On September 5, 2000, OGE published for comment an interim rule amending 5 CFR 2635.807(a) to allow employees other than covered noncareer employees to accept from outside sources travel expenses incurred in connection with certain outside teaching, speaking, and writing activities considered “related to official duties” under the rule. See 65 FR 53650-53652. As more fully explained in the preamble to the interim rule, id. at 53650-53651, the purpose of the amendment was to bring § 2635.807(a) into conformity with the May 30, 1995, decision by the United States Court of Appeals for the District of Columbia Circuit in Sanjour v. Environmental Protection Agency , 56 F.3d 85 ( en banc ), as clarified in the April 14, 1998, decision on remand by the United States District Court for the District of Columbia, 7 F. Supp.2d 14 (D.D.C. 1998).

The Office of Government Ethics received three sets of comments in response to publication of the interim rule. One agency, noting that Examples 1 and 2 conclude that the speaking activities there addressed are “related to her duties” or “related to duties,” suggested we clarify that the speaking activities are related to official duties. We have followed this suggestion. Including the word “official” provides clarity and is more consistent with the language defining teaching, speaking or writing as related “to the employee's official duties” (emphasis added) in the circumstances set forth in paragraphs (A) through (E) of § 2635.807(a)(2)(i). The change also conforms to the language used at the conclusion of Example 3.

The same agency also recommended that we delete the word “career” in the final sentence of Example 1, which currently provides, “travel expenses incurred in connection with the speaking engagement * * * are not prohibited compensation for a career GS-15 employee.” We have also adopted this recommendation. Under 5 CFR 2636.303(a), a GS-15 employee is not a “covered noncareer employee” because his/her rate of basic pay is not, by definition, “equal to or greater than 120 percent of the minimum rate of basic pay payable for GS-15 of the General Schedule.” The emphasis on the employee's “career” status is thus unnecessary and could have the unfortunate effect of misleading some readers into thinking that the travel expense reimbursements would be prohibited compensation for a noncareer employee paid at or below the GS-15 level.

Two employees commenting together applauded the relaxation of the travel expenses ban as an opportunity to “expand the dissemination of federal program information” and, further, suggested that we expand the definition of “teaching, speaking, or writing relate[d] * * * to duties” to include less formal activities so that travel expenses may be accepted for travel to any “function at which a Federal presence is desired.” These commenters misunderstand the purpose of the amendment. The amendment is intended to allow employees, other than covered noncareer employees, who are involved in teaching, speaking and writing activities in their private capacities to accept travel reimbursements incurred in connection with those activities. The intent is not to facilitate official travel. In the absence of specific statutory authority such as 31 U.S.C. 1353, 5 U.S.C. 4111 or 7342, or agency gift acceptance statutes, augmentation of agency appropriations through acceptance of non-Federal contributions for agency travel is prohibited. Moreover, employee acceptance, in a private capacity , of non-Federal contributions of travel expenses incurred in connection with official speech could raise concerns under 18 U.S.C. 209. The first sentence of the note following paragraph (a)(2)(iii)(D) is intended to alert employees to the possible implications of section 209 where travel expenses are incurred in connection with teaching, speaking, or writing undertaken as an employee, i.e. , officially.

An additional suggestion by these employees—“that sponsoring/inviting organizations be allowed to contribute honorariums, which would otherwise be payable to an individual, to legitimate volunteer/charitable organizations, without reference/designation to the Federal employee”—similarly misconstrues the reach of § 2635.807. The compensation bar applies only to executive branch employees. Nothing in the rule prohibits outside organizations from any form of giving on their own to charitable or for-profit organizations.

One agency recommended that we add to § 2635.807 a “definition of ‘travel expenses’ in order to avoid any confusion about what this phrase is deemed to cover (transportation, lodging, incidentals, meals, etc.).” We have not followed this suggestion. For purposes of the compensation prohibition, existing § 2635.807(a)(2)(iii) makes clear that the term “compensation” is comprehensive of any “consideration, remuneration or income * * * given for or in connection with the employee's teaching, speaking or writing activities” and explicitly includes “transportation, lodgings and meals.” The exception at paragraph (a)(2)(iii)(D) is equally clear, excluding from the definition of “compensation” “travel expenses, consisting of transportation, lodgings or meals, incurred in connection with the teaching, speaking or writing activity” by employees other than covered noncareer employees.

That agency also suggested that, in Example 1, we say that “the speaking engagement” rather than the “speech” is related to duties under § 2635.807(a)(2)(i)(C) because the nexus to the employee's work is not the content of the speech but, rather, the fact that the employee is involved in drafting a regulation that will affect the organization that extended the speaking invitation. We have changed the wording to “speaking activity,” a phrase used elsewhere in the regulation.

The same agency asked that we consider adding a note addressing the responsibility of employees who file financial disclosure forms to report on their forms any travel expenses they accept under the amended rule. We have added to the note following paragraph (a)(2)(iii)(D) a second sentence that alerts filers of financial disclosure reports of their obligation to report travel and travel reimbursements.

Finally, OGE is updating the citation in Example 4 to the General Services Administration's regulation implementing 31 U.S.C. 1353.

In promulgating this final rule amendment, the Office of Government Ethics has adhered to the regulatory philosophy and the applicable principles of regulation set forth in section 1 of Executive Order 12866, Regulatory Review and Planning. The amendment has also been reviewed by the Office of Management and Budget under that Executive order.

As Director of the Office of Government Ethics, I have reviewed this final amendatory regulation in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.

As Director of the Office of Government Ethics, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this amendatory rule will not have a significant economic impact on a substantial number of small entities because it primarily affects Federal executive branch employees.

The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because this amendment does not contain information collection requirements that require the approval of the Office of Management and Budget.

The Office of Government Ethics has determined that this amendatory rulemaking is a nonmajor rule under the Congressional Review Act (5 U.S.C. chapter 8) and has provided a report thereon to the United States Senate, House of Representatives and General Accounting Office in accordance with that law.

For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), this rule will not significantly or uniquely affect small governments and will not result in increased expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation).

FSA published a document entitled, “Amendments to the Tobacco Marketing Quota Regulations” on October 23, 2001, (66 FR 53509). The paragraph number in revision number 5 was listed as § 723.206(c)(1), but should have been § 723.206(c)(1)(i). This correction adds that sub-paragraph number.

In rule FR Doc. 01-26543 published on October 23, 2001, (66 FR 53507) make the following correction: On page 53509, revise instruction 5 to read as follows:

“5. Revise § 723.206(c)(1)(i) to read as follows:”.

This rule is issued under Marketing Order No. 924, as amended (7 CFR part 924), regulating the handling of fresh prunes grown in designated counties in Washington and Umatilla County, Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Washington-Oregon fresh prune handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable fresh prunes beginning April 1, 2001, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

This rule continues to decrease the assessment rate established for the Committee for the 2001-2002 and subsequent fiscal periods from $1.50 to $1.00 per ton of fresh prunes handled.

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

For the 1999-2000 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on June 5, 2001, and unanimously recommended 2001-2002 expenditures of $7,804 and an assessment rate of $1.00 per ton of fresh prunes handled. In comparison, last year's budgeted expenditures were $7,803. The assessment rate of $1.00 is $0.50 lower than the rate that was in effect for 2000-2001. At the rate of $1.50 per ton and an estimated 2001-2002 fresh prune production of 4,850 tons, the projected reserve on March 31, 2002, would have exceeded the maximum level authorized by the order (approximately one fiscal period's operational expenses). The reserve on March 31, 2001, was $9,047.

The major expenditures recommended by the Committee for the 2001-2002 fiscal period include $3,461 for salaries, $1,000 for travel, $528 for rent and maintenance, and $475 for its annual audit. Budgeted expenses for these items in 2000-2001 were $3,360, $1,000, $528, and $475, respectively.

The assessment rate recommended by the Committee was derived for the purpose of reducing the operating reserve to a level consistent with the order. As mentioned earlier, fresh prune shipments for the year were estimated at 4,850 tons which should provide $4,850 in assessment income. This income, along with approximately $2,954 from the Committee's authorized reserve, will be adequate to cover the Committee's budgeted expenses of $7,804. With the decreased assessment rate, the reserve of $9,047 (as of March 31, 2001) will be reduced by as much as $2,945, thus leaving a balance of about $6,102 at the end of the 2001-2002 fiscal period. The order permits an operating reserve in an amount not to exceed approximately one fiscal period's operational expenses (§ 924.42).

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

Although this assessment rate is effective for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. The USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2001-2002 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by USDA.

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

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

There are approximately 60 producers of fresh prunes in the production area and approximately 12 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $750,000 and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000. The standard for determining small agricultural producers was increased from $500,000 to $750,000 in August 2001.

Based on production and producer prices reported by the National Agricultural Statistics Service, and the total number of Washington-Oregon fresh prune producers, the average annual producer revenue is approximately $18,000. In addition, based on Committee records, all of the Washington-Oregon fresh prune handlers ship under $5,000,000 worth of fresh prunes. In view of the foregoing, it can be concluded that the majority of Washington-Oregon fresh prune producers and handlers may be classified as small entities.

This rule continues to decrease the assessment rate established for the Committee and collected from handlers for the 2001-2002 and subsequent fiscal periods from $1.50 to $1.00 per ton of fresh prunes handled. The Committee unanimously recommended 2001-2002 expenditures of $7,804 and an assessment rate of $1.00 per ton of fresh prunes handled. The assessment rate of $1.00 is $0.50 lower than the rate that was in effect for 2000-2001. The quantity of assessable fresh prunes for the 2001-2002 fiscal period is estimated at 4,850 tons. Thus, the $1.00 rate should provide $4,850 in assessment income which along with funds from the Committee's authorized reserve will be adequate to cover budgeted expenses.

The major expenditures recommended by the Committee for the 2001-2002 fiscal period include $3,461 for salaries, $1,000 for travel, $528 for rent and maintenance, and $475 for its annual audit. Budgeted expenses for these items in 2000-2001 were $3,360, $1,000, $528, and $475, respectively.

With a rate of $1.50 per ton and an estimated 2001-2002 fresh prune production of 4,850 tons, the projected reserve on March 31, 2002, would exceed the maximum level authorized by the order (approximately one fiscal period's operational expenses). As of March 31, 2001, the Committee's reserve was $9,047. With assessment income of $4,850 from the current rate and expenditures of $7,804, the Committee may draw up to $2,945 from its reserve, thus leaving the reserve at approximately $6,102 on March 31, 2002.

The Committee considered alternative levels of assessment but determined that decreasing the assessment rate to $1.00 per ton would be adequate to reduce the reserve to a level lower than approximately one fiscal period's expenses. The Committee decided that an assessment rate of more than $1.00 per ton, but less than $1.50 per ton, would not decrease the reserve to an adequate level. Prior to arriving at this assessment rate, the Committee considered information from various sources, including the Committee's Finance and Executive Committees.

A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the producer price for the 2001-2002 marketing season could range between $160 and $275 per ton of fresh prunes handled. Therefore, the estimated assessment revenue for the 2001-2002 fiscal period as a percentage of total grower revenue should range between 0.36 and 0.63 percent.

This action continues to decrease the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the Committee's meeting was widely publicized throughout the Washington-Oregon fresh prune industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 5, 2001, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

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

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

An interim final rule concerning this action was published in the Federal Register on August 13, 2001. Copies of the rule were mailed to all Committee members. In addition, the rule was made available through the Internet by the Office of the Federal Register and USDA. A 60-day comment period was provided for interested persons to respond to the interim final rule. The comment period ended October 12, 2001, and no comments were received.

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

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

This rule is issued under Marketing Agreement No. 141 and Order No. 931 (7 CFR part 931), regulating the handling of fresh Bartlett pears grown in Oregon and Washington, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the order now in effect, fresh Bartlett pear handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable fresh Bartlett pears beginning July 1, 2001, and will continue until modified, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

This rule increases the assessment rate established for the Committee for the 2001-2002 and subsequent fiscal periods from $0.02 to $0.025 per standard box of fresh Bartlett pears handled.

The fresh Bartlett pear marketing order provides authority for the Committee, with USDA's approval, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The Committee consists of eight grower members and six handler members, each of whom is familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The budget and assessment rate were discussed at a public meeting and all directly affected persons had an opportunity to participate and provide input.

For the 2000-2001 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate of $0.02 per standard box that would continue in effect from fiscal period to fiscal period indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on May 31, 2001, and unanimously recommended 2001-2002 expenditures of $76,477 and an assessment rate of $0.025 per standard box of fresh Bartlett pears handled. In comparison, last year's budgeted expenditures were $81,060. The assessment rate of $0.025 is $0.005 higher than the rate in effect prior to this final rule. The Committee recommended an increase in the assessment rate because the $0.02 rate would not have generated enough income to keep its operating reserve at a reasonable level (25,666). Without the increase, the operating reserve would drop below $7,000 which is not adequate administer the program.

Major expenses recommended by the Committee for the 2001-2002 fiscal period include $39,040 for salaries, $5,675 for office rent, and $3,911 for health insurance. Budgeted expenses for these items in 2000-2001 were $44,468, $4,847, and $3,891, respectively.

The Committee developed the $0.025 assessment rate recommendation by considering the 2001-2002 budget and crop estimate, as well as the relatively small size of the current monetary reserve. Assessment income for the fiscal period should approximate $79,700 based on estimated fresh Bartlett pear shipments of 3,188,000 standard boxes, which is adequate to cover budgeted expenses. Funds in the reserve (approximately $18,443) will be kept within the maximum permitted by the order of approximately one fiscal period's operational expenses (§ 931.42).

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

Although this assessment rate will remain in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. The USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2001-2002 budget has been reviewed and approved by USDA. Those for subsequent fiscal periods will also be reviewed and, as appropriate, approved by USDA.

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

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

There are approximately 1,600 producers of fresh Bartlett pears in the production area and approximately 54 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000 and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.

Based on data provided by the National Agricultural Statistics Service for 1999, the most recent year complete data is available, and the current number of producers, the average annual producer revenue in Washington and Oregon could approximate $23,130 this year. Further, based on Committee records and recent F.O.B. prices reported by the Fruit and Vegetable Market News Service for fresh Bartlett pears, over 98 percent of the regulated handlers ship less that $5,000,000 worth of fresh Bartlett pears on an annual basis. In view of the foregoing, it can be concluded that the majority of fresh Bartlett pear producers and handlers may be classified as small entities.

This rule increases the assessment rate established for the Committee and collected from handlers for the 2001-2002 and subsequent fiscal periods from $0.02 to $0.025 per standard box of fresh Bartlett pears handled. The Committee met on May 31, 2001, and unanimously recommended 2001-2002 expenditures of $76,477 and an assessment rate of $0.025 per standard box of fresh Bartlett pears handled. In comparison, budgeted expenditures for last year totaled $81,060. The assessment rate of $0.025 is $0.005 greater than the rate in effect prior to this final rule, and was recommended by the Committee because the $0.02 rate would not have generated enough income for it to adequately administer the program. At the previous rate of assessment, the Committee's monetary reserve would have dropped below $7,000 and this is not adequate to administer the program.

Major expenses recommended by the Committee for the 2001-2002 fiscal period include $39,040 for salaries, $5,675 for office rent, and $3,911 for health insurance. Budgeted expenses for these items in 2000-2001 were $44,468, $4,847, and $3,891, respectively.

The Committee developed the $0.025 assessment rate recommendation by considering the 2001-2002 budget and crop estimate, as well as the relatively small size of its monetary reserve. Assessment income for the fiscal period should approximate $79,700 based on estimated fresh Bartlett pear shipments of 3,188,000 standard boxes, which is adequate to cover budgeted expenses. Funds in the reserve (approximately $18,443) will be kept within the maximum permitted by the order of approximately one fiscal period's operational expenses (§ 931.42).

