeking a variance from the requirements to restore the land to AOC.

Consequently, CSR 38-2-7.4.a.1., which authorizes commercial forestry and forestry for mining operations that receive variances from the general requirement to restore the postmining site to its AOC is no less stringent than 515(c) of SMCRA to the extent that it applies only to mountaintop removal mining operations.

The WVDEP has stated (Administrative Record Number WV-1165A) that the definitions of “commercial forestry” and “forestry” will be applied only as follows. “Commercial forestry,” both the definition and the implementing regulations at CSR 38-2-7.4, applies only to that portion of the operation which receives a variance from the requirements to achieve AOC. “Forestry,” both the definition and the implementing regulations at CSR 38-2-7.4, applies only to that portion of the operation which does not receive an AOC variance and the land surface after mining will achieve AOC.

We clarified in our postmining land use policy document issued on June 23, 2000, that postmining land uses for mountaintop removal mining operations must afford some added benefit either from a public policy or an economic standpoint in compensation for not returning the land to AOC. Under the Federal regulations at 30 CFR 785.14(c)(1)(ii), mountaintop removal operations must comply with the alternative postmining land use requirements of 30 CFR 816.133(a) through (c). Like section 515(b)(2) of SMCRA, paragraphs (a) and (c) of 30 CFR 816.133 specify that the only acceptable alternative postmining land uses are those that are higher or better than the premining uses. This means that the postmining use must represent an added benefit from either a public or economic standpoint. Therefore, for example, rather than a forestry premining use resulting in a forestry postmining use, to create an added benefit, a forestry premining use would have to result in a commercial forestry postmining use or some other higher or better use.

CSR 38-2-7.4.a.1. provides that “commercial forestry and forestry” may be approved as a postmining land use for surface mining operations that receive variances from the AOC requirements. As discussed above, however, only commercial forestry would provide an added benefit in compensation for not returning the land to AOC. Most likely, a forestry postmining use in West Virginia would be similar to the premining use and would not provide an added economic or public benefit for not returning the land to AOC. Therefore, forestry does not qualify as a higher or better postmining land use for an AOC variance whereas commercial forestry does qualify for an AOC variance. CSR 38-2-7.4.a.1. does not make it clear that only commercial forestry may be approved for areas receiving a variance from the AOC requirements. We are approving CSR 38-2-7.4.a.1., but only to the extent that it applies to mountaintop removal mining operations that receive an AOC variance pursuant to W.Va. Code. 22-3-13(c). In addition, we are requiring that the West Virginia program be further amended to make it clear that at CSR 38-2-7.4.a.1., only commercial forestry postmining use and not forestry postmining use may be approved for areas receiving a variance from the AOC requirements.

b. 7.4.b. Requirements. This subsection contains requirements concerning planting and management plan development, oversight procedures, landscape criteria, soil and soil substitutes, soil placement and grading, liming and fertilizing, ground cover vegetation, tree species and compositions, standards of success, front faces of valley fills, and long-term monitoring and adaptive management. Subsection 7.4.b. contains the following requirements.

7.4.b.1. This provision provides that the Director of the WVDEP may authorize commercial forestry and forestry as a postmining land use only if the following conditions have been satisfied.

7.4.b.1.A. Planting and management plan development. This subdivision contains the following requirements.

SMCRA at section 515(c)(3)(B), and the Federal regulations at 30 CFR 785.14(c) provide that an applicant for a mountaintop removal mining permit must present specific plans for the proposed postmining land use. SMCRA and the Federal regulations do not, however, contain the same level of specificity as do these regulations with respect to the plans that must be submitted to support a particular authorized postmining land use. The provisions at CSR 38-2-7.4.b.1.A. provide detailed requirements concerning the specific plans that must be submitted for commercial forestry and forestry. The new provisions are not inconsistent with the requirements of SMCRA at section 515(c)(3)(B) and the Federal regulations at 30 CFR 785.14(c), which require that an applicant for a mountaintop removal mining permit present specific plans for the proposed postmining land use. However, in addition to these specific requirements in this subdivision, an applicant must demonstrate compliance with all of the existing State requirements concerning mountaintop removal mining operations at W.Va. Code 22-3-13(c) and CSR 38-2-14.10. Therefore, we find that the provisions at CSR 38-2-7.4.b.1.A. are not less stringent than SMCRA nor less effective than the Federal regulations and can be approved to the extent that they supplement, but do not supersede, the existing mountaintop removal permitting requirements and performance standards at W.Va. Code 22-3-13(c) and CSR 38-2-14.10. In addition, we are approving these requirements to the extent that the use of best management practices at CSR 38-2-7.4.b.1.A.4.(e) will be limited to postmining timber harvesting practices conducted after final bond release and not as a substitute for the sediment control practices required at CSR 38-2-5.4 during mining and reclamation activities. Moreover, the termination of jurisdiction portion of CSR 38-2-7.4.b.1.A.1. is no less effective than the Federal termination of jurisdiction regulation at 30 CFR 700.11(d)(1)(ii), which authorizes the regulatory authority to terminate jurisdiction over a permanent program surface coal mining operation upon final bond release, but only to the extent that the State also applies the reassertion of jurisdiction requirements in its program at CSR 38-2-1.2.d. to these sites.

7.4.b.1.B. Oversight Procedures for Achieving Commercial Forestry and Forestry. This subdivision contains the following requirements.

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

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/.

2. In person . The Agency has established an official record for this action under docket control number OPP-301032. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of June 21, 2000 (65 FR 38535) (FRL-6558-9), EPA issued a notice pursuant to section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) announcing the filing of a pesticide petition (PP) for tolerance by IR-4, 681 U.S. Highway #1 South, North Brunswick, NJ 08902-3390. This notice included a summary of the petition prepared by Aventis, the registrant. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.415 be amended by establishing a tolerance for residues of the fungicide fosetyl-Al, aluminum tri( O -ethyl phosphonate), in or on cranberries at 0.5 part per million (ppm).

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

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

Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2), for a tolerance for residues of fosetyl-Al on cranberries at 0.5 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by fosetyl-Al are discussed in this unit as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies reviewed.

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

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD=NOAEL/UF). Where an additional safety factor is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA Safety Factor.

For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE)= NOAEL/exposure) is calculated and compared to the LOC.

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

1. Dietary exposure from food and feed uses. Tolerances have been established (40 CFR 180.415) for the residues of fosetyl-Al, in or on a variety of raw agricultural commodities (RACs) with tolerances ranging from 0.1 ppm for asparagus, caneberries, ginseng, and pineapples to 100 ppm for leafy vegetables (excluding Brassica). Other significant registrations include Brassica leafy vegetables, citrus, cucurbits, strawberries, and tomatoes. In addition, a timelimited tolerance is currently in effect for blueberries (40 ppm) in conjunction with an emergency exemption under section 18 of FIFRA. Risk assessments were conducted by EPA to assess dietary exposures from fosetyl-Al in food as follows:

i. Acute exposure . Acute dietary risk assessments are performed for a fooduse pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one day or single exposure. A toxicological endpoint for acute dietary toxicity was not selected. Therefore, a risk assessment for dietary food exposure was not conducted.

ii. Chronic exposure . In conducting this chronic dietary risk assessment the Dietary Exposure Evaluation Model (DEEM TM ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1991 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: The cPAD used for the chronic dietary analysis was 2.5 mg/kg/day. As the 10X safety factor was removed, the cPAD is equal to the RfD.

Dietary exposure for various subgroups of the U.S. population was estimated through the use of the (DEEM TM ) software. As the risk estimate was low for even the most highly exposed subpopulation, no anticipated residues were used. EPA assumed 100%% crop treated and tolerance level residues for all crops with tolerances as well as for the crops which are being evaluated in this action (i.e., cranberries).

iii. Cancer . Fosetyl-Al is unlikely to pose a carcinogenic hazard to humans. Therefore, a cancer risk assessment was not conducted.

2. Dietary exposure from drinking water . Fosetyl-Al is not expected to reach ground or surface water under most conditions. If it does reach surface water, it is expected to degrade rapidly. In ground water, it could persist because of potentially low microbial content. Biodegradation is the only apparent means of fosetyl-Al dissipation. Fosetyl-Al rapidly degrades in both aerobic and anaerobic soil to degradates that are widespread in nature (Al + 3 , phosphate, and ethanol). Under almost all uses, the degradation is expected to be so rapid that fosetyl-Al will not have time to move in soil, despite being highly soluble in water (120 g/L) and potentially mobile in soil. As it is stable to abiotic hydrolysis, fosetyl-Al could persist in pristine receiving waters with low microbial content.