The Committee considered alternative levels of assessment but, considering the current relatively low level of funding in the monetary reserve, determined that increasing the assessment rate to $0.025 per standard box to be appropriate. The Committee believes that an assessment rate of more than $0.025 per standard box would have generated income in excess of that needed to adequately administer the program, and if left at the $0.02 rate, or reduced, would have been inadequate to administer the program.

A review of historical information and preliminary information pertaining to the upcoming crop indicates that the producer price for the 2001-2002 marketing season could average about $11.61 per standard box of fresh Bartlett pears handled. Therefore, the Committee's estimated assessment revenue for the 2001-2002 fiscal period as a percentage of total producer revenue should be approximately 0.215 percent.

This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the order. In addition, the Committee's meeting was widely publicized throughout the fresh Bartlett pear industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 31, 2001, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Furthermore, interested persons were invited to submit information on the regulatory and informational impacts of this action on small businesses.

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

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

A proposed rule concerning this action was published in the Federal Register on September 21, 2001 (66 FR 48628). A copy of the proposed ruled was provided to the Committee office which in turn made copies available to producers and handlers. Furthermore, the Office of the Federal Register and the USDA made a copy available on the Internet. A 30-day comment period ending October 22, 2001, was provided for interested persons to respond to the proposal. No comments were received.

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

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

Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) Handlers are already receiving 2001-2002 fiscal period pears from producers; (2) the 2001-2002 fiscal period began on July 1, 2001, and the order requires that the rate of assessment for each fiscal period apply to all assessable Bartlett pears handled during such period; and (3) handlers are aware of this action which was unanimously recommended by the Committee at a public meeting. Furthermore, a 30-day comment period was provided for in the proposed rule and no comments were received.

The final regulations that are the subject of these corrections superseded 11 CFR 104.3(b)(4)(i) as of January 1, 2001, and applied to authorized committees of Federal candidates. In those final regulations, paragraphs (A) and (B) of 11 CFR 104.3(b)(4)(i) were inadvertently deleted. Paragraph (A) defines “purpose” of disbursement as it is reported and states examples of acceptable and unacceptable purpose descriptions to be reported by authorized committees. Paragraph (B) requires authorized committees, when itemizing certain disbursements for which reimbursements are required, to provide a brief explanation of the activity for which reimbursement is required. These provisions have been in Title 11 of the Code of Federal Regulations since 1980 and 1995, respectively, and were not affected by the recent statutory changes to the election cycle reporting requirements.

As published, the final rules inadvertently omit two paragraphs describing information to be reported by authorized committees of Federal candidates.

All committees must report the purpose of itemized disbursements (i.e., those disbursements aggregating in excess of $200). Omitted paragraph (A) contains examples of suitably specific purpose descriptions as well as examples of those descriptions that are unacceptably vague. This paragraph is consistent with the reporting of rules for unauthorized committees (committees other than candidate committees) in 11 CFR 104.3(b)(3).

Omitted paragraph (B) is used in administering the “personal use” rules in 11 CFR 113.1. Federal candidates are barred from using campaign funds for personal benefit. Paragraph (B) requires authorized committees of Federal candidates itemizing disbursements for which partial or total reimbursement is required under 11 CFR 113.1(g)(1)(iii)(C) or (D) to provide a brief explanation of the activity for which the reimbursement is made.

Section 801 of Title 5 of the United States Code requires Federal agencies to submit regulations to Congress. These regulations were submitted to the Speaker of the House of Representatives and the President of the Senate on November 26, 2001.

This correction will not have significant economic impact on a substantial number of small entities. The basis of this certification is that this correction only requires political committees to once again add information to the reports they are required to file. These regulations were in 11 CFR since 1980 and 1995, respectively, before being inadvertently omitted in 2000.

Section 640 of the Treasury and General Government Appropriations Act, 2000, Pub. L. No. 106-58, 106th Cong., 113 Stat. 430, 476-77 (1999), amended § 309(a)(4) of the FECA, 2 U.S.C. 437g(a)(4), to provide for a modified enforcement process for violations of reporting requirements. Under § 437g(a)(4)(C) of the FECA, the Commission may assess a civil money penalty for violations of the reporting requirements of 2 U.S.C. 434(a). This authority, however, was to sunset on December 31, 2001. Pub. L. No. 106-58, 106th Cong., § 640(c). Recently, § 642 of the Treasury and General Government Appropriations Act, 2002, amended the Treasury and General Government Appropriations Act, 2000, by extending the sunset date to include all reports that cover activity between January 1, 2000, to December 31, 2003.

The Commission published final rules on May 19, 2000, to implement the amendment contained in the Treasury and General Government Appropriations Act, 2000. Section 111.30 of the regulations reflects the sunset provision of Pub. L. No. 106-58, 106th Cong., § 640(c). Therefore, the Commission is issuing this final rule to amend section 111.30 to extend the application of the administrative fine regulations, 11 CFR part 111, subpart B, to include all violations relating to reports that cover the period between January 1, 2000, to December 31, 2003.

The Commission is promulgating this final rule without notice or opportunity for comment because it falls under the “good cause” exemption of the Administrative Procedures Act, 5 U.S.C. 553(b)(B). The exemption allows agencies to dispense with notice and comment if the procedures are “impracticable, unnecessary, or contrary to public interest.” Id. This final rule fulfills the “good cause” exemption requirement because a notice and comment period is impracticable in that it would prevent this final rule from taking effect before the administrative fine regulations sunset under the current 11 CFR 111.30. See Administrative Procedure Act: Legislative History, S. Doc. No. 248 200 (1946) (“'Impracticable' means a situation in which the due and required execution of the agency functions would be unavoidably prevented by its undertaking public rule-making proceedings”). In addition, this final rule merely extends the applicability of the administrative fine regulations and does not change the substantive regulations themselves. Those regulations were already subject to notice and comment when they were proposed in March, 2000, 65 FR 16534, and adopted in May, 2000, 65 FR 31787. Thus, it is appropriate and necessary for the Commission to publish this final rule without providing a notice and comment period. The Commission anticipates, however, that any substantive changes that may be made to the administrative fine rules at a later date will be subject to notice and comment.

The attached final rule will not have a significant economic impact on a substantial number of small entities. The basis for this certification is that this final rule merely extends the applicability of existing regulations for two more years. The existing regulations have already been certified as not having a significant economic impact on a substantial number of small entities. 65 FR 31793 (2000). Therefore, the extension of these existing regulations will not have a significant economic impact on a substantial number of small entities.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 707-100, -100B, -300, and -E3A (military airplanes); 727-100 and -200; 737-200, -200C, -300, -400, and -500; 747SP and 747SR; 747-100B, -200B, -200C, -200F, -300, -400, and -400D; 757-200 and -200PF; and 767-200 and -300 series airplanes was published in the Federal Register on June 27, 2001 (66 FR 34128). That action proposed to require inspection of the attachment of the shoulder restraint harness to the mounting bracket on certain observer and attendant seats to determine if a C-clip is used in the attachment, and corrective action, if necessary.

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

One commenter states that the proposed AD does not apply to its fleet.

Two commenters request that the FAA withdraw the proposed AD. One commenter states that, on its fleet of Model 757 series airplanes, it has not observed any in-service problems with the shoulder restraint harness detaching from the mounting bracket. Therefore, it does not accept that the proposed modification is necessary.

The FAA does not concur. Though the commenter has not observed any problems related to the identified unsafe condition, at least two other operators have. Therefore, we find that it is necessary to require the modification in this AD.

Another commenter requests that the FAA withdraw the proposed rule because Boeing needs to revise the referenced service bulletins by identifying the individual part numbers of affected seats, rather than identifying the airplanes by serial numbers. The commenter is concerned that the service bulletins and proposed AD identify the subject seats both as “attendant” and “observer” seats. The commenter notes that the term “observer seat” could be construed to include observer seats in the cockpit, which have a different restraint system. The commenter is also concerned that, because the service bulletins identify affected airplanes, not seat part numbers, operators that move seats from one airplane to another could inadvertently install an unmodified seat on an airplane on which all other subject seats have already been modified.

We do not concur that it is necessary to withdraw the proposed rule. The restraint system is attached to the airplane, not to the attendant and observer seats; therefore, identifying the seats by part number would not provide any benefit. Also, the fact that when a seat is moved from one airplane to another, the restraint system for that seat remains with the airplane, should alleviate the commenter's concerns about exchanging seats between airplanes. Furthermore, although the commenter states that airplanes in its fleet have a restraint system on the cockpit observer seats other than the one addressed by this AD, other operators do have airplanes equipped with cockpit observer seats that employ the restraint system identified in this AD. No change to the AD is necessary in this regard.

One of the commenters who requests withdrawal of the proposed rule asks us to extend the compliance time for the proposed AD if we do not concur to withdraw the proposed rule. The commenter suggests that we extend the compliance time from 18 to 24 months. The commenter's rationale is that it has not observed the unsafe condition on any of its airplane fleet (Model 757 series airplanes).

We concur with the request to extend the compliance time of this AD. In developing a new compliance time for this AD, we considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, and the average utilization of the affected fleet. In light of all of these factors, we find a 36-month compliance time for initiating the required actions to be warranted, in that it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety. We have revised paragraph (a) of this AD accordingly.

One commenter requests that the “Differences Between The Service Bulletins and This Proposed AD” section of the proposed rule be revised to state that only two instances of detachment of the shoulder restraint harness of the attendant or observer seat from the mounting bracket have been reported, though this design has been in use for more than 40 years.

We acknowledge the commenter's remarks on the number of occurrences of the unsafe condition and the duration of service of the design. However, the section referred to by the commenter is not restated in this final rule. Therefore, no change to the AD is necessary in this regard.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The table below estimates the cost impact of the inspection that is required by this AD. The average labor rate is $60 per work hour.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 767 series airplanes was published in the Federal Register on June 5, 2001 (66 FR 30112). That action proposed to require a one-time detailed visual inspection of certain wire bundles located in the aft section of the strut forward fairing panel of both engine struts to detect chafing damage, and repair or replacement of wiring, if necessary. That action also proposed to require replacement of wires repaired by splicing and damaged wires that require splicing; and replacement of the support brackets of the existing wire bundles with new brackets and clamps, which would terminate the existing requirements.

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

One commenter, a member airline of the Air Transport Association of America, states that it has already accomplished the proposed inspection of the wire bundles located in the aft section of the strut forward fairing panel of both engine struts per Boeing Standard Wiring Practices Manual D6-54446 (hereinafter called the wiring practices manual), Subjects 20-10-13 and 20-30-12, and no damage was detected. The service instructions in the wiring practices manual include the same instructions as those included in the supplemental NPRM and Boeing Service Bulletin 767-73A0049, Revision 2, dated April 27, 2000. The commenter states that it is concerned about its ability to accomplish the required wire bundle inspection within the proposed compliance time of 180 days. Such a compliance time would require that inspections be accomplished “on the line” or “during overnight visits,” which could result in scheduling problems. The FAA infers that the commenter considers that the final rule should allow credit for previous accomplishment of the inspection required by paragraph (a) per Revision 2 of the service bulletin or per certain sections of the wiring practices manual.

The FAA concurs that previous accomplishment of inspections, per Boeing Service Bulletin 767-73A0049, Revision 2, dated April 27, 2000, or per Boeing Standard Wiring Practices Manual D6-73A0049, Subjects 20-10-13 or 20-30-12, is adequate and provides an acceptable level of safety. However, in the original NPRM, paragraphs (a)(1), (a)(2), and (a)(3) specify corrective actions, not the inspection; and paragraph (a)(2) includes a reference to wiring practices manual, Subject 20-10-13, not Subject 20-30-12. The airplane manufacturer maintains that wiring practices manual, Subject 20-30-12, includes a more detailed inspection procedure than does Subject 20-10-13. In light of this information, in the final rule we have added a new Note 2 following paragraph (a) to give credit for the accomplishment of previous inspections per the referenced service bulletin or wiring practices manual. In addition, we have renumbered the succeeding notes in the final rule accordingly.

One commenter requests clarification of the corrective action in paragraph (a)(2) of the supplemental NPRM, which proposes replacement of all spliced wires with new wires. The commenter states that Boeing Service Bulletin 767-73A0049 specifies that spliced wires are allowed in the area of inspection and as a temporary repair. If so, what is the reason for not considering that a correctly done splice is acceptable until the next C-check? If splices between the brackets are not allowed, an airline's workload will be increased significantly. The commenter points out that the wiring practices manual has never included procedures that allow splices under a clamp or support fitting.

The FAA concurs with the commenter's request, and we acknowledge that Boeing Service Bulletin 767-73A0049 specifies that spliced wires are acceptable as a temporary repair. However, we point out that in the supplemental NPRM, paragraph (a)(1) proposes a temporary repair except as provided by paragraph (a)(2), which proposes replacement of all spliced wires concurrently with accomplishment of the terminating action specified by paragraph (b)(2). Although a temporary repair was specified for certain conditions, we agree that further clarification of the repair action is necessary. As a result, in the final rule we have revised paragraphs (a), (a)(1), and (a)(2) as follows. We moved the conditional action statement in paragraph (a)(1) regarding “if any chafing damage of any wire bundle is detected * * * ” to paragraph (a). Paragraph (a)(2) cites paragraph (b) instead of paragraph (b)(2), which clarifies that both the inspection in paragraph (b)(1) and the replacement action in paragraph (b)(2) are required.

One commenter suggests revising paragraph (d) of the supplemental NPRM. (That paragraph is cited as paragraph (e) in the final rule.) The commenter contends that those requirements should be limited to only those areas specified for Model 767 series airplanes. The part numbers specified in the Boeing service bulletin are installed in other locations on Model 767 series airplanes in addition to those areas specifically addressed by the proposed AD. The commenter also states that the manufacturer intended that the service bulletin address only the specific bracket locations identified in the service bulletin. Further, the manufacturer did not intend to prevent installation of the referenced part number from other locations on Model 767 series airplanes.

The FAA concurs with the commenter's request, and considers that the manufacturer's intention was to limit installation of the support brackets to only certain locations. We have revised paragraph (e) in the final rule to clarify that the spares limitation applies only to the support brackets “located in the aft section of the strut forward fairing panel of both engine struts,” as identified in Boeing Service Bulletin 767-73-0051, dated December 20, 2000.

One commenter requests approval to use DMS 2186A Type 2 tape (electrical insulation, self-adhering, or high-temperature) instead of TFE-2X Teflon wrap. The commenter states that some of the advantages of DMS 2186A Type 2 tape include: easy application due to elongation, which eases installation; a smooth wrap due to a self-adhering effect, unlike the Teflon tape; good resistance to burns, heat, and abrasion; and good dielectrical breakdown voltage.

The FAA partially concurs. We have determined that any of the Type 2 tapes listed in Subject 20-00-11 of the wiring practices manual are acceptable alternatives to the TFE-2X Teflon wrap specified in Boeing Service Bulletin 767-73A0049. However, the tapes listed in the wiring practices manual do not include DMS 2186A Type 2 tape. The FAA has determined that, if additional tape alternatives are necessary and they are not listed in the wiring practices manual, operators must submit a request for an alternative method of compliance, as provided by paragraph (f) of this AD. To clarify this, we have added a new paragraph (c) in the final rule to specify that any of the Type 2 tapes listed in Subject 20-00-11 of the wiring practices manual is an acceptable alternative to the TFE-2X Teflon wrap specified in the Boeing service bulletin. The succeeding paragraphs in the final rule are renumbered accordingly.

One commenter requests revising the compliance time for the replacement action in paragraph (a)(2) of the original NPRM. The commenter contends that the replacement action should occur “after the splice installation” rather than “after the effective date of this AD.”

The FAA does not concur with the commenter's request. However, in the supplemental NPRM, we considered that it was necessary to clarify the corrective actions specified in the original NPRM. As a result, we made a number of changes in the supplemental NPRM. We revised paragraph (a)(2) and deleted paragraph (a)(3), but made no change to paragraph (a) or (a)(1). We also point out that paragraph (a)(2) specifies replacement concurrently with the new terminating action specified by paragraph (b)(2). In developing that compliance time, we considered not only the degree of urgency associated with addressing the subject unsafe condition, but the manufacturer's recommendation as to an appropriate compliance time, availability of required parts, and the practical aspect of accomplishing the replacement action. In consideration of these factors, we find that 6,000 flight hours or 18 months “after the effective date of this AD” is appropriate. No change to the final rule is necessary in this regard.

To further clarify the corrective action in the final rule, we point out that the compliance time for the terminating action required by paragraph (b) is “within 6,000 flight hours or 18 months after the effective date of this AD, whichever occurs later,” which represents the C-check interval for the majority of the affected fleet. We consider that this compliance time will allow operators that had accomplished the temporary splice repair to replace those repairs with new wire at an interval that coincides with a C-check.

One commenter requests clarification of the term “splice” in the original NPRM. The commenter states that in certain paragraphs of Boeing Service Bulletin 767-73A0049 and in paragraph 2.A of the wiring practices manual, Subject 20-10-13, the term “splice” is used incorrectly. That term does not apply to insulation or shield repairs, and we consider that the intent of the service bulletin and the original NPRM is to specify removing those wires that have been cut and mechanically reconnected.

The FAA does not concur that the term “splice” was used incorrectly in the original NPRM. However, we agree that the term was used incorrectly in certain paragraphs of the service bulletin and the wiring practices manual. In addition, the airplane manufacturer has informed the FAA that the term “splice,” as used in paragraph 2.A.(6) of the wiring practices manual, should have been “damaged area.” No change to the final rule is necessary in this regard.

The applicability of the supplemental NPRM references Boeing Service Bulletin 767-73-0051, dated December 20, 2000, as the appropriate source of service information for determining the affected Model 767 series airplanes. The service bulletin references Service Bulletin Index Document D624T001, Part 3, for airplane variable number, line number, and serial number data. Because some operators may not readily have access to this secondary source of service information, the FAA has determined that the applicability of the AD should specify the affected airplane line numbers (i.e., line numbers 1 through 821, equipped with Pratt & Whitney PW4000 series engines), which were identified in the Summary of Boeing Service Bulletin 767-73-0051. The applicability of the final rule is changed accordingly.

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

There are approximately 185 Model 767 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 79 airplanes of U.S. registry will be affected by this AD.

It will take approximately 2 work hours per airplane to accomplish the inspection action, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the inspection required by this AD on U.S. operators is estimated to be $9,480, or $120 per airplane.

It will take approximately 3 work hours per airplane to accomplish the replacement action, and that the average labor rate is $60 per work hour. Required parts would cost approximately $1,570 per airplane. Based on these figures, the cost impact of the replacement required by this AD on U.S. operators is estimated to be $138,250, or $1,750 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 99-21-29, amendment 39-11375 (64 FR 56158, October 18, 1999), which is applicable to certain Airbus Model A320 series airplanes, was published in the Federal Register on March 29, 2001 (66 FR 17125). The action proposed to require a new modification of the autopilot mode engagement/disengagement lever of the rudder artificial feel unit. The action also proposed to revise the applicability of the existing AD to include Airbus Model A319 and A321 series airplanes, as well as all Model A320 series airplanes.

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

Two commenters request that the FAA revise paragraph (a) of the proposed AD to refer to Airbus Service Bulletin A320-27-1130, Revision 01, dated November 23, 2000, instead of the original issue of that service bulletin, which the proposed AD specifies as the appropriate source of service information for the proposed modification. One of the commenters explains that Airbus issued Revision 01 of the service bulletin in response to the commenter's suggestions for improvements and corrections that could be made to the work instructions, as well as to revise the effectivity. The other commenter also asks that, in addition to referring to Revision 01, the proposed AD be revised to refer to “any subsequently approved revision(s)” of the service bulletin as appropriate sources of service information.

The FAA partially concurs with the commenters' requests. Since the issuance of the proposed rule, Airbus has issued Revision 01 of the service bulletin, as well as Revision 02 of the service bulletin, dated September 6, 2001. We have determined that accomplishment of the modification required by this AD according to either the original issue, Revision 01, or Revision 02 of the service bulletin is acceptable. Paragraph (a) has been revised to refer to the most recent issue, Revision 02 of the service bulletin, and Note 2 has been added to this AD (and subsequent notes reordered) to state that modification prior to the effective date of this AD according to the original issue or Revision 01 of the service bulletin is acceptable for compliance with paragraph (a) of this AD.

With regard to the second commenter's request to refer to “any subsequently approved revision(s)” of the service bulletin, we do not concur. An AD may only refer to service documents that are submitted and approved by the Office of the Federal Register (OFR) for “incorporation by reference.” In order for operators to use later revisions of the referenced document (issued after the publication of the AD), either the AD must be revised to refer to the specific later revisions, or operators must request approval for the use of them as an alternative method of compliance with this AD under the provisions of paragraph (c) of this AD. No further change to the AD is necessary in this regard.

One commenter requests that the FAA revise the compliance time for the proposed modification from 18 months to 24 months after the effective date of the AD. The commenter states that this change would allow operators to accomplish the modification during a regularly scheduled maintenance visit such as a “C” check, which would reduce the impact of the proposed modification on line operations. The commenter also states that an extension of the compliance time would make the compliance time for the proposed AD coincide with those of other ADs and would compensate for increased lead-time necessary for delivery of the kit needed to accomplish the proposed modification.

The FAA does not concur. In developing the compliance time for the modification in this AD, the FAA considered not only the degree of urgency associated with addressing the subject unsafe condition, but also the time necessary to accomplish the modification (estimated at 9 work hours per airplane), and the practical aspect of installing the required modification within an interval of time that parallels normal scheduled maintenance for the majority of affected operators. The FAA finds that 18 months represents an appropriate interval of time allowable wherein the modification can be accomplished during scheduled maintenance for the majority of affected operators, and an acceptable level of safety can be maintained. With regard to the lead-time needed for obtaining the necessary kits, we find that operators will have ample time to order and receive the kits before the compliance threshold. No change to the AD is necessary in this regard.

One commenter requests that the FAA revise paragraph (b) of the proposed AD to differentiate between assembly and subassembly part numbers. The commenter notes that paragraph (b) of the proposed AD contains both artificial feel unit assembly and artificial feel unit subassembly part numbers according to the Airbus Illustrated Parts Catalog.

The FAA does not concur. All parts listed in paragraph (b) are prohibited from being installed on an airplane after the effective date of this AD. In addition, the referenced service bulletin clearly differentiates between artificial feel units with a solenoid and those without a solenoid. No change to the AD is necessary in this regard.

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

There are approximately 291 Model A319, A320, and A321 series airplanes of U.S. registry that will be affected by this AD.

The new modification that is required by this AD will take approximately 9 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts will be provided by the manufacturer at no cost. Based on these figures, the cost impact of the requirements of this AD on U.S. operators is estimated to be $157,140, or $540 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model MD-90-30 series airplanes was published in the Federal Register on August 28, 2001 (66 FR 45190). That action proposed to require an inspection of the wiring in the left-hand tunnel area of the forward cargo compartment for evidence of chafing, and repair, if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 12 Model MD-90-30 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 10 airplanes of U.S. registry will be affected by this AD, that it will take approximately 3 work hours per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $1,800, or $180 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Bombardier Model DHC-8-100, -200, and -300 series airplanes was published in the Federal Register on September 4, 2001 (66 FR 46239). That action proposed to require installation of a backup pressure regulating valve on the oil pump of the propeller control unit (PCU) on both engines.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 191 Bombardier Model DHC-8-100, -200, and -300 series airplanes of U.S. registry will be affected by this AD, that it will take approximately 2 work hours per airplane to accomplish the required installation, and that the average labor rate is $60 per work hour. Required parts will cost approximately $1,019 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $217,549, or $1,139 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

An opportunity for comment on the information collection requirements of the repair station final rule was not provided during the notice of proposed rulemaking stage. Interested persons are invited to submit written data, views, or arguments regarding the information collection requirements as they may desire. Substantive comments should be accompanied by cost estimates. Comments must identify the regulatory docket or notice number and be submitted in duplicate to the DOT Rules Docket address specified above.

All comments received, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking, will be filed in the docket. The docket is available for public inspection before and after the comment closing date.

All comments received on or before the closing date will be considered by the FAA before the effective date of the final rule. Comments filed late will be considered as far as possible without incurring expense or delay.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this document must include a pre-addressed, stamped postcard with those comments on which the following statement is made: “Comments to Docket No. FAA-1999-5836.” The postcard will date stamped and mailed to the commenter.

On July 30, 2001, the Federal Aviation Administration (FAA) issued Repair Stations; Final Rule with request for comments and direct final rule with request for comments (66 FR 41088, August 6, 2001). Comments to that document were to be received on or before October 5, 2001.

Several organizations have requested an extension of the comment period. By letter dated September 28, 2001, the Aeronautical Repair Station Association, Aircraft Electronics Association, Helicopter Association International, National Air Transportation Association, and National Air Carrier Association jointly requested that FAA extend the comment period until December 31, 2001. The petitioners cited the national security events that occurred on September 11, 2001, to support their requests for an extension. The petitioners indicated that the recent events devastated its member companies. In some cases, the personnel needed to collect, compile, evaluate, and respond to the request for cost estimates have been laid off. In other cases these personnel have been assigned to other responsibilities, making it difficult to respond to the request for comments by the October 5, 2001, deadline. Goodrich Aerostructures Group, also requested that FAA extend the comment period.

The FAA acknowledges that the tragic events of September 11 have required the nation's attention and concurs with the petitioner's request to extend the comment period on the information collection requirements of the final rule. Therefore, the FAA believes as additional 60 days is sufficient to allow interest parties to provide comment.

In accordance with § 11.47 of Title 14, Code of Federal Regulations, the FAA has reviewed the requests for extension of the comment period to the repair stations final rule. These petitioners have shown a substantive interest in the final rule and good cause for the extension. The FAA also has determined that an extension of the comment period is consistent with the public interest, and that good cause exists for taking this action.

Accordingly, the comment period for Repair Stations; Final Rule request for comments on the paperwork burden is extended until January 29, 2002.

Section 4022(b) of the Employee Retirement Income Security Act of 1974 provides for certain limitations on benefits guaranteed by the PBGC in terminating single-employer pension plans covered under Title IV of ERISA. One of the limitations, set forth in section 4022(b)(3)(B), is a dollar ceiling on the amount of the monthly benefit that may be paid to a plan participant (in the form of a life annuity beginning at age 65) by the PBGC. The ceiling is equal to “$750 multiplied by a fraction, the numerator of which is the contribution and benefit base (determined under section 230 of the Social Security Act) in effect at the time the plan terminates and the denominator of which is such contribution and benefit base in effect in calendar year 1974 [$13,200].” This formula is also set forth in § 4022.22(b) of the PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR Part 4022). Appendix D to Part 4022 lists, for each year beginning with 1974, the maximum guaranteeable benefit payable by the PBGC to participants in single-employer plans that have terminated in that year.

Section 230(d) of the Social Security Act (42 U.S.C. 430(d)) provides special rules for determining the contribution and benefit base for purposes of ERISA section 4022(b)(3)(B). Each year the Social Security Administration determines, and notifies the PBGC of, the contribution and benefit base to be used by the PBGC under these provisions, and the PBGC publishes an amendment to Appendix D to Part 4022 to add the guarantee limit for the coming year.

The PBGC has been notified by the Social Security Administration that, under section 230 of the Social Security Act, $63,000 is the contribution and benefit base that is to be used to calculate the PBGC maximum guaranteeable benefit for 2001. Accordingly, the formula under section 4022(b)(3)(B) of ERISA and 29 CFR 4022.22(b) is: $750 multiplied by $63,000/$13,200. Thus, the maximum monthly benefit guaranteeable by the PBGC in 2002 is $3,579.55 per month in the form of a life annuity beginning at age 65. This amendment updates Appendix D to Part 4022 to add this maximum guaranteeable amount for plans that terminate in 2002. (If a benefit is payable in a different form or begins at a different age, the maximum guaranteeable amount is the actuarial equivalent of $3,579.55 per month.)

Section 4011 of ERISA requires plan administrators of certain underfunded plans to provide notice to plan participants and beneficiaries of the plan's funding status and the limits of the PBGC's guarantee. The PBGC's regulation on Disclosure to Participants (29 CFR part 4011) implements the statutory notice requirement. This rule amends Appendix B to the regulation on Disclosure to Participants by adding information on 2002 maximum guaranteed benefit amounts. Plan administrators may, subject to the requirements of that regulation, include this information in participant notices.

General notice of proposed rulemaking is unnecessary. The maximum guaranteeable benefit is determined according to the formula in section 4022(b)(3)(B) of ERISA, and these amendments make no change in its method of calculation but simply list 2002 maximum guaranteeable benefit amounts for the information of the public.

The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this regulation, the Regulatory Flexibility Act of 1980 does not apply (5 U.S.C. 601(2)).

The PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) sets forth (in subpart B) the methods for valuing plan benefits of terminating single-employer plans covered under Title IV of the Employee Retirement Income Security Act of 1974. Under ERISA section 4041(c), guaranteed benefits and benefit liabilities under a plan that is undergoing a distress termination must be valued in accordance with part 4044, subpart B. In addition, when the PBGC terminates an underfunded plan involuntarily pursuant to ERISA Section 4042(a), it uses the subpart B valuation rules to determine the amount of the plan's underfunding.

Under § 4044.51(b), early retirement benefits are valued based on the annuity starting date, if a retirement date has been selected, or the expected retirement age, if the annuity starting date is not known on the valuation date. Sections 4044.55 through 4044.57 set forth rules for determining the expected retirement ages for plan participants entitled to early retirement benefits. Appendix D of part 4044 contains tables to be used in determining the expected early retirement ages.

Table I in appendix D (Selection of Retirement Rate Category) is used to determine whether a participant has a low, medium, or high probability of retiring early. The determination is based on the year a participant would reach “unreduced retirement age” ( i.e., the earlier of the normal retirement age or the age at which an unreduced benefit is first payable) and the participant's monthly benefit at unreduced retirement age. The table applies only to plans with valuation dates in the current year and is updated annually by the PBGC to reflect changes in the cost of living, etc.

Tables II-A, II-B, and II-C (Expected Retirement Ages for Individuals in the Low, Medium, and High Categories respectively) are used to determine the expected retirement age after the probability of early retirement has been determined using Table I. These tables establish, by probability category, the expected retirement age based on both the earliest age a participant could retire under the plan and the unreduced retirement age. This expected retirement age is used to compute the value of the early retirement benefit and, thus, the total value of benefits under the plan.

This document amends appendix D to replace Table I-01 with Table I-02 in order to provide an updated correlation, appropriate for calendar year 2002, between the amount of a participant's benefit and the probability that the participant will elect early retirement. Table I-02 will be used to value benefits in plans with valuation dates during calendar year 2002.

The PBGC has determined that notice of and public comment on this rule are impracticable and contrary to the public interest. Plan administrators need to be able to estimate accurately the value of plan benefits as early as possible before initiating the termination process. For that purpose, if a plan has a valuation date in 2002, the plan administrator needs the updated table being promulgated in this rule. Accordingly, the public interest is best served by issuing this table expeditiously, without an opportunity for notice and comment, to allow as much time as possible to estimate the value of plan benefits with the proper table for plans with valuation dates in early 2002.

The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this regulation, the Regulatory Flexibility Act of 1980 does not apply (5 U.S.C. 601(2)).