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

The Agency uses the Generic Estimated Environmental Concentration (GENEEC) or the Pesticide Root Zone/Exposure Analysis Modeling System (PRZM/EXAMS) to estimate pesticide concentrations in surface water and SCI-GROW, which predicts pesticide concentrations in ground water. In general, EPA will use GENEEC (a tier 1 model) before using PRZM/EXAMS (a tier 2 model) for a screening-level assessment for surface water. The GENEEC model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. GENEEC incorporates a farm pond scenario, while PRZM/EXAMS incorporate an index reservoir environment in place of the previous pond scenario. The PRZM/EXAMS model includes a %% crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.

None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would ever exceed human health levels of concern.

Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %%RfD or %%PAD. Instead drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to fosetyl-Al they are further discussed in the aggregate risk sections in Unit III. E. of this preamble.

Based on the GENEEC and SCI-GROW2 models the estimated EECs of fosetyl-Al for chronic exposures are estimated to be 9.0 ppb for surface water and 0.00038 ppb for ground water. The chronic GENEEC value is adjusted (divided) by a factor of three when comparing the EEC for surface water to nonacute DWLOCs. This results in a chronic exposure estimate for surface water at 3 ppb.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Fosetyl-Al is currently registered for use on the following residential non-dietary sites: lawn, turf, and ornamental plants. The risk assessment was not conducted using the following residential exposure assumptions: Under the brand names CHIPO® Aliette WDG and Aliette® HG. CHIPO® Aliette WDG, the above uses are sold to professional applicators only which includes lawn care operators (LCO). For this reason, all residential uses of CHIPO® Aliette WDG are applied by the LCO. The use of Fosetyl-Al directly by the homeowner constitutes a minor use of the product since only small quantities of Aliette® HG are sold in the market. Short-term and intermediate-term exposures may occur for residential handlers and for post-application activities. Because the EPA did not select applicable short-term and intermediate-term dermal endpoints, a dermal risk assessment is not required. Long-term or chronic dermal exposure is not expected for residential uses.

In addition, EPA did not recommend a risk assessment for incidental hand-to-mouth ingestion by toddlers. While incidental ingestion of residues by toddlers may occur, no acute RfD was identified. Risk from intermediate-term incidental ingestion by toddlers is assessed by comparing exposure to the NOAEL from an oral study selected for either short or intermediate-term dermal or inhalation risk assessment. However, EPA reviews indicated that incidental hand-to-mouth ingestion is not a concern because the chronic oral endpoint (testicular degeneration) is unlikely to be relevant to toddlers and chronic oral exposure because fosetyl-Al has a relatively short half-life. EPA does not believe that the criteria for a quantitative risk has been met, therefore, no assessment of incidental ingestion was conducted.

Inhalation risk for non-occupational (e.g., residential) handlers is possible from mixing, loading and applying fosetyl-Al to turf using a lowpressure handwand. A risk assessment was conducted which assumes an application rate of 0.42 lb/ai per 1,000 ft 2 and 10,000 ft 2 area treated per day. The unit exposure was calculated at 0.03 (μg/lb/ai) with an absorption factor of 100%% and a body weight of 70 kg. The daily dose, which is equal to the application rate x area treated x unit exposure x absorption factor /body weight, is 0.0018 mg/kg/day. The short- and intermediate-term MOE equal to the short-term and intermediate-term NOAEL/ daily dose is 1.4 million for this activity, and is below EPA's level of concern for nonoccupational inhalation risk.

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

EPA does not have, at this time, available data to determine whether fosetyl-Al has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, fosetyl-Al does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that fosetyl-Al has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).

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

ii. Pre-natal and post-natal sensitivity . A three generation reproduction study in rats and developmental toxicity studies in rats and rabbits did not indicate any concern for pre-natal or post-natal effects in offspring or for reproductive effects. Therefore, there was no evidence of increased sensitivity due to pre-natal or post-natal exposure to fosetyl-Al.

iii. Conclusion . There is a complete toxicity data base for fosetyl-Al and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. The FQPA Safety Factor Committee determined that the 10X factor should be removed from fosetyl-Al for several reasons, including the facts that the toxicology data base is complete and there is no indication of increased susceptibility of rat or rabbit fetuses to in utero and/or post-natal exposure in the developmental and reproductive toxicity studies.

1. Acute risk . Acute aggregate risk is based upon the estimated risks from the combined exposures of food and drinking water sources. The EPA did not recommend an acute dietary endpoint for fosetyl-Al, therefore no acute aggregate risk assessment was conducted, and there is no expectation of acute risk.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to fosetyl-Al from food will utilize 3.1%% of the cPAD for the U.S. population, 2.7%% of the cPAD for females (13-50) years, 6.3%% of the cPAD for children 1-6 years old, and 4.2%% of the cPAD for Non-Hispanic (other than black or white). Based on the use pattern, chronic residential exposure to residues of the fosetyl-Al is not expected. In addition, there is potential for chronic dietary exposure to fosetyl-Al in drinking water. After calculating the DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate exposure to exceed 100%% of the cPAD.

3. Short-term risk . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Though residential exposure could occur with the use of fosetyl-Al, no toxicological effects have been identified for short-term toxicity. Therefore, the aggregate risk do not exceed the Agency's level of concern.

4. Intermediate-term risk . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Though residential exposure could occur with the use of fosetyl-Al, no toxicological effects have been identified for intermediate-term toxicity. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

5. Aggregate cancer risk for U.S. population . Fosetyl-Al is classified non-carcinogenic and is unlikely to pose a carcinogenic hazard to humans. Therefore, no cancer aggregate exposure assessment was done.

6. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to fosetyl-Al residues.

A detailed description of Rhone-Poulenc's “Method of Analysis for Fosetyl-Al Residues in Citrus,” was provided. This procedure is identical to that described in the Pesticide Analytical Manual, Volume II (PAM II). The studies reported in the subject petition validate the method on cranberries fortified at 0.05 ppm, 0.5 ppm and 5.0 ppm. The recoveries ranged from 70 to 91%%. The limit of quantitation (LOQ) was reported at 0.05 ppm. EPA concludes that the available GC/FPD-P methodology (PAM II) is adequate for enforcing tolerances and collecting residue data on fosetyl-Al residues in/on cranberries.

There are no Codex, Canadian, or Mexican international residue limits established for fosetyl-Al; therefore, the magnitude of the residue is not of concern for this action.

Therefore, the tolerance is established for residues of fosetyl-Al, aluminum tris( O -ethyl phosphonate), in or on cranberries at 0.5 ppm.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301032 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before October 17, 2000.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1,900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

2. Tolerance fee payment . If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VI.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301032, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and LowIncome Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). 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.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

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 requirednformation to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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

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

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/.

2. In person . The Agency has established an official record for this action under docket control number OPP-301037. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of February 18, 1999 (64 FR 8102) (FRL-6061-4) and the Federal Register of February 4, 2000 (65 FR 5639) (FRL-6398-9), EPA issued notices pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) announcing the filing of pesticide petitions (PP) for tolerance by Novartis Crop Protection, Inc., P.O. Box 18300, Greensboro, NC 27419. These notices included summaries of the petitions prepared by Novartis Crop Protection, Inc., the registrant. There were no comments received in response to the notices of filing.

The petitions requested that 40 CFR part 180 be amended by establishing tolerances for residues of the fungicide acibenzolar- S -methyl, benzo(1,2,3)thiadiazole-7-carbothioic acid- S -methyl ester, in or on bananas at 0.1 part per million (ppm), Brassica (cole) leafy vegetables at 1.0 ppm, fruiting vegetables at 1.0 ppm, leafy vegetables (except spinach) at 0.25 ppm and spinach at 1.0 ppm. Agency review of data submitted in support of the petitions indicated that a separate tolerance of 3.0 ppm for tomato, paste should also be established.

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

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

Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2), for tolerances for residues of acibenzolar- S -methyl on bananas at 0.1 ppm; Brassica (cole) leafy vegetables at 1.0 ppm; fruiting vegetables at 1.0 ppm; tomato, paste at 3.0 ppm; leafy vegetables (except spinach) at 0.25 ppm; and spinach at 1.0 ppm. EPA's assessment of exposures and risks associated with establishing the tolerances follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by acibenzolar- S -methyl are discussed in this unit as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies reviewed.

The dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intra species differences. No NOAEL for developmental toxicity was observed in the rat developmental study for acibenzolar- S -methyl. Because no NOAEL was observed, an additional 3X uncertainty factor is being applied to the 100X uncertainty factor to account for intra- and inter-species variability, resulting in a 300X UF for toxicological endpoints derived from this study.

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA Safety Factor.

For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.