The Beach Channel Railroad Bridge has a vertical clearance in the closed position of 26 feet at mean high water and 31 feet at mean low water. The existing regulations require the draw to open on signal at all times; however, a temporary final rule was published on May 31, 2001, (66 FR 29483) entitled Drawbridge Operation Regulations Jamaica Bay and connecting waterways, New York. Under this temporary final rule the bridge owner was allowed to require a twenty-four hours advance notice for openings from May 18, 2001 through November 30, 2001, to facilitate structural maintenance at the bridge.

The bridge owner, New York City Transit, has requested a temporary deviation from the drawbridge operating regulations to facilitate additional structural maintenance at the bridge.

Additional deteriorated structural components were discovered during the approved maintenance repairs authorized under the existing temporary final rulemaking in effect until November 30, 2001. The nature of the required additional structural repairs will require the bridge to be closed to navigation and rail traffic during the implementation of this work.

This deviation to the operating regulations will allow the bridge to remain in the closed position during the following time periods: 6 a.m. December 03 through 9 p.m. December 06, 2001, 6 a.m. December 10 through 9 p.m. December 13, 2001, 6 a.m. December 17 through 9 p.m. December 20, 2001.

This deviation from the operating regulations is authorized under 33 CFR 117.35, and will be performed with all due speed in order to return the bridge to normal operation as soon as possible.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553, the Coast Guard finds that good cause exists for not publishing an NPRM. On September 11, 2001, two commercial aircraft were hijacked from Logan Airport in Boston, Massachusetts and flown into the World Trade Center in New York, New York inflicting catastrophic human casualties and property damage. A similar attack was conducted on the Pentagon on the same day. National security and intelligence officials warn that future terrorist attacks against civilian targets may be anticipated. Due to the flammable nature of the Liquid Natural Gas Carrier (LNGC) vessel cargo, this rulemaking is urgently required to prevent possible terrorist strikes against LNGC vessels within and adjacent to waters within the Boston Marine Inspection Zone and Captain of the Port Zone. The delay inherent in the NPRM process is contrary to the public interest insofar as it would render LNGC vessels transiting the port of Boston vulnerable to subversive activity, sabotage or terrorist attack, and immediate action is necessary to protect persons, vessels and others in the maritime community from the hazards associated with the transit and limited maneuverability of a large tank vessel.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The measures contemplated by the rule are intended to prevent possible terrorist attacks against LNGC vessels, and to protect other vessels, waterfront facilities, the public and the port of Boston from potential sabotage or other subversive acts, accidents or other causes of a similar nature. In addition, the zones protect persons, vessels and others in the maritime community from the hazards associated with the transit and limited maneuverability of a large tank vessel. Immediate action is required to accomplish these objectives. Any delay in the effective date of this rule is impracticable and contrary to the public interest. These zones should have minimal impact on the users of the Boston Marine Inspection Zone and Captain of the Port Zone, Boston Harbor and Broad Sound as LNGC vessel transits are infrequent, vessels have ample water to transit around the zones while at anchor in Broad Sound, the zones established while the vessel is transiting are moving safety and security zones, allowing vessels to transit ahead, behind or after passage of an LNGC vessel, and public notifications will be made prior to an LNGC transit via local notice to mariners and marine information broadcasts.

In light of the terrorist attacks in New York City and Washington, D.C. on September 11, 2001, safety and security zones are being established to safeguard the LNGC vessels, the public and the surrounding area from sabotage or other subversive acts, accidents, or other events of a similar nature, and to protect persons, vessels and others in the maritime community from the hazards associated with the transit and limited maneuverability of a large tank vessel. These safety and security zones prohibit entry into or movement within the specified areas.

This rulemaking establishes safety and security zones in a radius around LNGC vessels while the vessels are anchored in Broad Sound, and while moored at the Distrigas waterfront facility. It also creates a moving safety zone any time an LNGC vessel is within Boston Marine Inspection Zone and Captain of the Port Zone, as defined in 33 CFR 3.05-10, in the internal waters of the United States and the navigable waters of the United States. Under the Ports and Waterways Safety Act (PWSA), navigable waters of the United States includes all waters of the territorial sea of the United States as described in Presidential Proclamation No. 5928 of December 27, 1988. This Presidential Proclamation declared that the territorial sea of the United States extends to 12 nautical miles from the baselines of the United States determined in accordance with international law. This regulation establishes safety and security zones with identical boundaries covering the following areas of the Boston Marine Inspection Zone and Captain of the Port Zone: (1) In the waters of Broad Sound bounded by a line starting at position 42° 25′ N, 070° 58′ W; then running southeast to position 42° 22′ N, 070° 56′ W; then running east to position 42° 22′ N, 070° 50′ W; then running north to position 42° 25′ N, 070° 50′ W; then running west back to the starting point; all waters within a 500-yard radius of any anchored Liquid Natural Gas Carrier; (2) all waters within a 500-yard radius of any LNGC vessel moored at the DISTRIGAS Facility, in Everett, Massachusetts; (3) Except as provided in sections (1) and (2) above, in the internal waters of the United States and the navigable waters of the United States, as defined by 33 U.S.C. 1222(5), that are within the Boston Marine Inspection Zone and Captain of the Port Zone, as defined in 33 CFR 3.05-10, two miles ahead and one mile astern, and 1000-yards on each side of any LNGC vessel.

This rulemaking also temporarily suspends a safety zone for liquefied natural gas tank vessel (LNG) transits into Boston Harbor, located at 33 CFR 165.110(a). 33 CFR 165.110 establishes a safety zone bounded by the limits of the Boston Main Ship Channel and extending two miles ahead and one mile astern of a loaded LNG vessel transiting the Boston North Channel and Boston Harbor. That safety zone ends when the vessel reaches the Distrigas waterfront facility in the Mystic River, Everett, Massachusetts. Section 165.110 also establishes a safety zone extending 150-feet around a loaded LNG vessel while the vessel is alongside the Distrigas facility, and the vessel remains in a loaded condition or is transferring liquefied natural gas. Section 165.110 recognizes the safety concerns with transits of large tank vessels, but is inadequate to protect LNGC vessels from possible terrorist attack, sabotage or other subversive acts. National security and intelligence officials warn that future terrorist attacks against civilian targets may be anticipated. Due to the flammable nature of LNGC vessels and impact the ignition of this cargo would have on the port of Boston and surrounding areas, increased protection of these vessels is necessary. In comparison to 33 CFR 165.110, this rulemaking provides increased protection for LNGC vessels as follows: It establishes safety and security zones around LNGC vessels anchored in Broad Sound; it increases protection for LNGC vessels moored at the Distrigas facility from 150-feet to 500-yards around a vessel; and it provides continuous protection for LNGC vessels 2 miles ahead, 1 mile astern, and 1000-yards on each side of LNGC vessels anytime a vessel is within the internal waters of the United States and out to 12 nautical miles, seaward from the baselines of the United States, as determined by international law, within the Boston Marine Inspection Zone and Captain of the Port Zone, rather than limiting this protection to the limits of the Boston Main Ship Channel while a vessel is transiting Boston Harbor and Boston North Channel. The increased protection provided in this rulemaking also recognizes the safety concerns associated with an unloaded LNGC vessel. 33 CFR 165.110 only establishes safety zones around loaded LNG tank vessels or while the vessel is transferring its cargo. This rulemaking establishes safety and security zones around any LNGC vessels, loaded or unloaded, while anchored in Broad Sound, moored at the Distrigas facility, and any time a LNGC vessel is located in the Boston Marine Inspection Zone and Captain of the Port Zone, including the internal waters and out to 12 nautical miles from the baseline of the United States. These zones provide necessary protection to unloaded vessels, which continue to pose a safety/security hazard. This rulemaking also recognizes the continued need for safety zones around LNGC vessels, which are necessary to protect persons, facilities, vessels and others in the maritime community, from the hazards associated with the transit and limited maneuverability of a large tank vessel.

No person or vessel may enter or remain in the prescribed safety and security zones at any time without the permission of the Captain of the Port. Each person or vessel in a safety and security zone shall obey any direction or order of the Captain of the Port. The Captain of the Port may take possession and control of any vessel in a security zone and/or remove any person, vessel, article or thing from a security zone. No person may board, take or place any article or thing on board any vessel or waterfront facility in a security zone without permission of the Captain of the Port. These regulations are issued under authority contained in 50 U.S.C. 191, 33 U.S.C. 1223, 1225 and 1226.

Any violation of any safety or security zone described herein, is punishable by, among others, civil penalties (not to exceed $25,000 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment for not more than 10 years and a fine of not more than $100,000), in rem liability against the offending vessel, and license sanctions.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, l979).

The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

The effect of this regulation will not be significant for several reasons: the minimal time that vessels will be restricted from the areas, there is ample room for vessels to navigate around the zones in Broad Sound and, in most portions of the navigable waters of the United States, vessels can transit ahead, behind, and after passage of LNGC vessels, and advance notifications will be made to the local maritime community by marine information broadcasts.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Broad Sound or Boston Harbor. For the reasons enumerated in the Regulatory Evaluation section above, these safety and security zones will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If your small business or organization would be affected by this rule and you have questions concerning its provisions or options for compliance, please call Chief Petty Officer Michael Popovich, telephone (617) 223-3000. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comments on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

The Coast Guard analyzed this rule under Executive Order 13132 and has determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government having first provided the funds to pay those costs. This rule would not impose an unfunded mandate.

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

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

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

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

The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

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

Section 118 of the Copyright Act, 17 U.S.C., creates a compulsory license for the use of published nondramatic musical works and published pictorial, graphic, and sculptural works in connection with noncommercial broadcasting. Terms and rates for this compulsory license, applicable to parties who are not subject to privately negotiated licenses, are published in 37 CFR part 253 and are subject to adjustment at five-year intervals. 17 U.S.C. 118(c). The last proceeding to adjust the terms and rates for the section 118 license began in 1996. 61 FR 54458 (October 18, 1996).

On January 14, 1998, the Copyright Office announced final regulations governing the terms and rates of copyright royalty payments with respect to certain uses by public broadcasting entities of published nondramatic musical works, and published pictorial, graphic, and sculptural works, including the 1998 rates for the public performance of musical compositions in the ASCAP, BMI, and SESAC repertories by public broadcasting entities licensed to colleges and universities. 63 FR 2142 (January 14, 1998).

Pursuant to these regulations, on December 1 of each year “the Librarian of Congress shall publish a notice of the change in the cost of living during the period from the most recent Index published prior to the previous notice, to the most recent Index published prior to December 1, of that year.” 37 CFR 253.10(a). The regulations also require that the Librarian publish a revised schedule of rates for the public performance of musical compositions in the ASCAP, BMI, and SESAC repertories by public broadcasting entities licensed to colleges and universities, reflecting the change in the Consumer Price Index. 37 CFR 253.10(b).

Accordingly, the Copyright Office of the Library of Congress is hereby announcing the change in the Consumer Price Index and performing the annual cost of living adjustment to the rates set out in § 253.5(c). 63 FR 2142 (January 14, 1998).

The change in the cost of living as determined by the Consumer Price Index (all consumers, all items) during the period from the most recent Index published before December 1, 2000, to the most recent Index published before December 1, 2001, is 2.1% (2000's figure was 174.0; the figure for 2001 is 177.7, based on 1982-1984=100 as a reference base). Rounding off to the nearest dollar, the adjustment in the royalty rate for the use of musical compositions in the repertory of ASCAP and BMI is $244, each, and $66 for the use of musical compositions in the repertory of SESAC.

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

On May 24, 2001 (66 FR 28685), EPA proposed to approve the following rule into the Arizona SIP.

We proposed to approve this rule because we determined that it complied with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

EPA's proposed action provided a 30-day public comment period. During this period, we received comments from the following party.

1. D. Douglas Fratz and Joseph T. Yost, Consumer Specialty Products Association (CSPA); letter dated June 22, 2001.

CSPA's comments pertain to the test method, Maricopa County Reference Method #100 (RM 100), used for determining compliance, and to the consistency of MCESD Rule 344 with other consumer product regulations. CSPA's comments and our responses are summarized below.

Comment: Because RM 100 reports results as total organic carbon and different VOCs have different percentages of carbon, it is not possible to accurately convert RM 100 results into the terms in which the limits of MCESD Rule 344 are expressed, mass of VOC.

Response: Conversion of RM 100 test results from mass of carbon to the mass of VOC is relatively simple for windshield washer fluids (WWF) containing a single VOC and slightly more complex for WWFs containing multiple VOCs.

Converting the mass of carbon from the test result to mass of VOC involves multiplying the test results by the ratio of molecular weights. Based on EPA's survey used to develop the national Consumer Products Rule (40 CFR part 59, subpart C) and the California Air Resources Board's (CARB) consumer products speciation profile  1 for automobile WWFs, the predominant VOC used in WWFs is methanol. If methanol is the only VOC present, the conversion factor from mass of carbon to mass of VOC is 32/12. For WWFs containing multiple VOCs, the conversion from mass of carbon to mass of VOC can still be done if the VOCs and their approximate proportions are known.

RM 100 allows the use of either infrared (IR) or flame ionization (FID) detectors. If an IR or FID detector is calibrated with methanol, and methanol is the only VOC present, then a laboratory could report results directly as percent methanol. If VOCs other than methanol are present, then this method would tend to overestimate the total mass of VOC. Only if the results from these methods exceed the limits of MCESD Rule 344 would further data reduction and investigation using the above mass of carbon to mass of VOC conversion method be necessary. EPA may also approve other methods should they be submitted for evaluation.

Comment: RM 100 will overestimate the total organic carbon associated with VOCs for WWFs containing one or more exempt compounds because it does not distinguish between organic carbon from VOCs and organic carbon from non-precursor organic compounds.

Response: Maricopa County's list of non-precursor organic compounds is the same as EPA's. There are relatively few compounds on that list that could be used in WWFs because many are not soluble in water. Acetone is one of the few compounds that is soluble in water but is unlikely to be used in WWFs because of its potential to damage a vehicle's paint. If WWFs contain exempt solvents, manufacturers would be allowed to subtract the mass of exempt solvents from the mass of VOC and could petition the MCESD for an alternative method by which to do that.

Comment: RM 100 will overestimate the total organic carbon associated with VOCs because it does not distinguish between volatile organic compounds and non-volatile organic compounds. Certain compounds in WWFs, like organic dyes or other non-volatile organic compounds, cannot participate in the atmospheric photochemical reactions that produce ozone because they do not volatilize to the air.

Response: While it is difficult to know how significantly dyes or other non-volatile organic compounds might increase the total VOC content of WWFs, a review of material safety data sheets indicates that the actual mass of dyes and other non-volatile organic compounds added to WWFs tends to be small. If the amount of non-volatile organic compounds is considerable and may influence a compliance determination, EPA recommends the manufacturer petition the MCESD for alternative methods to exclude the mass of dyes and non-volatile organic compounds from the mass of VOCs.

Comment: Rule 344 is problematically inconsistent with analogous federal and California regulations. Specifically, many products that would comply with a 10 percent VOC limitation according to EPA and California regulations may not comply with that same limitation under the provisions of MCESD Rule 344 because: (1) There is no process to sell-through a product that exceeds the VOC limit but was manufactured before the effective date of the rule, (2) “low vapor pressure” (LVP) compounds that are not volatile are not exempted, (3) the types of “reasonable prudent precautions” allowed in all other consumer product rules to assure that a non-complying product sold in the County will be resold for use outside the County are artificially restricted under the rule, (4) concentrated product labels with dilution instructions resulting in stronger WWF formulations for users outside of Maricopa County are not allowed, and (5) an “innovative products” provision which allows products to exceed the applicable VOC limit if the use of such “innovative products” ultimately results in lower VOC emissions is not allowed.

Response: While we appreciate that consistency is desirable for affected industry, state and local agencies have broad authority to develop regulations and are not required to be consistent in all regards. In fact, section 59.211 of the final national Consumer Products Rule explicitly provides that states and their political subdivisions retain authority to adopt and enforce their own additional regulations affecting these products. Accordingly, MCESD may impose more stringent requirements for WWFs as part of its SIP and its election to do so is not a basis for EPA to disapprove the SIP. See Union Electric Co. v. EPA , 427 U.S. 246, 265-66 (1976). EPA favors national uniformity in consumer and commercial product regulation, but recognizes that some localities may need more stringent regulation to combat more serious and more intransigent ozone nonattainment problems.

Furthermore, while California consumer products regulations allow products to be sold, supplied, or offered for sale up to three years after the effective date of the rule, MCESD Rule 344 is consistent with the national Consumer Products Rule which does not contain a sell-through period. As explained in the background document, 2 manufacturers' current “just in time” inventory practices and the expense and lack of sufficient storage space do not create large stockpiles of noncomplying products which might warrant a sell-through period. EPA considers the incorporation of a sell-through period to be at the discretion of the local agency.

The amount of LVP compounds such as surfactants or ethylene glycol used in WWFs tends to be minimal so as not to affect a product's ability to clean and evaporate quickly without leaving a residue. A review of the CARB's Initial Statement of Reasons for Proposed Amendments to the California Consumer Products Regulation dated September 10, 1999 indicates that surfactants in a possible windshield washer formulation may account for 0.05 weight percent. As stated above, EPA cannot object to MCESD Rule 344 taking a more stringent approach than the national Consumer Products Rule and concurs with MCESD's decision to not exempt LVP compounds in Rule 344.

Section 303 of MCESD rule 344 exempts non-complying WWFs destined for use outside of Maricopa County. Section 303 also specifies the information required to prove that non-complying products sold within Maricopa County are actually destined for use outside of the County. Although MCESD Rule 344 is more prescriptive than California's Consumer Products Rule which allows manufacturers and distributors of non-compliant products some flexibility to take “reasonable prudent precautions” to assure that the consumer product is not distributed in California, Rule 344, as written, meets EPA's enforceability requirements.

MCESD adopted requirements in section 302e of Rule 344 that prohibit the dilution of WWFs that would yield solutions that exceed the VOC limit of the rule. Labeling products with directions which yield WWFs that are more concentrated than the 10% VOC limit is potentially confusing to the end user in the County and may create more enforcement problems. The requirement that all dilution instructions for concentrated products never exceed 10% ensures that MCESD will achieve the emissions reductions expected from Rule 344. EPA supports MCESD's intent to establish clear, enforceable labeling requirements.

Inclusion of an innovative products provision in MCESD Rule 344 would allow greater flexibility for manufacturers to meet Rule 344's VOC content limit. However, California has had a 10% VOC limit for WWFs since 1993 and no innovative product requests for WWFs have been submitted to CARB. Therefore, EPA considers Maricopa County's limit of 10% to be reasonable and achievable.

None of the submitted comments change our assessment that the submitted rule complies with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving this rule into the Arizona SIP.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 32111, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 29, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

The EPA is approving an adjusted standard from the Flexographic Printing Rule for Bema. Bema is to comply with the requirements in its adjusted standard. The requirements include a reduction of the market-based emissions trading system baseline, maintaining daily records of inks and VOC content, conducting trials of compliant inks, and reviewing alternate control technologies.

The adjusted standard changes the VOC rule Bema must follow. Bema's facility is located in the metropolitan Chicago severe ozone non-attainment area. Bema, with a permitted VOC emissions limit of 77.4 tons per year (TPY), is classified as a major source because it can emit more than 25 TPY of VOC. Chicago area flexographic printers classified as major VOC sources are subject to the Flexographic Printing Rule. This rule requires printers to either use compliant inks (low or no VOC content) or use a VOC emissions control device. Limiting VOC emissions will help to reduce ozone because VOC can chemically react in the atmosphere to form ozone.

The adjusted standard given to Bema changes its requirements to reduce the market-based emissions trading system allotment baseline, maintaining daily records, and to conduct trials with compliant inks and control devices. The market-based trading system will allow Bema to buy emissions allotments from companies which can reduce their VOC emissions at a lower cost than Bema can. The net VOC emissions of all participants meets the desired reductions.

Illinois included information on compliant ink trials and control device studies at Bema. The Flexographic Printing Rule requires sources to use either compliant inks or to use a control device to limit VOC emissions. To evaluate what RACT is for Bema, the first consideration is to determine what options would work. The costs of the options that will work are then estimated. The economic burden on the company is then considered. If the compliance costs are determined to be too high, this option is not considered RACT.

Bema ran trials of printing with compliant inks. It also determined what control technologies would work and their cost. The Illinois Pollution Control Board concluded that using either compliant inks or a control device would not be RACT for Bema. The EPA concurs. The adjusted standard requirements are considered RACT by the Board. Printing on plastic with compliant inks is rather difficult. The low VOC content in Bema's exhaust causes control devices to have high operational costs. Similar printers have been granted adjusted standards with comparable requirements.

Bema is located in the Chicago severe ozone non-attainment area. Its permitted VOC limit is 77.4 TPY, but its actual emissions are 18 to 30 TPY. VOC can chemically react to form ozone, so limiting VOC emissions in an ozone non-attainment area is desired. Should Bema trigger participation in the Illinois market-based emissions trading program, the adjusted standard lowers its baseline which will require Bema to acquire more trading allotments. Bema can buy emission allotments from other participants. All participants need to own allotments covering their VOC emissions for the ozone season (May 1 to September 30). The trading program reduces the total VOC emissions from the Chicago area. The total area wide emissions are limited by the number of allotments distributed by IEPA to the participants.

The EPA is approving, through direct final rulemaking, revisions to the VOC emissions rules for Bema Film Systems in DuPage County, Illinois. These revisions are the required compliance with an adjusted standard to the Flexographic Printing Rule. The Illinois Pollution Control determined that the adjusted standard is RACT for Bema. The requirements of the adjusted standard include reducing the market-based emissions trading system baseline, maintaining daily records, conducting compliant ink trials, and investigation of alternative control devices.

We are publishing this action without a prior proposal because we view these as non-controversial revisions and anticipate no adverse comments. However, in the “Proposed Rules” section of today's Federal Register , we are publishing a separate document that serves as the proposal to approve the SIP revision if adverse written comments are filed. This rule will be effective on January 29, 2002. If the EPA receives an adverse written comment, we will publish a final rule informing the public that this rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. The EPA does not intend to institute a second comment period on this action. Any parties interested in commenting on this action must do so now.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 29, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

The EPA is approving an adjusted standard from the Flexographic Printing Rule for Vonco. Vonco is to comply with the requirements in its adjusted standard. The requirements include a reduction in the market-based emissions trading system baseline, maintaining daily records of inks and VOC content, conducting trials of compliant inks, and reviewing alternate control technologies.

The adjusted standard changes the VOC rule Vonco must follow. Vonco's facility is located in the metropolitan Chicago severe ozone non-attainment area. Vonco, with a permitted VOC emissions limit of 55.8 tons per year (TPY), is classified as a major source because it can emit more than 25 TPY of VOC. Chicago area flexographic printers classified as major VOC sources are subject to the Flexographic Printing Rule. This rule requires printers to either use compliant inks (low or no VOC content) or use a VOC emissions control device. Limiting VOC emissions will help to reduce ozone because VOC can chemically react in the atmosphere to form ozone.

The adjusted standard given to Vonco changes its requirements to reduce the market-based emissions trading system allotment baseline, maintaining daily records, and conducting trials with compliant inks and control devices. The market-based trading system will allow Vonco to buy emissions allotments from companies which can reduce their VOC emissions at a lower cost than Vonco can. The net VOC emissions of all participants meet the desired reductions.

Illinois included information on compliant ink trials and control device studies at Vonco. The Flexographic Printing Rule requires sources to use either compliant inks or to use a control device to limit VOC emissions. To evaluate what RACT is for Vonco, the first consideration is to determine what options would work. The costs of the options that will work are then estimated and the economic burden on the company is considered. If the compliance costs of an option are determined to be too high, this option is not considered RACT.

Vonco ran trials of printing with compliant inks. It also determined what control technologies would work and their costs. The Illinois Pollution Control Board concluded that using either compliant inks or a control device would not be RACT for Vonco. The EPA concurs. Printing on plastic with compliant inks is rather difficult. Low VOC content in Vonco's exhaust causes control devices to have high operational costs. The adjusted standard requirements are considered RACT by the Board. Similar printers have been granted adjusted standards with comparable requirements.

Vonco is located in the Chicago severe ozone non-attainment area. It is permitted to emit up to 55.8 TPY of VOC. The actual VOC emissions from this facility are about 20-25 TPY. VOC can chemically react to form ozone, so limiting VOC emissions in an ozone non-attainment area is desired. Should Vonco trigger participation in the Illinois market-based emissions trading program, the adjusted standard lowers its baseline which will require Vonco to acquire more trading allotments. Vonco can buy emission allotments from other participants. Participants need to own allotments covering their VOC emissions for the ozone season (May 1 to September 30). The trading program reduces the total VOC emissions from the Chicago area. The total area wide emissions are limited by the number of allotments distributed by IEPA to participants.

The EPA is approving, through direct final rulemaking, revisions to the volatile organic compound rules for Vonco Products, Incorporated of Lake County, Illinois. These revisions are the required compliance with an adjusted standard to the Flexographic Printing Rule. The Illinois Pollution Control Board determined that the adjusted standard is RACT for Vonco. The requirements of the adjusted standard include reducing the market-based emissions trading system allotment baseline, maintaining daily records, conducting compliant ink trials, and investigation of alternative control devices.

We are publishing this action without a prior proposal because we view these as non-controversial revisions and anticipate no adverse comments. However, in the Proposed Rules section of today's Federal Register , we are publishing a separate document that serves as the proposal to approve the SIP revision if adverse written comments are filed. This rule will be effective on January 29, 2002. If the EPA receives an adverse written comment, we will publish a final rule informing the public that this rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. The EPA does not intend to institute a second comment period on this action. Any parties interested in commenting on this action must do so now.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 29, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:

Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.

Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

On October 24, 2001, we received a request from the Missouri Department of Natural Resources to approve as an amendment to the Missouri SIP revisions to rule 10 CSR 10-6.400, Restriction of Emission of Particulate Matter From Industrial Processes.

The underlying rule generally establishes particulate matter emission limits for industrial processes through the use of process weight rate tables and process emission calculations. The emission limits were approved into the SIP a number of years ago. In acting on the revisions to the rule discussed below, EPA has not reevaluated the emission limits to determine their adequacy with respect to attainment and maintenance of the NAAQS. However, EPA believes that the revisions to the rule discussed below are approvable because they strengthen the underlying rule.

The state has revised its existing SIP approved rule with the following revisions. Section (1), applicability requirements, was clarified by specifically listing certain exemption categories in the rule. Also, section (1)(C) was added, which states that if another, more stringent state rule applies to particulate matter emission units, then this rule does not apply.

In the definitions section of the rule, paragraph (2)(B)(1) was added to fully explain the definition of process weight. In subsection (2)(C), language was deleted in order for the definition of a jobbing cupola to be the same throughout the state.

In paragraph (3)(A)(3), relating to calculating compliance with the emission limits when a control device is used, language was added which provides that the control equipment must be required by an enforceable restriction. This will help ensure that circumvention of the rule does not occur.

Finally, section (4), reporting and recordkeeping, was added. This section requires that records of any tests performed to determine the amount of particulate matter emitted from a unit shall be kept on-site and available for inspection for five years.

The revised rule was adopted by the Missouri Air Conservation Commission on April 26, 2001, and became effective on September 30, 2001.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document which is part of this action, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

We are processing this action as a final action because the revisions make routine changes to the existing rules which are noncontroversial. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision is severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 29, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

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

The EPA is approving revisions to Indiana's opacity rule. IDEM submitted this revised opacity regulation to the EPA on October 21, 1999, as a requested revision to its SIP. The revisions address applicable requirements concerning the startup and shutdown of operations, the terminology used in discussing averaging periods, time periods for temporary exemptions, alternative opacity limits, and conflicts between visible emission readings and COM data. The boiler startup and shutdown revisions satisfy the Clean Air Act requirements and the EPA policy on such provisions. Other rule revisions aid the enforcement of the opacity rules.

The State's submission revises several sections of Indiana's opacity rule, 326 IAC Article 5. The revisions involve permanent alternative opacity limits (AOLs) for utility boilers, conflicts between COM data and visible emission readings, clarification of averaging periods, temporary AOLs for non-boiler sources, and exemptions for sources with consolidated Title V permit limits.

The major new component of these revisions allows certain utility boilers to obtain source-specific AOLs during startup and shutdown periods in their federally enforceable operating permits. The AOL must fall within a range established in the rule, 326 IAC 5-1-3(e). This provision is for power plants using coal-fired boilers and electrostatic precipitators (ESPs).

The current SIP version states that if there is a conflict between opacity readings recorded by a COM and those taken by a human observer, the COM data will prevail. The EPA requested this rule be revised to make enforcement easier. Indiana revised the rule, 326 IAC 5-1-4(b), to state that data from either a COM or a human observer may be used to show a violation of opacity limits. The basis for this change is that there are certain instances in which opacity readings from an observer may be more accurate than those from a COM. For example, sulfur in a high-temperature gas stream exists in a gaseous state inside a smokestack and would not register on a COM. Once the gas stream comes in contact with the atmosphere, however, chemical reactions and cooling occur, causing visible emissions which can be seen by an observer.

The current version of this rule, 326 IAC 5-1-2, states that the limits are not to be exceeded “in 24 consecutive readings” with readings taken every 15 seconds. The revised rule states that the limits are not to be exceeded in “any one 6-minute averaging period.” The limits themselves are unchanged. Indiana made a similar clarification of time averaging periods for temporary AOLs. Under 326 IAC 5-1-3(a) and (b), Indiana may provide temporary AOLs to certain sources for startup, shutdown, and ash removal. Both of these revisions improve the ability to enforce the rule by making it clearer and more consistent with the opacity test method. The test method (40 CFR 60, Appendix A, Method 9) calls for opacity readings to be taken by an observer every 15 seconds, and for these readings to be averaged on a 6-minute basis.

New provisions in 326 IAC 5-1-3(c) authorize Indiana to grant temporary AOLs to non-boiler sources. These sources now may apply for a short-term opacity AOL for startup, shutdown, and ash removal situations. IDEM will submit any temporary AOLs to the EPA as site-specific SIP revisions. The EPA will review them for compliance with Clean Air Act requirements and EPA policy. This rule revision does not directly effect any SIP emissions limits.

Indiana's rule had provided an exemption from opacity limits for any source with a specific opacity limit in a Title V permit. The rule, 326 IAC 5-1-1, allowed sources to consolidate multiple limits into a single limit in the Title V permit. This is known as “streamlining.” The EPA had informed Indiana that the exemption was inappropriate because it had impermissibly suggested that Title V permits could create SIP exemptions. As a result, Indiana removed the exemption from 326 IAC 5-1-1.

The EPA used the September 20, 1999, memorandum entitled “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” to evaluate the exemptions provisions in 326 IAC 5-1-3(e). To be approved, the provisions must meet the seven requirements in this memorandum. The requirements are:

1. The revision must be limited to specific, narrowly-defined source categories using specific control strategies;

2. Use of the control strategy for this source category must be technically infeasible during startup or shutdown periods;

3. The frequency and duration of operation in startup or shutdown mode must be minimized;

4. As part of its justification of the SIP revision, the state should analyze the potential worst-case emissions that could occur during startup and shutdown;

5. All possible steps must be taken to minimize the impact of emissions during startup and shutdown on ambient air quality;

6. At all times, the facility must be operated in a manner consistent with good practice for minimizing emissions;

7. The owner or operator's actions during startup and shutdown periods must be documented by properly signed, concurrent operating logs, or other relevant evidence;

Indiana has met all seven requirements. Language in Indiana's rules meets requirements three, five, six, and seven. An October 10, 2001, letter from IDEM states that the AOL will only be given to 22 power plants using coal-fired boilers with ESPs. This satisfies the first requirement. IDEM supplied technical documentation on the infeasibility of ESPs during startup and shutdown to meet requirement two. Indiana provided modeling analysis of the potential worst case emissions to meet the fourth requirement, as discussed in section IV below.