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

1. Dietary exposure from food and feed uses. No tolerances have previously been established for acibenzolar- S -methyl. Risk assessments were conducted by EPA to assess dietary exposures from acibenzolar- S -methyl in food as follows:

i. Acute exposure . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1 day or single exposure. The Dietary Exposure Evaluation Model (DEEM® analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. After a Tier I acute dietary analysis based on tolerance level residues and assuming 100 percent crop treated resulted in risk estimates that were unacceptably high, a probabilistic (i.e., Monte Carlo) acute dietary exposure assessment was performed using the distribution of residues observed in the crop field trials and projected percent market share information (leafy vegetables,16%%; fruiting vegetables 14%%; brassica vegetables (2%%). The refined analysis estimated acute dietary exposure of females, 13-50 years old, to acibenzolar- S -methyl at the 99.9th percentile of exposure.

ii. Chronic exposure . In conducting this chronic dietary risk assessment the Dietary Exposure Evaluation Model (DEEM® analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: that residues would be present in or on treated crops at tolerance levels and that 100%% of crops would be treated.

iii. Anticipated residue and percent crop treated information . Section 408(b)(2)(E) authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide chemicals that have been measured in food. If EPA relies on such information, EPA must require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. Following the initial data submission, EPA is authorized to require similar data on a time frame it deems appropriate. As required by section 408(b)(2)(E), EPA will issue a data call-in for information relating to anticipated residues to be submitted no later than 5 years from the date of issuance of this tolerance.

Section 408(b)(2)(F) states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if the Agency can make the following findings: Condition 1, that the data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue; Condition 2, that the exposure estimate does not underestimate exposure for any significant subpopulation group; and Condition 3, if data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of percent crop treated (PCT) as required by section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The Agency used percent crop treated (PCT) information as follows:

A probabilistic (i.e., Monte Carlo) acute dietary risk assessment for acibenzolar- S -methyl was based on the following PCT projections: leafy vegetables (16%%); fruiting vegetables (14%%); brassica vegetables (2%%).

The Agency believes that the three conditions previously discussed have been met. With respect to Condition 1, EPA finds that the PCT information described above for acibenzolar- S -methyl on leafy vegetables, fruiting vegetables and brassica vegetables is reliable and has a valid basis. The PCT information is based on reliable estimates of the potential market for acibenzolar- S -methyl and the petitioner's estimate of the market share it expects to capture. Based on available information, including the petitioner's research and experience in these markets, information on other registered pesticides, and prevalence of target weeds, EPA believes the petitioner's estimates do not underestimate the percent of these crops that may be treated. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which acibenzolar- S -methyl may be applied in a particular area.

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

The Agency uses the Generic Estimated Environmental Concentration (GENEEC) or the Pesticide Root Zone/Exposure Analysis Modeling System (PRZM/EXAMS) to estimate pesticide concentrations in surface water and SCI-GROW, which predicts pesticide concentrations in groundwater. In general, EPA will use GENEEC (a tier 1 model) before using PRZM/EXAMS (a tier 2 model) for a screening-level assessment for surface water. The GENEEC model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. GENEEC incorporates a farm pond scenario, while PRZM/EXAMS incorporate an index reservoir environment in place of the previous pond scenario. The PRZM/EXAMS model includes a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.

None of these models include consideration of the impact that processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would ever exceed human health levels of concern.

Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %%RfD or %%PAD. Instead, drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to acibenzolar- S -methyl they are further discussed in the aggregate risk sections below.

Based on the GENEEC and SCI-GROW models the estimated environmental concentrations (EECs) of acibenzolar- S -methyl in surface water and ground water for acute exposures are estimated to be 0.64 parts per billion (ppb) for surface water and negligible for ground water. The EECs for chronic exposures are estimated to be 0.02 ppb for surface water and negligible for ground water.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Acibenzolar- S -methyl is not registered for use on any sites that would result in residential exposure.

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

EPA does not have, at this time, available data to determine whether acibenzolar- S -methyl has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, acibenzolar- S -methyl does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that acibenzolar- S -methyl has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).

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

ii. Prenatal and postnatal sensitivity . The Agency concluded that there is concern for the increased susceptibility of infants and children to exposure to acibenzolar- S -methyl based on the developmental toxicity study in rats where treatment-related developmental malformations, anomalies and variations were observed at doses equal to or below the NOAEL for maternal toxicity.

iii. Conclusion . The toxicology database for Acibenzolar- S -Methyl is incomplete. Subchronic neurotoxicity, developmental neurotoxicity and an additional mutagenicity study (Ames study) are required. The Agency concluded that the FQPA Safety Factor be retained at 10X based on (1) a quantitative increase in susceptibility of fetuses (compared to dams) in the rat developmental toxicity study (developmental malformations occurred at a dose level which was considerably below the NOAEL for maternal toxicity); (2) a concern that the treatment-related developmental malformations (umbilical hernia) observed in rat fetuses occurred at the lowest dose tested (NOAEL was not established) in the rat developmental toxicity study; (3) the requirement for a developmental neurotoxicity study in rats based on the occurrence of treatment-related effects in nervous system tissues in the rat developmental toxicity study; and (4) the potential for the requested uses of acibenzolar- S -methyl to result in acute and chronic dietary exposure. When assessing acute and chronic dietary exposures, the Agency concluded that the FQPA safety factor should be retained at 10X for the female, 13-50 years old, population subgroup (the only population subgroup of concern for acute exposures). When assessing chronic dietary exposure, however, the Committee concluded that the safety factor can be reduced to 3X for the general population, including infants and children (with the exception of the aforementioned female 13-50 population subgroup) since there is no concern for increased susceptibility due to in utero exposure for persons other than females 13-50, but there still remains a data gap for a developmental neurotoxicity study in rats.

To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates DWLOCs which are used as a point of comparison against the model estimates of a pesticide's concentration in water (EECs). DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + residential exposure). This allowable exposure through drinking water is used to calculate a DWLOC.

A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the USEPA Office of Water are used to calculate DWLOCs: 2L/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Actual body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: acute, short-term, intermediate-term, chronic, and cancer.

When EECs for surface water and groundwater are less than the calculated DWLOCs, OPP concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which OPP has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because OPP considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, OPP will reassess the potential impacts of residues of the pesticide in drinking water as a part of the aggregate risk assessment process.

1. Acute risk . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure (at the 99.9th percentile of exposure) from food to acibenzolar- S -methyl will occupy 87%% of the aPAD for females 13 years and older, the only population subgroup of concern for acute dietary exposure (i.e., no significant acute effects relevant to other subgroups were identified in acute toxicity studies for acibenzolar- S -methyl). In addition, there is potential for acute dietary exposure to acibenzolar- S -methyl in drinking water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate exposure to exceed 100%% of the aPAD.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to acibenzolar- S -methyl from food will utilize 6%% of the cPAD for the U.S. population, 52%% of the cPAD for females 13 to 50 years old, 3%% of the cPAD for infants less than 1 year old and 11%% of the cPAD for children 1 to 6 years old, the subgroup of children with the highest estimated food exposure to acibenzolar- S -methyl. There are no residential uses for acibenzolar- S -methyl that result in chronic residential exposure to acibenzolar- S -methyl. In addition, there is potential for chronic dietary exposure to acibenzolar- S -methyl in drinking water. After calculating the DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate exposure to exceed 100%% of the cPAD.

3. Short-term risk . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Acibenzolar- S -methyl is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

4. Intermediate-term risk . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Acibenzolar- S -methyl is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

5. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to acibenzolar- S -methyl residues.

The petitioner has proposed a residue analytical method for tolerance enforcement that uses liquid chromatography with UV detection (HPLC-UV). This method is currently being validated by the Analytical Chemistry Branch laboratories, BEAD (7503C), Office of Pesticide Programs. Upon successful completion of the EPA validation and the granting of this registration the method will be forwarded to FDA for publication in a future revision of the Pesticide Analytical Manual, Vol-II (PAM-II). Prior to publication in PAM-II and upon request, the method will be available prior to the harvest season from the Analytical Chemistry Branch (ACB), BEAD (7503C), Environmental Science Center, 701 Mapes Road, Ft George G. Meade, MD 20755-5350; contact Francis D. Griffith, Jr, telephone (410) 305-2905, e-mail griffith.francis@epa.gov. The analytical standards for this method are also available from the EPA National Pesticide Standard Repository at the same location.

There are no maximum residue limits for acibenzolar- S -methyl that have been established by Codex or in Canada or Mexico; therefore, no compatibility issues exist with Codex in regard to the proposed U.S. tolerances discussed in this review.

The registration of acibenzolar- S -methyl will be conditioned upon submission of the following toxicology studies: Developmental neurotoxicity study in rats; subchronic neurotoxicity study in rats; and an additional mutagenicity study (Ames test).

Therefore, tolerances are established for residues of acibenzolar- S -methyl, benzo(1,2,3)thiadiazole-7-carbothioic acid- S -methyl ester, in or on bananas at 0.1 ppm; Brassica (cole) leafy vegetables at 1.0 ppm; fruiting vegetables at 1.0 ppm; tomato, paste at 3.0 ppm; leafy vegetables (except spinach) at 0.25 ppm; and spinach at 1.0 ppm

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301037 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before October 17, 2000.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

2. Tolerance fee payment . If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VI.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301037, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). 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.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

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 this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

You may view an electronic version of this direct final rule at BLM's Internet home page: www.blm.gov. You may also comment via the Internet to: WOComment@blm.gov. Please also include “Attention: AC-49” and your name and return address in your Internet message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly at (202) 452-5030.