In addition to the supporting material for the exemptions in 326 IAC 5-1-3(e), Indiana provided support for its other opacity revisions. Revised language in 326 IAC 5-1-2 clarifies the averaging period for opacity level readings. The averaging period is now “any one (1) six (6) minute averaging period.” The former limit of “twenty-four (24) consecutive readings” (readings are taken every 15 seconds) was revised to aid enforcement of the opacity rules. Indiana also submitted revisions to 326 IAC 5-1-3 (a), and (b) which provide sources short-term temporary alternate opacity limits for startup, shutdown, and ash blowing. The AOLs in sections (a) will now be granted for up to “two (2) six (6) minute averaging periods” in any twenty-four hour period. Previously, the limit was stated as “twelve (12) continuous minutes.” Section (b) similarly changes a “six (6) continuous minutes” to “one (1) six (6) minute” averaging period. The 326 IAC 5-1-3 (a) and (b) revisions also aid rule enforcement.

Indiana also revised 326 IAC 5-1-3 (c) to include non-boiler sources located outside of Lake County with similar AOLs to those of 326 IAC 5-1-3 (a) and (b). Language in 326 IAC 5-1-1 allowing an opacity limits exemption for any source with a specific opacity limit in a Title V permit was removed. This exemption was removed because it had impermissibly suggested that Title V permits could create SIP exemptions.

Indiana held two public hearings on the opacity rule revisions, giving interested parties an opportunity to comment. It held the first public hearing on December 3, 1997 and the second on June 3, 1998. Transcripts of the public hearing are included in the submittal. Representatives from electric utilities, a university, and a cement company made comments at the hearings. These comments were generally supportive of the rule revisions. There were two commentors who expressed concern about 326 IAC 5-1-4(b). This section addresses conflicts between visual opacity readings and those taken with a COM. Indiana further revised this section in response to the comments. Section 5-1-4(b) now states that either visual or COM readings may be used. The method decision will be made based on which method is determined to be most accurate given the case-specific circumstances. Considering the comments made during the two hearings and how Indiana addressed the comments, the EPA does not anticipate receiving any adverse comments on this matter.

Indiana submitted a modeling analysis aimed at assessing the worst-case impact of the alternate limits in 326 IAC 5-1-3(e). This modeling analysis addresses the fourth requirement of EPA's September 20, 1999 policy. Of the 22 eligible facilities, IDEM modeled PSI Energy's power plant in Edwardsport because it has the shortest stacks (183 feet) and the most significant impact from building downwash. A conservative emissions rate was calculated by estimating uncontrolled emissions under full-load operating conditions for a conservative eight-hour startup period. IDEM developed a conservative estimate of background concentrations in the area of the Edwardsport plant. It showed that application of this background value to the other relevant power plants (none of which is in the Lake County non-attainment area) would provide a similar degree of conservatism.

Indiana used five years of meteorological data. The Edwardsport modeling results show an ambient particulate matter of 10μm or less in diameter (PM-10) concentration of 98.6 μg/m 3 , well below the 24-hour average PM-10 standard of 150 μg/m 3 . Thus, IDEM has demonstrated that the startup and shutdown AOL in 326 IAC 5-1-3 is not expected to cause a violation of the PM-10 air quality standards.

The EPA further examined whether air quality problems could arise from multiple sources operating in startup or shutdown mode simultaneously. With one exception, the relevant power plants are isolated from each other. The one exception is for two facilities in Warrick County. Because the two facilities are about 3 kilometers apart, and because these facilities have significantly higher stacks than the Edwardsport facility, EPA is satisfied that simultaneous operation in startup or shutdown mode at these two facilities will not cause air quality problems. In addition, because operation in startup or shutdown mode (particularly eight hours of such operation) is infrequent, simultaneous operation in these modes at more than one source is unlikely. Consequently, the EPA believes that granting the exemption requested by Indiana will not jeopardize continued attainment of the air quality standards.

The EPA is approving, through direct final rulemaking, revisions to Indiana's opacity rule. The revised regulation address provisions concerning the startup and shutdown of operations, terminology used in discussing averaging periods, time periods for temporary exemptions, alternative opacity limits, and conflicts between visible readings and COM data.

We are publishing this action without a prior proposal because we view these as noncontroversial revisions and anticipate no adverse comments. However, in the “Proposed Rules” section of today's Federal Register , we are publishing a separate document that serves as the proposal to approve the SIP revision if adverse written comments are filed. This rule will be effective on January 29, 2002 without further notice unless we receive relevant adverse written comments by December 31, 2001. If the EPA receives adverse written comment, we will publish a final rule informing the public that this rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. The EPA does not intend to institute a second comment period. Any parties interested in commenting on these actions must do so at this time.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 29, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.

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

Section 9004 of the Resource Conservation and Recovery Act (RCRA) authorizes the Environmental Protection Agency (EPA) to approve State Underground Storage Tank Programs to operate in the State in lieu of the Federal Underground Storage Tank (UST) Program. To qualify for final authorization, a State's Program must: (1) Be “no less stringent” than the Federal Program for the seven elements set forth at RCRA Section 9004(a) (1) through (7); and (2) provide for adequate enforcement of compliance with UST standards of RCRA Section 9004(a). Note that RCRA Sections 9005 (on information-gathering) and 9006 (on Federal enforcement) by their terms apply even in States with Programs approved by the EPA under RCRA Section 9004. Thus, the Agency retains its authority under RCRA Sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions in approved States. With respect to such an enforcement action, the Agency will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the State authorized analogues to these provisions.

On May 11, 2000, the State of Minnesota submitted an official application to obtain final program approval to administer the Underground Storage Tank Program for petroleum and hazardous substances. On August 6, 2001, the EPA published a tentative decision announcing its intent to grant Minnesota final approval. Further background on the tentative decision to grant approval appears at 66 FR 40954-40957, August 6, 2001.

Along with the tentative determination, the EPA announced the availability of the application for public comment and the date of a public hearing on the application. The EPA requested advance notice for testimony and reserved the right to cancel the public hearing for lack of public interest. Since there was no public request, the public hearing was cancelled. No public comments were received regarding the EPA's approval of Minnesota's Underground Storage Tank Program.

The State of Minnesota is not approved to operate the Underground Storage Tank Program in Indian Country within the State's borders.

I conclude that the State of Minnesota's application for final program approval meets all of the statutory and regulatory requirements established by Subtitle I of RCRA. Accordingly, Minnesota is granted final approval to operate its Underground Storage Tank Program for petroleum and hazardous substances. The State of Minnesota now has the responsibility for managing all regulated underground storage tank facilities within its border and carrying out all aspects of the Underground Storage Tank Program except with regard to Indian Country where the EPA will have regulatory authority. Minnesota also has primary enforcement responsibility, although the EPA retains the right to conduct enforcement actions under Section 9006 of RCRA.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, Local, and Tribal Governments and the private sector. Under Section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, Local, and Tribal Governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, Section 205 of the UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of Section 205 do not apply when they are inconsistent with applicable law. Moreover, Section 205 allows the EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal Governments, it must have developed under Section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling Officials of affected small governments to have meaningful and timely input in the development of the EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Today's rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, Local or Tribal Governments or the private sector. The UMRA generally excludes from the definition of “Federal intergovernmental mandate” duties that arise from participation in a voluntary Federal program. Minnesota's participation in the EPA's State Program approval process under RCRA Subtitle I is voluntary. Thus, today's rule is not subject to the requirements of Sections 202 and 205 of the UMRA.

In addition, the EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Although small governments may own and/or operate underground storage tanks, they are already subject to the regulatory requirements under the existing State requirements that the EPA is now approving and, thus, are not subject to any additional significant or unique requirements by virtue of this action. Thus, the requirements of Section 203 of the UMRA also do not apply to today's rule.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rule making requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's action on small entities, a small entity is defined as: (1) A small business as specified in the Small Business Administration regulations; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action does not impose any new requirements on small entities because small entities that own and/or operate underground storage tanks are already subject to the State underground storage tank requirements which the EPA is now approving. This action merely approves for the purpose of RCRA Section 9004 those existing State Requirements.

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. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in today's Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Office of Management and Budget has exempted this rule from the requirements of Executive Order 12866.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks,” applies to any rule that: (1) The Office of Management and Budget determines is “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that the EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it approves a State program.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by Tribal Officials in the development of regulatory policies that have Tribal implications.” “Policies that have Tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and the Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.”

This rule does not have Tribal implications. It will not have substantial direct effects on Tribal Governments, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes, as specified in Executive Order 13175. Minnesota is not approved to implement the RCRA Underground Storage Tank Program in Indian Country. This action has no effect on the Underground Storage Tank Program that the EPA implements in the Indian Country within the State. Thus, Executive Order 13175 does not apply to this rule.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and Local Officials in the development of regulatory policies that have Federalism implications.” “Policies that have Federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of Government.”

Under Section 6 of Executive Order 13132, the EPA may not issue a regulation that has Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and Local Governments, or EPA consults with State and Local Officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has Federalism implications and that preempts State law unless the Agency consults with State and Local Officials early in the process of developing the proposed regulation.

This action does not have Federalism implications. It 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, because it affects only one State. This action simply provides the EPA approval of Minnesota's voluntary proposal for its State Underground Storage Tank Program to operate in lieu of the Federal Underground Storage Tank Program in that State. Thus, the requirements of Section 6 of the Executive Order do not apply.

As noted in the proposed rule, Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, § 12(d) (15 U.S.C. 272) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, the EPA did not consider the use of any voluntary consensus standards.

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , Federal agencies must consider the paperwork burden imposed by any information request contained in a proposed rule or a final rule. This rule will not impose any information requirements upon the regulated community.

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 Fed. Reg. 28355 (May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

EPA-New England is publishing this direct final notice of deletion of the Ft-Devens Sudbury Training Annex Superfund Site from the NPL.

The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in § 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for remedial actions if conditions at a deleted site warrant such action.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective January 29, 2002 unless EPA receives adverse comments by December 31, 2001 on this notice or the parallel notice of intent to delete published in the Proposed Rules section of today's Federal Register . If adverse comments are received within the 30-day public comment period on this notice or the notice of intent to delete, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses the procedures that EPA is using for this action. Section IV discusses the Ft-Devens Sudbury Training Annex Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the site from the NPL unless adverse comments are received during the public comment period.

Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete a release from the NPL, EPA shall consider, in consultation with the State, whether any of the following criteria has been met:

(i) Responsible parties or other persons have implemented all appropriate response actions required;

(ii) All appropriate Fund-financed (Hazardous Substance Superfund Response Trust Fund) response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

(iii) The remedial investigation (RI) has shown that the release poses no significant threat to public health or the environment and, therefore, taking of remedial measures is not appropriate.

Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the deleted site above levels that allow for unlimited use and unrestricted exposure, CERCLA section 121(c), 42 U.S.C. 9621(c) requires that a subsequent review of the site will be conducted at least every five years after the initiation of the remedial action at the deleted site to ensure that the action remains protective of public health and the environment. In the case of this Site, a five-year review is necessary since all hazardous substances, pollutants and contaminants have not been removed from the Site. If new information becomes available which indicates a need for further action, EPA may initiate remedial actions. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without the application of the hazard ranking system.

In the case of the Ft. Devens Sudbury Training Annex, the selected remedies are protective of human health and the environment. The Army will maintain the landfill cover and will perform long- term groundwater monitoring. The first five-year review was conducted by EPA, the Commonwealth of Massachusetts Department of Environmental Protection, and the Army this year (2001). Copies are located at the Repository previously noted. The remedies were deemed protective. Reviews will be conducted every five years hereafter.

The following procedures apply to deletion of the Site:

(1) The EPA consulted with the Commonwealth of Massachusetts on the deletion of the Site from the NPL prior to developing this direct final notice of deletion.

(2) The Commonwealth of Massachusetts concurred with the deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final notice of deletion, a notice of the availability of the parallel notice of intent to delete published today in the Proposed Rules section of the Federal Register is being published in a major local newspaper of general circulation at or near the Site and is being distributed to appropriate federal, state and local government officials and other interested parties; the newspaper notice announces the 30-day public comment period concerning the notice of intent to delete the Site from the NPL.

(4) The EPA places copies of the documents supporting the deletion in the Site information repository identified above.

(5) If adverse comments are received within the 30-day public comment period on this action, EPA will publish a timely notice of withdrawal of this direct final notice of deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the Site from the NPL:

The Ft. Devens Sudbury Training Annex (Site) lies in Middlesex County, Massachusetts, 20 miles west of Boston, and occupies approximately 2,300 acres within the towns of Hudson, Stow, Maynard, and Sudbury. The combined population of these four towns is approximately 50,000. The remaining area of contamination (A7) is located on the northern boundary of the Annex, adjacent to the Assabet River and within the boundaries of the town of Stow. Where developed land is adjacent to the Annex, it is residential. Green Meadow elementary school is approximately 1,000 feet northeast of the Annex boundary and Maynard High School 2,000 feet northeast.

The Site was established as an Army ammunition storage point during WW II and since then has been used for ordnance research and development, materials research, and troop training. Research and development stopped in 1982 and there has been no training allowed since 1992. The Army stored PCB transformers from at least 1982 to 1985 at the Site. In 1985, a transformer was found to have been leaking due to a bullet hole. An estimated 100 to 200 gallons of PCB oil were released onto the ground. In 1986 the Army released the first remedial investigation focusing on 11 other areas of concern across the Site. The Site was placed on the EPA National Priorities List (NPL) as a Superfund Site in 1990 due to the known releases and in May 1991 the Army signed an Interagency Agreement with the EPA stipulating that site investigations (SI) and cleanup actions would follow CERCLA/Superfund Amendments and Reauthorization Act (SARA), under the regulatory guidance of the National Contingency Plan (NCP) 40 CFR part 300. A Technical Review Committee (TRC) was formed at this time also to, in part, provide a forum for discussion of citizens' concerns.

In 1995 the Site was placed on the Base Realignment and Closure (BRAC 95) list. The Site is planned to be transferred in three parts to (1) the United States Fish and Wildlife Service (F&WS) (2,205.2 acres), (completed), (2) U.S. Air Force (AF) (4.148 acres) (under negotiation), and (3) the Federal Emergency Management Agency (FEMA) (71.525 acres) (under negotiation). Puffer Pond (approximately 24 acres), which is defined by Massachusetts law to be a Great Pond (i.e., a natural pond with an area of 20 acres or more), is owned by the Commonwealth of Massachusetts and wholly located within property transferred to United States Fish and Wildlife Service.

The Site consists of five operable units (OU):

OU1-A7, the Old Gravel Pit Landfill, is about 2 acres in extent within a fenced area of 10 acres. It was used as a dump for general refuse, demolition debris, and chemical lab waste disposal. The lab waste area was limited to a pit of about 5,000 sq. ft. General refuse was reportedly buried at shallow depths since 1941, with occasional burning to reduce volume. A7 was also used by the public for unauthorized surface dumping during the 1970's, until access was restricted. This landfill was capped in 1997.

OU2-A9, the Petroleum, Oil and Lubricants (POL) Burn Area, was used from the 1950's to the 1980's for testing flame-retardant clothing and by the Massachusetts Fire Fighting Academy (MFFA). During the fire training two unlined trenches were filled with water, topped off with fuel oil and ignited. In 1988 approximately 1,100 yards of contaminated soil were excavated and removed from these training trenches and transported to a hazardous waste facility. An underground storage tank was also removed from this area.