Written comments on the direct final rule should be specific, should be confined to issues pertinent to the rule, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the rule which the commenter is addressing. BLM may not necessarily consider or include in the Administrative Record comments which BLM receives after the close of the comment period (See DATES ) or comments delivered to an address other than those listed above (See ADDRESSES ). Comments, including names, street addresses, and other contact information of respondents, will be available for public review at BLM's offices at 1620 L Street, NW., Washington, DC, during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except Federal holidays. Individual respondents may request confidentiality. If you wish to request that BLM consider withholding your name, street address, and other contact information (such as: Internet address, FAX or phone number) from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your comment. BLM will honor requests for confidentiality on a case-by-case basis to the extent allowed by law. BLM will make available for public inspection in their entirety all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses.

On April 13, 2000, the United States Senate passed H.R. 3063, which was then signed into law by the President on April 28, 2000, as Public Law 106-191. This law amended the Mineral Leasing Act to increase the maximum acreage of Federal sodium leases that a person can lease in any one state from 15,360 acres to 30,720, in cases where BLM finds it is necessary to facilitate an economical mine. The acreage limit for sodium leases in all other cases remains 5,120 acres. According to the bill, existing leases for sodium (or trona) in southwestern Wyoming cover the largest deposits anywhere on public lands, and the acreage limitations are causing difficulty for three of the four major producers operating there. As Congress points out, the present acreage limitation of 15,360 acres has been in place since 1948, while acreage limits for other minerals have more recently been increased to much larger limits. For example, the single-state lease acreage limit for coal is 46,080 acres; 96,000 acres for potassium; and 246,080 acres for oil and gas.

Congress found that the increase in acreage to 30,720 is warranted by modern mine technology, changes in industry economics, greater global competition, and the need to conserve the Federal resource. Increased acreage limits will help existing sodium lessees avoid premature closure, make better long-term business decisions about infrastructure investments based on the potential for more available acreage, and otherwise maintain the vitality of the domestic sodium industry.

The primary product of trona mining is soda ash (sodium carbonate), a basic industrial chemical that is used for glass-making and a variety of consumer products, including baking soda, detergents, and pharmaceuticals.

The regulations governing solid mineral leasing for minerals other than coal or oil shale were substantially revised on October 1, 1999 (64 FR 53536). This action was taken to comply with President Clinton's government-wide regulatory reform initiative to eliminate unnecessary regulations, and streamline and rewrite necessary regulations in plain English. Under the previous rule each solid mineral commodity had its own separate regulations, much of which was repeated in each set of regulations. The new rule combined these solid minerals regulations into one set of regulations, streamlined, updated and re-written in plain English, and clarified the responsibilities of interested parties.

The new rule includes a chart at 43 CFR 3503.37 which displays all the acreage limitations for solid mineral leases, including the maximum acreage allowed under a single lease, the maximum acreage a person can lease in a single state, and the maximum acreage held by one person nationwide. Section 3503.38 explains how BLM calculates your acreage to see if it is within the limits. The limits themselves are generally set by statute, particularly by the Mineral Leasing Act.

The passing of Public Law 106-191 means this chart is no longer accurate. It presently reads that the state acreage limit for sodium is 5,120 acres, which may be increased to 15,360 acres in order to facilitate an economic mine. As discussed above, Congress has set the allowable limit at 30,720 acres.

If this rule is adopted, the chart would be revised to show that the state acreage limit for sodium is still 5,120 acres, but it may be increased to 30,720 to facilitate an economic mine. Where a lessee raises economic concerns, BLM could allow them to hold 30,720 acres. The current rule sets that limit at 15,360 acres where the lessee raises economic concerns.

We believe this change accurately captures the intent of Public Law 106-191. Congress has not declared that all operators must be allowed to increase their state holdings to 30,720. Rather, Congress said that where circumstances mean an operator cannot run an economically viable sodium operation on 5,120 acres of Federal leases in a single state, BLM may lease up to 30,720 acres to a single lessee to facilitate an economic mine. Retaining the general limit at 5,120 acres (as opposed to the maximum 30,720 acres) is required by law; Public Law 106-191 only amended the expandable limit in the case of economic concerns. Absent that concern, the limit is still set by law at 5,120 acres. See 30 U.S.C. 184(b)(1).

This rule is a direct final rule. This means, if BLM does not receive any substantive, adverse comments by September 18, 2000, the rule will become effective as a final rule on October 17, 2000 . However, if BLM receives any adverse comments expressing substantive concerns, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect, and we will issue a new proposal with a further comment period.

The Administrative Procedure Act (5 U.S.C. 551 et seq. ), which governs how Federal agencies promulgate regulations, exempts certain regulations from the required notice and comment for “good cause” (5 U.S.C. 553). Many agencies find that, for noncontroversial rules, the public interest in efficiency satisfies the “good cause” exemption. To that end, the former Administrative Conference of the United States (ACUS) encouraged direct final rules as a fair method for making Federal rulemaking actions simpler and more efficient. In situations where an agency does not expect public concern, the agency can shorten the rulemaking process by issuing a rule that will be final unless a negative comment is received during a set period following publication. Thus, if the agency is wrong and there is public concern over the proposed action, the agency can then go through the more thorough process of proposing a rule and seeking public input. For more information, see ACUS Recommendation 95-4, Procedures for Noncontroversial and Expedited Rulemaking, published in the Federal Register at 60 FR 43108 (Aug. 18, 1995).

We have chosen the direct final rule approach because Public Law 106-191 requires us to consider allowing persons to lease greater acres for sodium in a single state, and it is important to our customers that our regulations accurately reflect the law. Thus, we do not expect any opposition to this rule. As discussed above, Congress has already increased the acreage limitation, and BLM is already bound by law to consider leasing larger acreage to address the economic concerns in southwestern Wyoming and elsewhere. The direct final rule format is simply a more efficient way to accomplish this purpose.

BLM has prepared an environmental assessment (EA) and has found that this direct final rule would not constitute a major Federal action significantly affecting the quality of the human environment under section 102(2)(C) of the Environmental Protection Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). As discussed above, this rule would implement a change that has already been made by Congress. Therefore, a detailed statement under NEPA is not required. We have placed the EA and the Finding of No Significant Impact (FONSI) on file in our Administrative Record at the address specified in the ADDRESSES section. The public may review these documents, and anyone wishing to submit comments in response to the EA and FONSI may do so in accordance with the Written Comments section above.

This direct final rule is not a significant regulatory action and is not subject to review by Office of Management and Budget under Executive Order 12866. Because this rule only changes our regulations to accurately reflect what the law already requires BLM to do, this rule itself will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This rule will not create any inconsistency or otherwise interfere with an action taken or planned by another agency. This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the right or obligations of their recipients; nor does it raise novel legal or policy issues.

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following:

(1) Are the requirements in the rule clearly stated?

(2) Does the rule contain technical language or jargon that interferes with its clarity?

(3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?

(4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading.)

(5) Is the description of the rule in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the rule? How could this description be more helpful in making the rule easier to understand? Please send any comments you have on the clarity of the regulations to the address specified in the ADDRESSES section.

Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as amended, 5 U.S.C. 601-612, to ensure that government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. This rule, as described above, merely implements a statutory change to the existing regulations which apply to leasing Federal sodium resources, and thus the rule change itself will not have a significant impact on any small entities. Rather, it is the legislation which affects these entities. The legislation affects all small entities active in leasing sodium from the Federal government. Those approximately 25 entities currently holding a Federal sodium lease and who qualify as individuals or small businesses may be affected by the legislation. However, this rule makes no substantive change beyond what Congress has already enacted. Therefore, BLM has determined under the RFA that this direct final rule would not have a significant economic impact on a substantial number of small entities.

This direct final rule is not a “major rule” as defined at 5 U.S.C. 804(2). This rule merely implements a change to the state acreage limits that has been amended by Congress. This rule is limited to making BLM's regulations consistent with the law.

This direct final rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year; nor does this direct final rule have a significant or unique effect on State, local, or tribal governments or the private sector. As discussed above, this rule merely changes BLM's sodium leasing regulations to comply with the new law. Therefore, BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. )

This rule does not represent a government action capable of interfering with constitutionally protected property rights. The rule is limited to changes which reflect Congress's amendment to the acreage a person can lease for sodium in any one state. Therefore, the Department of the Interior has determined that the rule would not cause a taking of private property or require further discussion of takings implications under this Executive Order.

This rule 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. The rule is limited to changes which reflect Congress's amendment to the state acreage limits for sodium leases. Therefore, in accordance with Executive Order 13132, BLM has determined that this rule does not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.

Under Executive Order 12988, the Office of the Solicitor has determined that this rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This rule does not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated possible effects on Federally recognized Indian tribes and have determined that there are no effects on the tribes. Since this rule does not propose significant changes to BLM policy and does not specifically involve Indian reservation lands, we have determined that the government-to-government relationships should remain unaffected.

The principal authors of this rule are Christopher Fontecchio of the Regulatory Affairs Group and Philip Allard of the Solid Minerals Group, Bureau of Land Management, Washington, DC.

This is a synopsis of the Commission's Report and Order, MM Docket No. 99-293, adopted July 19, 2000, and released July 28, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

This allotment will be short-spaced to Stations CBOF, Channel 271A, Brockville, Ontario, and vacant Channel 270A at Cornwall, Ontario, Canada. Therefore, Canadian concurrence in these allotments, as specially negotiated, short-spaced allotments, has been requested but has not yet been received. However, rather than delay any further the opportunity to file applications for the vacant channel at Saranac Lake, as well as applications to implement the channel change for Station WRCD at Canton, New York, and increase the Class A facilities of Station WCVT, Stowe, Vermont, we will substitute Channel 227A for Channel 269A at Saranac Lake, and substitute Channel 268C2 for Channel 268A at Canton. If a construction permit is granted prior to the receipt of formal concurrence in the allotments by the Canadian Government, the construction permit will include the following condition: “Operation with the facilities specified herein is subject to modification, suspension, or termination without the right to hearing, if found by the Commission to be necessary in order to conform to the Canada-United States FM Broadcast Agreement or if objected to by Industry Canada.” See 64 FR 54269, October 6, 1999.

A filing window for Channel 227A at Saranac Lake, NY, will not be opened at this time. Instead, the issue of opening a filing window for this channel will be addressed by the Commission in a subsequent order.

This final rule will primarily reduce regulatory burden on industry by incorporating changes into the HMR based on RSPA's own initiative and petitions for rulemaking submitted in accordance with 49 CFR 106.31. This final rule is also consistent with the goals of the President's Regulatory Reinvention Initiative. On March 4, 1995, the President directed Federal agencies to perform an extensive review of all agency regulations and eliminate or revise those requirements that are outdated or in need of reform. In a continuing effort to review the HMR for necessary revisions, RSPA is eliminating, revising, clarifying and relaxing certain regulatory requirements in this final rule. On September 30, 1999, RSPA published a notice of proposed rulemaking (NPRM) under Docket RSPA-99-6213 (HM-218) (64 FR 53166). The NPRM contained information concerning each proposal and invited public comment. Readers should refer to the NPRM for additional background discussion.

RSPA received 22 comments in response to the NPRM. These comments were submitted by representatives of trade associations, hazardous materials consulting firms, chemical manufacturers, and carriers of hazardous materials. The majority of commenters expressed support for various proposals, but several raised concerns about certain provisions in the proposal that are discussed below.

The following is a section-by-section summary of changes and, where applicable, a discussion of comments received.

Paragraph (a)(2) is revised to permit a person applying for an exemption or modification of an exemption to include an electronic mail address in the application. RSPA will use this information to transmit official documents to an applicant. This change was not proposed in the notice, is only administrative or procedural, and will be of significant benefit to exemption applicants by expediting the transmission of documents and reducing costs inherent with the handling and mailing of paper copies. This same change is also made to the other exemption and approval application provisions in §§ 107.107(b)(3), 107.109(a)(3), and 107.705(a)(4).

RSPA is updating the incorporation by reference of the American Society of Mechanical Engineers (ASME) Code to the 1998 Edition, without the 1999 Addenda.

One comment received in response to this proposal stated that the 1999 Addenda needs to be adopted in order for the 1998 Code to be used. RSPA disagrees with the commenter. RSPA has latitude in determining whether to fully incorporate, to except certain provisions of a standard, or to impose more stringent requirements than those contained in a material incorporated by reference, and has done so in the past. The structural integrity requirements for pressure vessels, prescribed in § 178.337-3 of the HMR for cargo tank motor vehicles, provide for the maximum stress value prescribed in Section VIII of the ASME Code or 25 percent of the tensile strength of the material used. The currently referenced 1992 Edition and the new 1998 Edition of the ASME Code, Section VIII, Division I, mandate a safety factor of 4:1. The 1999 Addenda to Section VIII provides for reducing the safety factor to 3.5:1. RSPA does not have sufficient experience data to conclude that this reduced safety factor adequately considers dynamic loads that are normally encountered during transportation conditions. Therefore, any deviation from the currently required 4:1 safety factor must be approved under the terms of a DOT exemption.

RSPA is revising the definition of “Aerosol” by removing the reference to a “metal” receptacle. This revision will more closely align the HMR definition with the UN Recommendations with regard to the material of construction for a non-refillable receptacle. Four comments were received to this proposal expressing agreement with the revision. One commenter stated that RSPA's definition for aerosol does not authorize pure compressed gases, as in the UN Recommendations, and requested that the definition be revised to include the authorization. This request is outside the scope of this rulemaking. Another commenter agreed with the proposed change to the aerosol definition, but stated that it is inconsistent with the change proposed in the NPRM in § 171.11. The revision in § 171.11(a)(14) is made to clarify that aerosols transported in the United States (US) must be in metal packagings if the capacity of the packaging is more than 4 fluid ounces. The revision in § 171.8 is made to authorize aerosols in non-metal containers if the capacity of the packaging is less than 4 fluid ounces.

As provided by § 173.306(a)(1), limited quantities of compressed gases (including aerosols) are authorized in non-specification containers of up to 4 fluid ounce capacity (7.22 cubic inches) each. As provided in § 173.306(a)(3), aerosols may be packaged in metal containers of up to one liter capacity.

RSPA is also revising the definition of “EX number.” This change is made to recognize that RSPA assigns EX numbers to track materials approved by the Associate Administrator for Hazardous Materials Safety under the provisions of § 173.56, regardless of whether they are approved under one of the explosives classifications or under a different hazard class.

The definition of “Placarded car” is revised to remove reference to a “FUMIGATION placard.” As used in the HMR, a railcar containing lading which has been fumigated or is undergoing fumigation is required to display the “FUMIGANT marking” shown in § 173.9.

RSPA is removing paragraph (d)(5), which requires an indication on a shipping paper that a material is a poison. The International Civil Aviation Organization (ICAO) Technical Instructions already require the shipping paper to identify subrisks; therefore, paragraph (d)(5) is unnecessary. RSPA is adding a new paragraph (d)(5) to require that the original approval (EX) number or traceable product code issued to an air bag inflator or seat-belt pretensioner be entered on the shipping paper in association with the basic description, as specified in § 173.166(c). Currently, shipping papers for devices offered under the ICAO Technical Instructions are not required to contain the EX number or product code for an approved inflator or pretensioner. RSPA believes this shipping paper provision should include air bags or seat-belt pretensioners when offered and transported in the US under the authority of international regulations. Devices containing a pressure vessel and transported as Division 2.2 (UN3353) are excluded from this shipping paper notation requirement. In addition, paragraph (d)(14) is revised to clarify that “Aerosols” transported in the US under the provisions of the ICAO Technical Instructions must be in metal packagings if the packaging exceeds 7.22 cubic inches (see earlier preamble discussion to § 171.8).

RSPA is revising paragraph (a) to clarify that the shipping paper documentation required under the International Maritime Dangerous Goods Code (IMDG) or the International Atomic Energy Agency (IAEA) regulations must be written in English as currently required by § 172.201(a)(2). Similar to the change made to § 171.11 discussed earlier in this preamble, RSPA is adding paragraph (b)(19) to require that the approval (EX) number or traceable product code be entered on shipping papers for other than Division 2.2 airbag inflators and seat belt pretensioners that are offered for transportation under the IMDG Code.

Paragraphs (b)(2) and (b)(6) are revised to clarify that proper shipping names denoted with an “A” or “W” in Column (1), in the Hazardous Materials Table (HMT), may be used to describe hazardous materials transported in any mode when all applicable requirements are met.

RSPA is removing paragraph (c)(8), which is specific to determining a proper shipping description for hazardous substances, as it is redundant with § 172.101(c). One commenter disagreed with this revision, stating that this paragraph provides valuable instruction on how to assign a proper shipping name for a hazardous substance, and is the only place in the HMR that states that the list of Hazardous Substances is provided in Appendix A. RSPA disagrees with this commenter. A hazardous substance is assigned a proper shipping name the same way any other hazardous material is assigned a proper shipping name. Further, the definition of a hazardous substance in § 171.8 refers to Appendix A for the list of hazardous substances. In addition, in this final rule, we are revising a reference to § 172.101(c)(8) in Appendix A to Part 172 to reference § 172.101(c) in its entirety.