OU3-A4, Waste Dump, contains a surface dump and a building foundation dated to the late 1600's. The site reportedly was used for the burial of unidentified chemical wastes and drums over a three to four year period from the late 1960s to early 1970s.

OU4-P11 and P13, Building T405 Dump Area and Massachusetts Fire Fighting Academy (MFFA). P-11 and P-13 areas were used for ordnance research and development; laboratory research on foamed plastics, organic chemicals, flame testing, meteorological projects, insecticide and rodenticide research; and training of Massachusetts State Police, Massachusetts Air National Guard, Massachusetts Army National Guard, and MFFA.

OU5-P37, P36 and A12, Former Raytheon Building T-106, T104 underground storage tank (UST) Area, and poly-chlorinated bi-phenyl (PCB) Transformer Remediation Area (in between the two buildings). T104 was used for research and development of missile guidance and radar systems and as a staging area for PCB transformers from at least 1982 to 1985. T106 was used for the assembly of electronic equipment. In 1988, two 1,000 gallon heating oil USTs were removed from near the two buildings. At A-12, in 1985, a transformer was found to have been leaking due to a bullet hole. An estimated 100 to 200 gallons of PCB oil were released onto the ground. By the time the removal action was completed, over 175 tons of contaminated soils were removed.

Remedial Investigations of these areas of concern were conducted in 1992 and 1993 and found the contamination at A7 in surface and subsurface soils, groundwater, surface water, and sediment. Contamination occurs in three distinct areas: the solid waste disposal area covering the central and eastern portion with hot spots of metals and organochloric pesticides; the laboratory waste disposal pit in the west-central portion containing pesticides, chlorinated solvents, and unknown lab waste hazards; and groundwater contamination.

At A9, after early soil removal actions, contamination was still found in the surface and subsurface soils and in the groundwater. Metals were found above Massachusetts standards in surface and subsurface soils. In groundwater, chlorinated and non-chlorinated volatile organics, PAHs, and semi-volatile organics were found to exceed federal Maximum Contaminant Levels (MCLs) or Massachusetts standards.

Human Health Risks for both A7 and A9 were evaluated for current use and for future use. The future use included a residential scenario, which is the most conservative assessment for human health. Risks at both A7 and A9 were unacceptably high under the residential conditions and therefore remediation was required for the surface and subsurface soils. An ecological risk assessment for the two areas concluded that the level of contamination would not be likely to adversely affect terrestrial or aquatic wildlife.

The focused FS evaluated a presumptive containment remedy for the landfill and an additional soil removal for A-9.

A7 and A9 were divided into two remedial action operable units. The first Operable Unit (OU) was a source control OU. Lab waste and its contaminated soil was excavated and transported off-Site to a licensed hazardous waste facility. Solid waste and contaminated soil from A7 and A9 was used as subgrade as part of the construction of the Resource Conservation and Recovery Act (RCRA) Subtitle C multi-layer landfill cap at A7. The ROD required the Army to cover the landfill and to perform landfill cap operation and maintenance (O&M), groundwater and landfill gas monitoring, and to conduct 5 year reviews of the Site.

The second Operable Unit was a management of migration OU groundwater investigation for A7 and A9. Groundwater contamination at A-9 was found to be attenuating and no unacceptable human health or ecological risk was found. However, this No Further Action ROD included the commitment to long term monitoring in groundwater at A7 as required by the Final Operations & Maintenance Plan dated 1997 (semi-annual for VOCs, pesticides, & metals) as part of the remedy included in the Source Control ROD of 1995 for OU 1 and OU2.

Site investigation and remedial investigation (SI/RI) activities were performed in 1992 and 1993. Field work and laboratory analysis of additional samples to further characterize the areas of concern were performed in 1996. Low levels of contamination were found in all media after removal actions were performed at some areas, however, no groundwater plumes were found. None of the areas of concern in OUs 3, 4, or 5 posed unacceptable risks to human health or the environment. No Action RODs were signed for each of the OUs in 1996 and 1997.

In 1995 a Record of Decision (ROD) documented the remedial action for the

Source Control OU.

The major components include:

• Excavation and off-Site treatment and disposal of laboratory waste at A7;

• Excavation of contaminated soil from A9 and consolidation at A7;

• Consolidation of contaminated soil and solid waste at A7 to within the limits of the landfill cap;

• Construction of a Resource Conservation and Recovery Act (RCRA) Subtitle C landfill cap at A7;

• Environmental monitoring and operation and maintenance (O&M) at A7; Institutional controls at A7 to limit future use and to restrict access and required five-year reviews at A7.

In 1997 the Record of Decision for No Action Under CERCLA for A4 and the Management of Migration OU at A7 and A9 was signed. This ROD included the commitment to long term monitoring as required by the Final Operations & Maintenance Plan 1997 (semi-annual for VOCs, pesticides & metals) of groundwater at A7 as part of the remedy included in the Source Control ROD of 1995 for OU1 and OU2. Groundwater contamination at A-9 was found to be attenuating. No unacceptable human health or ecological risk was found.

The only Remedial Action (RA) at the Site (capping at OU1) began on July 31, 1996 and ended on October 27, 1997. RA cleanup activities at the Site were consistent with the NCP, the ROD, and were protective of human health and the environment. Remedial Design/Remedial Action (RD/RA) plans for all phases of construction included a Quality Assurance Project Plan (QAPP) and incorporated all EPA and State quality assurance and quality control procedures and protocols during the RA. EPA analytical methods were used for the confirmatory and monitoring samples taken during all RA activities. EPA determined, in October 1997, that the analytical results were accurate to the degree necessary to assure satisfactory execution of the RA. The results showed that the cleanup standards were met and were consistent with the ROD and the remedial design plans and specifications.

The Army is responsible for conducting long-term maintenance and upkeep of the landfill cover and for monitoring landfill gas, and groundwater in accordance with the approved Long-Term Operation, Maintenance, and Monitoring Plan.

CERCLA requires a five-year review of all sites with hazardous substances remaining above the health-based levels for unrestricted use of the site. Since the containment of hazardous materials within the landfill, the five-year review process will be used to ensure that human health and the environment remain protected in the future. The first five-year review was performed in 2001 by the Army. EPA concurred with the Army's assessment that the remedies remain protective of human health and the environment. For future five-year reviews, EPA will review the Army's annual reports and consolidated five-year review on the operation and maintenance of A7, and perform a five-year review inspection. The Army will provide the next five-year review prior to July 8, 2006.

Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion from the NPL are available to the public in the information repository noted above.

Quarterly, informal public meetings were held in the surrounding towns from 1991 to December 2000 and prior to and after each remedial action. Representatives from EPA, MADEP, and the Army with their consultants and contractors were present. These meetings proved to be extremely helpful in providing the public, especially the residents of adjoining neighborhoods, with important information regarding activities associated with all the investigations and each remedial action. These meetings were also particularly useful for the agencies and the Army in hearing and addressing the residents' concerns regarding on-site activities. The Army plans to continue these informal meetings to announce the findings of five-year reviews. The most recent meeting was held on November 14, 2001.

The EPA, with concurrence from the Commonwealth of Massachusetts, has determined that all appropriate responses under CERCLA have been completed, and that no further response actions under CERCLA are necessary. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will become effective January 29, 2002 unless EPA receives adverse comments by December 31, 2001. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and it will not take effect. EPA will prepare a response to comments, as approriate, and continue with the traditional deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment. If EPA receives no adverse comment(s), this deletion will become effective January 29, 2002.

The Federal Communications Commission has received OMB approval for the following public information collection pursuant to the Paperwork Reduction Act of 1995, Public Law 96-511. The rules adopted in this proceeding ( see 66 FR 55618, November 2, 2001) are therefore effective with the publication of this announcement in the Federal Register . An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. Notwithstanding any other provisions of law, no person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Questions concerning the OMB control numbers and expiration dates should be directed to Judy Boley, Federal Communications Commission (202) 418-0214.

OMB Control No.: 3060-0813.

Expiration Date: 5/31/02.

Title: Revision of the Commission's Rules to Ensure Compatibility with Enhanced 911 Calling Systems.

Form No.: N/A.

Estimated Annual Burden: 198,200 burden hours annually; 1 hour per response; 42,324 respondents.

Description: The demonstration of E911 capability will be required only when a requesting PSAP's E911 capability is challenged by the wireless carrier, and will be used by the carrier to verify that the requesting PSAP is in reality capable of receiving and using E911 data and that the carrier must therefore provide E911 service.

This is a summary of the Commission's Second Report and Order and Further Notice of Proposed Rulemaking in CC Docket Nos. 00-256, Fifteenth Report and Order in CC Docket No. 96-45, and Report and Order in CC Docket No. 98-77 and 98-166 released on November 8, 2001. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 Twelfth Street, SW., Washington, DC, 20554 or at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-01-304A1.doc .

1. In the Order, we take the following actions to reform the interstate access charge and universal service support system for rate-of-return carriers:

• We increase Subscriber Line Charge (SLC) caps for rate-of-return carriers to the levels established for price cap carriers. The residential and single-line business SLC cap will increase to $5.00 on January 1, 2002, and may increase up to $6.00 on July 1, 2002, and $6.50 on July 1, 2003, subject to a cost review study for the SLC caps of price cap carriers. The multi-line business SLC cap will increase to $9.20 on January 1, 2002. The revised SLC caps, which conform to those already implemented for most subscribers nationwide, will foster efficient competition and greater choice for consumers, while ensuring that SLC rates in rural areas remain affordable and reasonably comparable to those in urban areas. Lifeline support will be increased in an amount equal to any SLC rate increases for low-income subscribers.

• We modify our rules to allow limited SLC deaveraging, which will enhance the competitiveness of rate-of-return carriers by giving them important pricing flexibility. The SLC deaveraging method we adopt combines the safeguards adopted for price cap carriers with the flexibility of the Rural Task Force universal service support disaggregation scheme, in order to address the significant diversity among rate-of-return carriers.

• We find that the Carrier Common Line (CCL) charge, an inefficient cost recovery mechanism and implicit subsidy, should be removed from the common line rate structure. This measure will rationalize the access rate structure and move per-minute switched access rates towards lower, cost-based levels. To replace the CCL charge, a new universal service support mechanism will be implemented beginning on July 1, 2002. The CCL charge will be eliminated as of July 1, 2003, when SLC caps are scheduled to reach their maximum levels.

• We adopt measures to reform the local switching and transport rate structure. In particular, we shift the non-traffic sensitive costs of local switch line ports to the common line category, and reallocate the remaining costs contained in the Transport Interconnection Charge (TIC) to other access rate elements. These measures align the rate structure more closely with the manner in which costs are incurred and reduce per-minute switched access charges.

• We do not adopt proposals to prescribe a single, target rate for per-minute charges, either on an optional or a mandatory basis. The reforms that we adopt in this Order will reduce per-minute charges for all rate-of-return carriers, while giving them the flexibility to establish rates based on their own costs in the areas they serve.

• We address proposals to modify the rate structure for general support facilities (GSF) costs, marketing expenses, and special access services. We generally conclude that a different approach is warranted from that adopted for price cap carriers to avoid imposing undue administrative burdens on small local telephone companies serving rural and high-cost areas.

• We create a new universal service support mechanism, Interstate Common Line Support, to convert implicit support in the access rate structure to explicit support that is available to all eligible telecommunications carriers. Interstate Common Line Support will recover any shortfall between the allowed common line revenues of rate-of-return carriers and their SLC revenues, thereby replacing the CCL charge. The new support mechanism will ensure that changes in the rate structure do not affect the overall recovery of interstate access costs by rate-of-return carriers serving high-cost areas.

• We do not adopt MAG proposals to impose new requirements on interexchange carriers regarding optional calling plans, minimum monthly fees, and pass-through of savings from lower access rates. Among other things, we conclude that these requirements are unnecessary, inconsistent with our deregulatory approach to the interexchange services market, and would entail undue administrative costs and burdens.

• We streamline the rules for the introduction of new switched access services by extending to rate-of-return carriers the same flexibility that price cap carriers now have, with the exception of certain cost support and notice requirements.

• We terminate the proceeding in CC Docket No. 98-166 for prescription of the authorized rate of return, which was set at 11.25 percent in 1990.

2. This is a permit but disclose rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided that they are disclosed as provided in the Commission's rules.

3. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the MAG NPRM (66 FR 7725, January 25, 2001). An IRFA also was incorporated into the 1998 NPRM (63 FR 38774, July 20, 1998), in CC Docket No. 98-77. The Commission sought written public comment on the proposals in the 1998 NPRM and on the MAG plan, including comment on the IRFAs. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA, as amended. To the extent that any statement in this FRFA is perceived as creating ambiguity with respect to our rules or statements made in the Order, the rules and statements set forth in the Order shall be controlling.

4. In the Order, the Commission modifies its interstate access charge and universal service support system for incumbent local exchange carriers (LECs) subject to rate-of-return regulation. Consistent with the mandate of the 1996 Act, this Order is designed to foster competition and efficient pricing in the market for interstate access services, and to create universal service mechanisms that will be secure in an increasingly competitive environment. By simultaneously removing implicit support from the rate structure and replacing it with explicit, portable support, this Order will provide a more equal footing for competitors in local and long distance markets, while ensuring that consumers in all areas of the country, especially those living in high-cost, rural areas, have access to telecommunications services at affordable and reasonably comparable rates. This Order also is tailored to the needs of small and mid-sized local telephone companies serving rural and high-cost areas, and will help provide certainty and stability for such carriers, encourage investment in rural America, and provide important consumer benefits.

5. Examination of the record in this proceeding demonstrates the need for interstate access charge and universal service reform for rate-of-return carriers. Rate-of-return carriers receive implicit support for universal service from various sources, including the interstate access rate structure. For example, recovery of non-traffic sensitive costs through per-minute rates creates an implicit support flow from high-to low-volume users of interstate long distance service. Implicit support is incompatible with a competitive market for local exchange and exchange access services. As the Commission noted in 1997, “where rates are significantly above cost, consumers may choose to bypass the incumbent LEC's switched access network, even if the LEC is the most efficient provider. Conversely, where rates are subsidized (as in the case of consumers in high-cost areas), rates will be set below cost and an otherwise efficient provider would have no incentive to enter the market.” Rate-of-return carriers have expressed particular concern that high per-minute charges may place them at a disadvantage in competing for high-volume customers, jeopardizing an important source of revenue. In addition, higher rates and implicit subsidies may discourage efficient local and long distance competition in rural areas and limit consumer choice. Although there may not be significant competition in many high-cost, rural areas, rate-of-return carriers are not insulated from competitive pressures.

6. By rationalizing the rate structure for recovery of interstate loop costs, this Order will foster competition for residential subscribers in rural areas by facilities-based carriers. By reducing per-minute switched access rates towards cost-based levels, it will enhance incentives for interexchange carriers to originate service in rural areas and facilitate long distance toll rate averaging. To a large extent, these modifications already have been implemented for the vast majority of subscribers nationwide.

7. At the same time, this Order is tailored to the specific challenges faced by small carriers serving rural and high-cost areas. Although per-minute switched access charges will be reduced for all rate-of-return carriers, they will retain the flexibility to establish rates based on their own costs in the areas they serve, rather than being forced to conform to a prescribed target rate. Rate-of-return carriers will continue to be permitted to set rates based on the authorized rate of return of 11.25 percent. And a new, uncapped universal service support mechanism will provide certainty and stability by ensuring that the rate structure modifications adopted do not affect overall recovery of interstate access costs by rate-of-return carriers. The Order adopts a cautious approach which rationalizes the access rate structure and converts identifiable implicit subsidies to explicit support, without endangering this important revenue stream for rate-of-return carriers.