A new paragraph (c)(8) is added to allow the word “liquid” or “solid”to be included as part of the proper shipping name when a hazardous material specifically listed by name may, due to differing physical states, be a liquid or solid. This is consistent with existing provisions in the UN Recommendations, the ICAO Technical Instructions and the IMDG Code.

The entry “Chemical kits or First aid kits ( containing hazardous materials )” is separated into two individual entries for easier reference. In addition, the wording “(containing hazardous materials)” is removed.

The entry “ 1-Chloro-3-Bromopropane” is changed to read “1-bromo-3-chloropropane” to be in accordance with the UN Recommendations.

A new entry “Fumigated transport vehicle or freight container, see § 173.9” is added to reference § 173.9 which contains requirements for transporting fumigated lading. This change will facilitate the location of these requirements by readers.

For the entries, “Polychlorinated biphenyls, liquid” and “Polychlorinated biphenyls, solid,” UN2315, in Column 1, the symbols “A, W” are removed and a new Special Provision 140 is added in Column 7. Special Provision 140 states that the material is only regulated when it meets the defining criteria for a hazardous substance or a marine pollutant. In addition, as requested by a commenter, Special Provision 140 is revised to state that the Column 5 reference is modified to read “III” on those occasions when the material is offered for transportation or transported by highway. Two commenters disagreed with removal of the symbols “A, W” stating that the ICAO Technical Instructions and the IMDG Code currently regulate Polychlorinated biphenyls (PCBs) in liquid and solid form in any amount and that this inconsistency will cause confusion. RSPA disagrees with these commenters. The ICAO Technical Instructions regulate PCBs only when they are present in a reportable quantity, as stipulated in Special Provision A97 and State Variation US4. The IMDG Code regulates PCBs in all quantities; however, we do not believe that it is necessary to adopt this approach because it will place unnecessary burden on shippers and carriers within the U.S.

For the entry “Air, compressed,” Special Provision 78 is added in Column 7 to specify that only mixtures with oxygen concentrations of 23.5 percent or less may be transported under this entry. An OXIDIZER label is not required for mixtures in these concentrations. This aligns the HMR with a recent amendment adopted in the eleventh revised edition of the UN Recommendations. In addition, for the entry “Rare gases and oxygen mixtures, compressed,” Special Provision 79 is added to state that this entry may not be used for mixtures meeting the criteria for oxidizing gas in § 171.8. RSPA believes that it is more appropriate to use a generic oxidizing gas entry ( e.g., Compressed gas, oxidizing, n.o.s.) when such mixtures meet the criteria of an oxidizing gas.

For the entry, “Sodium chlorate, aqueous solution,” PG II, Special Provision “B6” is removed. A commenter pointed out that similar entries (Potassium chlorate, aqueous solution and Chlorates, inorganic, aqueous solution) are not assigned this Special Provision. RSPA agrees that Special Provision B6 was mistakenly assigned.

RSPA is revising a number of HMT entries that contain inconsistently applied vessel stowage codes in column 10B. These codes pertain to segregation of Division 2.3 and 6.1 and Class 8 hazardous materials with foodstuffs. These changes align the HMR with Amendment 30 to the IMDG Code.

In Appendix A to § 172.101, in number 3., the reference to § 172.101(c)(8) is revised. This final rule is removing § 172.101(c)(8); therefore, the reference in Appendix A is revised to refer to § 172.101(c) for determining a proper shipping name. In addition, “Acrolein” is added to Table 1.—Hazardous Substances Other Than Radionuclides with a reportable quantity of 1 pound (0.454 kg). This entry was inadvertently omitted in the reprinting of the HMR.

In paragraph (c)(1), a new Special Provision 78 is added to specify that the entry “Air, compressed” may not be used to describe compressed air which contains more than 23.5% of oxygen. This change aligns the HMR with a recent amendment adopted in the eleventh revised edition of the UN Recommendations. A new Special Provision 79 is added to specify that the entry “Rare gases and oxygen mixtures, compressed” may not be used for gas mixtures that meet the criteria for an oxidizing gas. This change ensures that the correct emergency response information is provided. We are also adding a new Special Provision 140 to the entries “Polychlorinated biphenyls, liquid” and “Polychorinated biphenyls, solid,” UN 2315 to state that the material is only regulated when it meets the defining criteria for a hazardous substance or marine pollutant and that the material may be assigned packing group III when transported by highway or rail. This change is consistent with international regulations.

In paragraph (c)(5), we are revising Special Provision N10 which pertains to lighters. Currently, approvals for lighters require the approval number to be marked on the package and on the shipping papers. We believe that this requirement should be contained in the HMR. Also, in paragraph (c)(5), we are adding Special Provision N20, which was inadvertently removed in a previous rulemaking. Special Provision N20 authorizes the use of a 5M1 non-bulk multi-wall paper bag and is currently assigned to the entry “Environmentally hazardous substances, solid, n.o.s.”, in column 7, of the § 172.101 Hazardous Materials Table.

Paragraph (a)(1)(ii) is revised to clarify that when a reproduced shipping paper identifies hazardous materials entries by highlighting the basic description in a contrasting color, the packing group also must be highlighted. The packing group is identified as a basic description element by § 172.202(a)(4) and (b).

For consistency with paragraphs (a)(1), (a)(2) and the ICAO Technical Instructions, paragraph (c)(1) is revised to change the word “packed” to read “packaged.” To reduce costs, a transition period of 10 years is provided for depletion of preprinted shipping papers showing the word “packed”.

In response to a petition for rulemaking from the American Trucking Associations (ATA) [P-1364], RSPA is amending §§ 172.332(a) and 172.336(b) to authorize the use of white square-on-point configurations for display of identification number markings, regardless of whether a placard is required for that material. RSPA agrees with ATA that it is unnecessarily restrictive to prevent the use of identification number markings displayed on square-on-point configurations in conjunction with placards. Commenters brought to our attention that certain section references were inadvertently omitted from § 172.332(a) and the first sentence of § 172.336(b) was not easily understood. RSPA agrees with both commenters and has revised the sections accordingly.

RSPA is revising the Class 9 table entry to reference § 172.504(f)(9), which provides an exception from displaying a Class 9 placard for domestic transportation. In addition, paragraph (f)(8), regarding the placarding of a material classed as a combustible liquid that also meets the definition of a Class 9, is removed. A new paragraph (f)(8) is added to provide an exception, in domestic transportation, from meeting the requirement to display a POISON INHALATION HAZARD placard on a transport vehicle if it already displays a POISON GAS placard.

Paragraph (a) is revised to change the wording “motor vehicle” to “transport vehicle” the second time it appears in the first sentence. This corrects an inaccurate usage of the term “motor vehicle”. This change clarifies that each placard on a motor vehicle must be clearly visible from the direction it faces, except from the direction of another transport vehicle to which the motor vehicle is coupled.

Paragraph (b)(3) is revised to clarify that text is required on the DANGEROUS placard. In addition, the paragraph is revised to clarify that text is not required on an OXYGEN placard when the specific identification number is displayed on the placard.

Paragraph (c)(2) is revised to clarify that hazardous materials transported under the proper shipping name “Consumer commodity” do not require emergency response information, regardless of whether the hazard class is “ORM-D” as provided by the HMR, or “9” as provided by the ICAO Technical Instructions.

In § 172.704, paragraph (b) is revised to add the reference, “29 CFR 1910.1200,” in addition to 29 CFR 1910.120 issued by the Department of Labor's Occupational Safety and Health Administration (OSHA). This change is necessary to clarify that any relevant training received due to OSHA's requirements need not be repeated to meet training requirements in the HMR.

RSPA proposed to revise paragraphs (a)(1)(i), (ii) and (iii) to clarify that the one-gram limit for Division 6.1 material per inner receptacle applies only to materials that are a poison inhalation hazard. One commenter disagreed with this proposal because it has been shipping ethylene oxide, which is a Division 2.3 material, under an approval as provided by § 173.4(c). Ethylene oxide is a poison inhalation hazard material in Hazard Zone D. Adoption of this proposal would restrict transportation of ethylene oxide as a small quantity to 1 gram, even under the terms of an approval. RSPA has considered this comment and believes that a restriction on materials that are Division 6.1, Packing Group I, Hazard Zone A or B only, is necessary. Therefore, the provisions in §§ 173.4(a)(1)(i), (ii) and (iii) are revised to clarify that Division 6.1, Packing Group I, materials in Hazard Zone A and B are restricted to 1 gram. In addition, a note is added to § 173.4(a)(6)(ii) to clarify that the same package need not be subjected to all of the tests specified in § 173.4; another identical package may be used for each test.

In § 173.5, paragraph (a) is revised to grant an exception from the emergency response information and training requirements in subparts G and H of Part 172, respectively, to Class 2 agricultural products that are transported over local roads between fields of the same farm. Agricultural products other than Class 2 materials are completely excepted from the HMR when transported between fields of the same farm. RSPA believes that this limited relief from emergency response information and training requirements is warranted for Class 2 materials.

RSPA is adding a new paragraph (e) that incorporates and expands the existing exception in § 173.62(d) for Class 1 explosives owned by the Department of Defense (DOD). Currently, under § 173.62(d), DOD is authorized to ship its Class 1 materials that were packaged prior to January 1, 1990, without regard to the current packaging requirements in Part 178. In addition to this exception, RSPA is excepting these packagings from the current marking and labeling requirements, provided they are marked and labeled in conformance with the requirements of the HMR that were in effect at the time they were originally marked and labeled. This will alleviate the need to re-mark and re-label DOD stockpiled hazardous materials. Because the revised exception applies to marking and labeling of DOD packagings in addition to the Part 178 packaging requirements, RSPA is placing these exceptions in § 173.7 and is removing current paragraph (d) in § 173.62.

In § 173.12, paragraph (b)(3) is revised to clarify that materials poisonous by inhalation are not authorized in lab packs.

In § 173.13, paragraph (a) is revised to clarify that use of the CARGO AIRCRAFT ONLY label is required. As discussed in the preamble to Docket HM-222 [May 30,1996; 61 FR 27169], it was RSPA's intention to except use of primary and subsidiary hazard labels only. Hazardous materials transported under the provisions of § 173.13 are not authorized for transportation by passenger-carrying aircraft. When transported without the CARGO AIRCRAFT ONLY label, RSPA believes that some packagings offered for transportation under § 173.13 may inadvertently be placed on a passenger-carrying aircraft in violation of the HMR. This change is consistent with § 172.402(c) regarding display of the CARGO AIRCRAFT ONLY label.

In § 173.32, paragraph (e)(3) is amended to authorize smaller markings on specification portable tanks that were originally authorized to be marked with letters and numerals as small as 1/8 of an inch in height. The specification plates originally attached to these packagings do not have sufficient space to accommodate the larger size retest markings currently required.

In § 173.60, a new paragraph (b)(14) is added, consistent with the UN Recommendations, to allow large explosive articles normally intended for military use to be transported unpackaged under specified conditions. This provision is currently found in § 173.62, Packing Instruction (PI) 130; however, the provision only applies to those explosives assigned to PI 130. Inclusion of this new paragraph will allow any large explosive article normally intended for military use to be transported unpackaged under the specified conditions.

In § 173.61, paragraph (a) is revised to clarify that explosives may be packed with non-hazardous materials that will not adversely affect the explosive. RSPA believes that relaxing this provision will avoid the need for exemptions.

In § 173.62, paragraph (d) is removed, as stated earlier in the preamble discussion of § 173.7.

RSPA proposed to remove the wording “and combustible liquids” in the first sentence of § 173.150(b) as unnecessary because combustible liquids are already generally excepted from the provisions of paragraph (f)(2) of this section. We believed that referring to combustible liquids was unnecessary because there is no requirement for labeling or specification packaging. Several commenters pointed out that by adopting this revision, RSPA inadvertently would be removing exceptions for limited quantities of combustible liquids that are also hazardous substances, hazardous wastes or marine pollutants. RSPA agrees; therefore, this proposal is not adopted. In § 173.150, paragraph (f)(3)(iv) is revised to clarify that placards are not required for a combustible liquid that is a hazardous substance, hazardous waste or marine pollutant in a non-bulk packaging.

In the NPRM, we proposed to revise paragraph (f)(3)(viii) by changing the reference for § 177.834 to § 177.834(j). This revision would have clarified that combustible liquids are not subject to the other provisions of § 177.834, such as those pertaining to attendance. The proposal resulted from a petition for rulemaking (P-1376) from the Petroleum Marketers Association of America (PMAA).

Three commenters addressed this proposal, one in support and two in opposition. PMAA reiterated its support for the change, noting that it would result in significant savings to the heating oil industry and expressing confidence that there would be no compromise in safety. The American Trucking Associations (ATA) and the Hazardous Materials Advisory Council (HMAC) oppose the proposed change. ATA believes that total elimination of attendance requirements for loading and unloading combustible liquids would diminish overall hazardous materials transportation safety. ATA recommends that we consider a limited exception for the delivery of home heating fuels similar to the exception provided for deliveries of liquefied petroleum gas and anhydrous ammonia in a final rule issued under HM-225A (RSPA-97-2718; 64 FR 28030). HMAC is concerned that, under the provisions of the NPRM, deliveries of furnace oil to homes and businesses and diesel fuel to gas stations would not require attendance to the detriment of transportation safety. HMAC also notes that the proposal could provide an inducement to shippers to take advantage of the reclassification option for materials with flash points at or above 100 °F, thereby expanding the number and volume of materials that would require neither human nor instrument monitoring. Like ATA, HMAC recommends that we consider a limited exception to the attendance requirement for deliveries of home heating oil. In a clarification of its comments, PMAA said that it would support a narrowing of the NPRM proposal, so that the exception from attendance requirements would apply only to deliveries of home heating oil in conformance with its petition for rulemaking.

We agree with commenters that combustible liquids should not be excepted completely from attendance requirements during loading and unloading operations because such an exception could adversely affect safety. At the same time, however, we believe that the relatively low risk presented by combustible liquids in transportation argues for a more flexible attendance regulation than that currently required by § 177.834(i). Accordingly, in this final rule we are revising § 173.150(f)(3)(viii) to replace the reference to § 177.834 with § 177.834(j) and § 177.837(d). We are adding a new paragraph (d) to § 177.837 to authorize operators of cargo tank motor vehicles unloading combustible liquids to monitor the unloading operation from a distance of up to 150 feet from the cargo tank and 25 feet from the delivery hose. The operator must observe the cargo tank and the receiving tank at least once every five minutes during unloading operations that take more than five minutes to complete. This is consistent with commenters' recommendations that the HMR include an attendance exception similar to that currently provided for cargo tank motor vehicles unloading liquefied petroleum gas and anhydrous ammonia in metered delivery service.

Paragraph (c) is being revised for consistency with the changes being adopted in §§ 171.11 and 171.12 to except shippers of Division 2.2 air bag modules and inflators or seat-belt pretensioners from entering the EX (applicable explosives approval) number on shipping papers.

In the NPRM, RSPA proposed to revise the introductory text in paragraph (e) to clarify that all airbag modules and inflators and seat belt pretensioners, including those in Division 2.2 that are transported under UN3353, must be packaged in UN outer packagings meeting the Packing Group III performance level. HMAC and another commenter expressed their objection to the proposal to require Packing Group III level packagings for devices under UN3353, stating the change would substantially increase cost to industry. Additionally, the latter commenter stated that RSPA does not currently require UN performance-oriented outer packagings for these devices. Upon further consideration, RSPA believes the use of outer UN packagings meeting the Packing Group III performance level should not be required at this time for the Division 2.2 devices. The UN Committee of Experts on the Transport of Dangerous Goods is considering a proposal to classify air bag inflators, air bag modules and seat-belt pretensioners into class 1 or 9. Therefore, RSPA is withholding further action pending the outcome of the UN proposal. We are revising the introductory text in paragraph (e) to clarify that the Class 9 devices must be in outer UN packagings meeting the Packing Group III performance level, as proposed.

We are adding a new paragraph (d)(3) to authorize an air bag module or a seat belt pretensioner that has been removed from a motor vehicle that was manufactured as required for use in the United States to be offered for transportation in commerce without marking the EX number or product code on the shipping paper, as required by current paragraph (c). Instead, the word “Recycled” is entered immediately after the basic description prescribed in § 172.202. This change will facilitate transportation of these devices for recycling and eliminate the need for exemption DOT-E 12189 granted to the Automotive Recyclers Association and several other grantees.

In paragraph (c)(1), a reference to obsolete § 178.253-4 is removed and replaced with the specific portable tank venting requirements that were contained in that section.

Paragraph (g)(1)(iii)(C) is revised to clarify the pressure relief device requirements for bulk packagings transported by rail. The previous regulatory text may have been misunderstood as requiring the use of a combination pressure relief device, such as a reclosing pressure relief device (a safety valve) incorporating a rupture disc on the upstream side. The paragraph is revised to clarify the requirement for a nonreclosing pressure relief device that incorporates a rupture disc conforming to the requirements of § 179.15.

Paragraph (h)(2) is revised to clarify that shipping papers are required for a Class 2 material that has been reclassed as a consumer commodity if it also meets the definition for “marine pollutant.” This change provides consistency with corresponding HMR limited quantity provisions.

Paragraph (a)(4) is revised to except from the HMR refrigerating machines, including dehumidifiers, air conditioners and their components, containing up to 12 kg (25 pounds) or less of a non-flammable, non-toxic gas; 12 L (3 gallons) or less of ammonia solution (UN2672); 12 kg (25 pounds) of flammable non-toxic gas, except for air transportation; and 20 kg (44 pounds) or less of a Group A1 refrigerant specified in ANSI/ASHRAE Standard 15, except for air and vessel transportation. In addition, for air transportation consistent with Special Provision A103 of the ICAO Technical Instructions, an exception is provided for refrigerating machines containing 100 g (4 ounces) or less of a flammable, non-toxic liquefied gas. This paragraph is also revised for clarity and to reference both International System of Units (SI) and customary units.

The section heading is revised by removing the phrase “of placarded cars.” This change clarifies that the prescribed shipping paper requirements apply to any person who accepts hazardous materials for transportation by rail.

As set forth in § 174.50, the Federal Railroad Administration (FRA) has authority to approve for movement a tank car not conforming to the HMR. Since the adoption of the provision, FRA has issued approximately 400 movement approvals for tank cars that no longer conform to the regulations, for reasons such as leaking fittings, accident damage and exceeding the gross rail load. RSPA is expanding FRA's approval authority from tank cars to all rail cars. This change allows FRA to grant approval for the movement of covered hopper cars, gondola cars, and other types of railroad equipment when they no longer conform to Federal law, but may safely be moved to a repair location. This change also eliminates the need to obtain an exemption for such movements.

Paragraph (a)(2)(ii) is revised to authorize lettering of at least 4 mm (.16 inch) in height, based on RSPA's initiative. Currently, the height requirement is 6 mm (0.2 inch) minimum for some of the information required on the notification to air passengers of hazardous materials restrictions. One commenter stated that with today's attention on enforcement and monitoring of regulations, RSPA should not be requiring smaller lettering on signs. RSPA believes that the smaller lettering does not significantly impact readability and encourages the use of space on signs for other information such as conveying the message by using graphics. This revision is, therefore, adopted as proposed.

In the NPRM, we proposed to broaden an exception in paragraph (d)(1) for inspecting packages of consumer commodities packaged in a freight container to include consumer commodities that are palletized or overpacked. Because of certain safety concerns, we believe this matter needs further review. We intend to review the exception for inspection of consumer commodities in a freight container and do not believe that this relaxation of air transportation requirements is appropriate at this time. Therefore, this proposal is not adopted.

In paragraph (i)(3), we are adding the new exception from attendance requirements for combustible liquids by referencing § 177.837(d), as stated in the preamble discussion to § 173.150.

We are adding a new paragraph (d) to authorize an exception from the attendance requirements in § 177.834(i) for operators of cargo tanks in combustible liquid service. This exception is consistent with commenters' recommendation that we provide an exception for combustible liquids similar to the exception currently provided for unloading operations involving liquefied petroleum gas and anhydrous ammonia in metered delivery service.

Paragraph (c) is revised to clarify that the prohibition against loading or storing cyanides or cyanide mixtures with acids applies only if hydrogen cyanide is generated when the materials come into contact with each other.

RSPA is amending the introductory text to paragraph (a) to clarify that the specification markings on a UN standard packaging must be marked on a non-removable component of a packaging. One commenter suggested that, if this proposal is adopted, regulators and field enforcement agents may believe that placing a specification marking on a removable component of a packaging is prohibited. RSPA does not agree. Section 178.503(b) permits duplicate markings on a removable component of a packaging.

In paragraph (a), a reference to obsolete §§ 178.346-13(a), 178.347-13(a), and 178.348-13(a) is removed.

RSPA is revising paragraph (f)(5) to allow a slight discharge from a closure of any type of packaging if it ceases immediately after impact and there is no further leakage. Previously, this allowance applied only to drums, jerricans or bags. This change aligns the criteria for passing the drop test with international regulations.

RSPA is revising the last sentence in paragraph (d)(1) to correctly reference the maximum filling limits in § 173.24a (d).

RSPA is revising § 178.703(a)(1)(ii) to correctly reference all of paragraph (a) of § 178.702, and not merely paragraphs (a)(1) and (2), for the code number used to designate an IBC design type.

Paragraph (c)(4)(iii) is added to authorize dynamic compression testing for IBCs in the same manner as is currently authorized for non-bulk packagings. RSPA believes that the dynamic compression test is an equivalent test method and that allowing more flexibility in the stacking test requirements will provide a cost savings to the regulated industry.

RSPA is removing the water capacity entry in the table that sets forth the stamped markings for DOT-105A100W tank cars. RSPA believes this requirement is redundant. Section 179.22 requires a tank car to be marked in accordance with Appendix C of the Association of American Railroads (AAR) Tank Car Manual. Section C3.03 of the AAR Manual already requires marking the water capacity, in gallons and liters, on the side of the tank car. The removal of this entry has no effect on safety.

RSPA is revising paragraph (a)(2) to allow a cargo tank owner to retain the vehicle certification report and related papers at a company's principal place of business or at the location where the vehicle is housed or maintained, without obtaining prior approval from the Federal Motor Carrier Safety Administration. This change offers motor carriers greater flexibility in the location where these documents are retained.

This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. This rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034).

The costs and benefits associated with this rule are considered to be so minimal as to not warrant preparation of a regulatory impact analysis or regulatory evaluation.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule does preempt State, local, and Indian tribe requirements but does not adopt any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

The Federal hazardous materials transportation law, 49 U.S.C. 5101-5127, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on certain covered subjects. Covered subjects are:

(i) The designation, description, and classification of hazardous materials;

(ii) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;

(iii) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents;

(iv) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; or

(v) The design, manufacture, fabrication, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.

This final rule addresses covered subject items (i), (ii), (iii), and (v) above and preempts State, local, and Indian tribe requirements not meeting the “substantively the same” standard. This final rule is necessary to update, clarify and provide relief from regulatory requirements.

Federal hazardous materials transportation law provides at section 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the Federal Register the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. RSPA has determined that the effective date of Federal preemption for these requirements will be 90 days from the date of publication in the Federal Register .

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not significantly or uniquely affect the communities of the Indian tribal governments and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13084 do not apply.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant impact on a substantial number of small entities. This final rule would amend miscellaneous provisions in the HMR, generally to clarify those provisions and to relax requirements that are overly burdensome. The changes in this rule are generally intended to provide relief to shippers, carriers, and packaging manufacturers, some of whom are small entities ( e.g. , governmental jurisdictions and not-for-profit organizations). The costs and benefits associated with this rule are considered to be so minimal as to not warrant preparation of a regulatory impact analysis or regulatory evaluation. Therefore, I certify that this rule will not have a significant economic impact on a substantial number of small entities.

Under the Paperwork Reduction Act of 1995, no person is required to respond to a collection of information unless it displays a valid Office of Management and Budget (OMB) control number. This final rule does not propose any new information collection burdens. The information collection associated with the proposal to provide for nonconforming railcars under § 174.50 is currently being reported under the information collection for exemption applications under § 107.105. Information collection requirements contained in § 174.50 have been approved by the OMB under control number 2137-0559.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.

NMFS published a document in the Federal Register on May 24, 2000 (65 FR 33486), announcing final specifications and preliminary adjustments to the 2000 summer flounder, scup and black sea bass commercial quotas. Additional adjustment is necessary through this notification due to the receipt of late 1999 landings data. The adjustment in this notification may not be final. Additional data including late landings reported from either federally permitted dealers or state statistical agencies reporting landings by non-federally permitted dealers could be received from the states that would further alter the quotas.

The 1999 quota, preliminary 1999 landings, and the resulting 1999 overages for all states for summer flounder are given in table 1. The following states recorded landings of summer flounder different from those reported in the May 24, 2000, Federal Register: MA—+219 lb (99 kg), CT—+13,172 lb (5,975 kg), NY—+10,616 lb (4,815 kg), NJ—+19,780 lb (8,972 kg), DE—-59 lb (27 kg), MD—+35,492 lb (16,099 kg), and VA—+65,279 lb (29,610 kg).

The resulting adjusted 2000 commercial quota for each state is given in Table 2, taking into account both the 1999 quota overages published in the May 24, 2000, Federal Register and the revised 1999 landings noted here.

The 1999 quotas (by period), preliminary 1999 landings (by period), and resulting overages for scup for all quota periods are given in Table 3. Changes in 1999 landings from those reported in the May 24, 2000, Federal Register are as follows: Winter I—-167 lb (76 kg), Summer—+47,750 lb (21,659 kg), Winter II—+36,627 lb (16,614 kg). Note that the 1999 overage and 2000 quota for the scup Winter I period was incorrectly calculated in the May 24, 2000, Federal Register . The 1999 overage should have been 106,074 lb (48,069 kg) rather than 106,174 lb (48,114 kg), and the resulting 2000 adjusted quota should have been 1,037,086 lb (470,422 kg) rather than 1,037,986 lb (470,369 kg). Therefore, the 2000 adjusted quota for scup for Winter I period should now be 1,037,086 lb (470,422 kg) plus 167 lb (76 kg) = 1,037,253 lb (470,490 kg).

The resulting adjusted 2000 commercial quota for each quota period is given in Table 4.