8. The Multi-Association Group (MAG), which is comprised of the National Rural Telecom Association, National Telephone Cooperative Association, Organization for the Promotion and Advancement of Small Telecommunications Companies, and the United States Telecom Association, argued that adoption of its comprehensive proposal for regulatory reform for rate-of-return carriers would benefit small business entities, including small incumbent LECs, interexchange carriers, and new entrants. According to the MAG, its plan would permit small rate-of-return carriers to control their administrative and regulatory burdens by permitting them to analyze and select the type of regulation that best suits their situation. The MAG also asserted that of a modified version of its plan would introduce more uncertainty for small carriers, but it did not provide support for this assertion. However, commenters have raised significant concerns about certain features of the MAG plan, and the Commission was persuaded that some of these concerns have merit, as discussed below.

9. The Commission received a Congressional inquiry from Congressman John D. Dingell, asking that the Commission devote significant staff resources to the MAG proceeding, in particular, and to understanding the unique challenges of service in high-cost areas, in general. The Chairman responded to Congressman Dingell by letter, noting that the Commission has taken numerous measures to lessen the regulatory burdens of small local telephone companies, and is committed to continuing the examination of our rules and processes to ensure that small local telephone companies are provided with appropriate regulatory flexibility. The response also stated that the Commission has attempted to scrutinize carefully the potential impact of proposed regulations on small incumbent telephone companies.

10. The Commission received a Congressional inquiry from Senators Thomas A. Daschle, Craig Thomas, Blanche Lambert Lincoln, Tim Johnson, Tom Harkin, Charles E. Grassley, Byron L. Dorgan, Kent Conrad, and Max S. Baucus, noting that significant legal and market changes had occurred since the MAG plan was developed, including two court decisions regarding universal service. The letter requested that the Commission delay its final decision in the MAG proceeding until all interested parties, including members of Congress, have had an opportunity to comment on any new proposal that the Commission might consider. The Chairman responded to this inquiry by letter, stating that it is the Commission's duty, pursuant to the Administrative Procedures Act, to consider the extensive input received from all interested parties regarding the MAG proposal. The Chairman's response noted that all interested parties have had a substantial opportunity to comment on the MAG plan and on other, related Commission proposals that build on prior reforms for large carriers. The response stated that it was important to proceed expeditiously with access charge and universal service reform for rate-of-return carriers, while continuing to explore other issues raised by the MAG proposal. The Chairman's response noted that a substantial number of interested parties had raised concerns about the wholesale adoption of the MAG proposal and had suggested possible modifications to it. The response also agreed that it is important that the Commission take into account recent court decisions relevant to interpretation of the universal service provisions of the Act.

11. The Commission also received Congressional inquiries from Senator Conrad Burns and Congressman Dennis Rehberg, Congressman Douglas K. Bereuter, Congressman John E. Sununu, and Congressman Lee Terry regarding the Commission's consideration of interstate access charge and universal service reform for rate-of-return carriers. They generally expressed concerns about the potential impact of reform on rural telecommunications customers and the companies that serve them, and urged the Commission to seek additional comment before adopting measures other than those proposed in the MAG plan.

12. The Commission believes that it is important to proceed expeditiously with access charge and universal service reform for rate-of-return carriers, while continuing to explore other issues raised by the MAG proposal. The Commission has adopted a cautious approach to reform. The new, uncapped support mechanism it creates will ensure that rate structure changes do not affect small carriers' overall recovery of the costs of interstate access service. In addition, the Order permits carriers to continue to set rates based on the authorized rate of return of 11.25 percent. These measures will promote regulatory stability and encourage investment in rural America. The Commission also is seeking additional comment on a number of issues, including the potential impact of modifications to Long Term Support on membership in the pools, the MAG's incentive regulation proposal for small carriers, and on other means of providing opportunities for rural telephone companies to increase their cost efficiency in ways that will benefit carriers and the communities they serve.

13. The Commission also received general comments related to the needs of small local telephone companies. Examination of the record indicates that rate-of-return carriers are typically small, rural telephone companies concentrated in one area. They generally have higher operating and equipment costs than large, price cap carriers due to lower subscriber density, smaller exchanges, and limited economies of scale. They also rely more heavily on revenues from interstate access charges and universal service support. Numerous commenters argued that, although such carriers may incur costs in the same manner as large carriers, their size, diversity, and regulatory history warrant special consideration in adopting interstate access charge and universal service reforms. The Commission's actions in response to such concerns are discussed in detail below. As an example, the Commission does not require small carriers to conduct cost studies to determine the portion of local switching costs attributable to line ports. Rather, we adopt a proxy of 30 percent.

14. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines “small entity” as having the same meaning as the term “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act, unless the Commission has developed one or more definitions that are appropriate to its activities. Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the SBA.

15. We have included small incumbent carriers in this RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent carriers are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent carriers in this RFA analysis, although we emphasize that this RFA action has no effect on the Commission's analyses and determinations in other, non-RFA contexts.

16. Local Exchange Carriers. Neither the Commission nor the SBA has developed a specific definition for small providers of local exchange services. The closest applicable definition under the SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. According to the most recent Trends in Telephone Service data, 1,335 incumbent carriers reported that they were engaged in the provision of local exchange services. We do not have data specifying the number of these carriers that are either dominant in their field of operations, are not independently owned and operated, or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of local exchange carriers that would qualify as small business concerns under the SBA's definition. Of this number, 13 entities are price cap carriers not subject to rules adopted herein. Consequently, we estimate that 1,335 or fewer providers of local exchange service are small entities that may be affected by the rules.

17. Competitive Local Exchange Carriers. Neither the Commission nor the SBA has developed a specific definition of small providers of local exchange service. The closest applicable definition under SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. According to the Commission's Trends in Telephone Service data, 349 companies reported that they were engaged in the provision of either competitive access provider services or competitive LEC services. The Commission does not have data specifying the number of these carriers that are either dominant in their field of operations, are not independently owned and operated, or have more than 1,500 employees, and thus is unable at this time to estimate with greater precision the number of competitive LECs that would qualify as small business concerns under the SBA's definition. Consequently, the Commission estimates that fewer than 349 providers of local exchange service are small entities that may be affected by the rules.

18. Interexchange Carriers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to providers of interexchange services. The closest applicable definition under the SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. According to the most recent Trends in Telephone Service data, 204 carriers reported that their primary telecommunications service activity was the provision of interexchange services. We do not have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of IXCs that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 204 or fewer small entity IXCs that may be affected by the rules.

19. Competitive Access Providers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to competitive access services providers (CAPs). The closest applicable definition under the SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. According to the most recent Trends in Telephone Service data, 349 CAPs/competitive local exchange carriers and 60 other local exchange carriers reported that they were engaged in the provision of competitive local exchange services. We do not have data specifying the number of these carriers that are not independently owned and operated, or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of CAPs that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 349 or fewer small entity CAPs and 60 or fewer other local exchange carriers that may be affected.

20. Wireless Telephony. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to wireless telephony including cellular, personal communications service (PCS) and Specialized Mobile Radio (SMR) telephony carriers. Therefore, the applicable definition of small entity is the definition under the SBA rules applicable to radiotelephone (wireless) companies. This provides that a small entity is a radiotelephone company employing no more than 1,500 persons. According to the most recent Trends in Telephone Report data, 806 carriers reported that they were engaged in the provision of either cellular service, PCS services, or SMR services, which are placed together in the data. Of these 806 carriers, 323 reported that they have 1,500 or fewer employees. We do not have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of wireless telephone carriers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 806 or fewer small wireless telephony service carriers that may be affected.

21. The broadband PCS spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years. For Block F, an additional classification for “very small business” was added and is defined as an entity that, together with their affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These regulations defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. No small businesses within the SBA-approved definition bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. Based on this information, we conclude that the number of small broadband PCS licensees will include the 90 winning C Block bidders and the 93 qualifying bidders in the D, E, and F blocks, for a total of 183 small entity PCS providers as defined by the SBA and the Commission's auction rules.

22. The Commission awards bidding credits in auctions for geographic area 800 MHz and 900 MHz SMR licenses to firms that had revenues of no more than $15 million in each of the three previous calendar years. In the context of both the 800 MHz and 900 MHz SMR, a definition of “small entity” has been approved by the SBA. These fees apply to SMR providers in the 800 MHz and 900 MHz bands that either hold geographic area licenses or have obtained extended implementation authorizations. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million.

23. Rural Radiotelephone Service. The Commission has not adopted a definition of small entity specific to the Rural Radiotelephone Service. A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio Systems (BETRS). We will use the SBA's definition applicable to radiotelephone companies, i.e., an entity employing no more than 1,500 persons. There are approximately 1,000 licensees in the Rural Radiotelephone Service, and we estimate that almost all of them qualify as small entities under the SBA's definition.

24. Fixed Microwave Services. Microwave services include common carrier, private-operational fixed, and broadcast auxiliary radio services. At present, there are approximately 22,015 common carrier fixed licensees and 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not defined a small business specifically with respect to microwave services. For purposes of this FRFA, we utilize the SBA's definition applicable to radiotelephone companies— i.e. , an entity with no more than 1,500 persons. We estimate, for this purpose, that all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition for radiotelephone companies.

25. 39 GHz Licensees. The Commission defined “small entity” for 39 GHz licenses as an entity that has average gross revenues of less than $40 million in the three previous calendar years. An additional classification for “very small business” was added and is defined as an entity that, together with their affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These regulations defining “small entity” in the context of 39 GHz auctions have been approved by the SBA. The auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed on May 8, 2000. The 18 bidders who claimed small business status won 849 licenses.

26. Pursuant to the Order, all rate-of-return carriers will be required to modify their access tariffs to comply with the new SLC caps, to become effective on January 1, 2002, and on July 1, 2002, and July 1, 2003, subject to a cost review proceeding for the SLC caps of price cap carriers. This function would be performed by the National Exchange Carrier Association (NECA) for those carriers that participate in the NECA common line pool, as most small carriers do. Those rate-of-return carriers filing their own tariffs also would have to make a tariff filing to reflect the access charge modifications.

27. The CCL charge will be removed from the common line rate structure of rate-of-return carriers as of July 1, 2003. From July 1, 2002 to June 30, 2003, rate-of-return carriers may impose a transitional CCL charge on all switched access minutes to recover, for each residential and single-line business line in their study area, the difference between the residential SLC and the lesser of $6.50 or their average cost per line.

28. All rate-of-return carriers will be required to modify their access tariffs by reallocating line port costs from local switching to the common line category. To ease the burden of implementing this rate structure modification on small rate-of-return carriers, we will permit them to shift 30 percent of their local switching costs to the common line category in lieu of conducting a cost study. Carriers electing this cost study approach must base their costs studies on geographically-averaged costs, and submit the cost study in support of the tariff filing relying on the cost study. Once a rate-of-return carrier has performed a cost study to support its tariff, it may rely on that cost study for subsequent tariff filings.

29. We require rate-of-return carriers to recover through a separate end-user charge the costs of ISDN line ports and line ports associated with other services that exceed the costs of a line port used for basic analog service.

30. We require rate-of-return carriers to reallocate the costs recovered from the transport interconnection charge (TIC) to all other access categories. NECA will be required to establish for carriers that participated in the NECA pool during the tariff year ending June 30, 2001, an individual carrier dollar limit based on its traffic volumes and the TIC rate for the twelve-month period ending June 30, 2001. Each carrier that was not in the pool during the tariff year ending on June 30, 2001, must determine its TIC limit and report it to NECA for purposes of administering future pool membership changes.

31. We permit, but do not require, rate-of-return carriers to establish the following local switching and transport rate elements: A flat charge for dedicated trunk port costs; a flat charge for the costs of DS1/voice grade multiplexers associated with terminating dedicated trunks at analog switches; a per-minute charge for shared trunk ports and any associated DS1/voice grade multiplexer costs; a flat charge for the costs of trunk ports used to terminate dedicated trunks on the serving wire center side of the tandem switch; individual charges for multiplexer costs associated with tandem switches; and a separate per-message call setup charge.

32. We require rate-of-return carriers that use general purpose computers to provide non-regulated billing and collection services to allocate a portion of their GSF costs to the billing and collection category. To accommodate the fact that rate-of-return carriers are not required to maintain separate land, buildings, office furniture, and general purpose computer investment accounts, we only require these carriers to apply the modified Big Three Expense Factor used by price cap carriers to the general purpose computer investment detail to determine the amount to be allocated to billing and collection. Carriers also may use the general purpose computer investment amount they develop for a period of three years. Carriers whose billing and collection activities are performed exclusively by service bureaus will not be subject to these requirements. Many small carriers use service bureaus exclusively to perform billing and collection services and, therefore, will not be affected by these requirements.

33. Rate-of-return carriers electing to disaggregate their Interstate Common Line Support must submit a detailed description of their disaggregation plan, including information that will enable competitors to verify and reproduce the algorithm used to determine zone support levels, and a geographic description and map of each such zone with the Commission, the relevant state regulatory agency, and USAC. This is not a new compliance requirement because carriers would have to file the above-stated materials in order to disaggregate other forms of high-cost support pursuant to the Rural Task Force Order (66 FR 30080, June 5, 2001).

34. Rate-of-return carriers seeking Interstate Common Line Support will be required to file on an annual basis their projected common line revenue requirement for each study area in which they operate. Average schedule companies will not be required to submit common line revenue requirements, but instead will be required to submit information that USAC determines is necessary in order for it to calculate common line revenue requirements for average schedule companies. To enable USAC to begin distributing Interstate Common Line Support to carriers on July 1, 2002, carriers will be required to submit projected common line revenue requirements for July 1, 2002, to June 30, 2003, by March 31, 2002. Carriers will be permitted to submit corrections to their projected common line revenue requirements until April 10, 2002. After April 10, 2002, any corrections to projected common line revenue requirements shall be made in the form of true-ups using actual cost data. Rate-of-return carriers will be required to submit projected common line revenue requirements for subsequent years on the same schedule.

35. To ensure that Interstate Common Line Support amounts reflect a carrier's actual common line costs, rate-of-return carriers will be required to update projected common line cost data with actual costs on an annual basis. Average schedule companies will not be required to calculate or submit their actual costs. Rate-of-return carriers also will be permitted to update their actual cost data on a quarterly basis.

36. Consistent with rules adopted in the Rural Task Force Order, rate-of-return carriers will file their line counts with USAC, by disaggregation zone and customer class, in accordance with the schedule in §§ 36.611 and 36.612 of our rules. Line count data for rural rate-of-return carrier study areas in which a competitive eligible telecommunications carrier has not begun providing service will be filed on an annual basis. Line count data will be filed on a regular quarterly basis upon competitive entry in rural rate-of-return carrier study areas. Non-rural rate-of-return carriers currently are required to file line count data on a quarterly basis regardless of whether a competitor is present and that requirement will not change. Competitive eligible telecommunications carriers will file their line counts with USAC, by disaggregation zone and customer class on a quarterly basis, in accordance with the schedule in § 54.307 of our rules.

37. Carriers seeking Interstate Common Line Support must file a certification with the Commission and USAC. These requirements will create additional reporting requirements, but such reporting is necessary to ensure compliance with section 254(e) of the Act.

38. We require all incumbent LECs, including rate-of-return carriers, to recover universal service contributions only through end user charges. Rate-of-return carriers that choose to impose end-user charges for the recovery of universal service contributions must make corresponding reductions in their access charges to avoid double recovery.

39. The Commission has taken numerous steps to minimize significant economic impact on small entities of the interstate access charge and universal service reforms adopted in this Order. Overall, the Commission's approach is tailored to the specific challenges faced by small local telephone companies serving rural and high-cost areas. Although per-minute switched access charges will be reduced for all rate-of-return carriers, these carriers will retain the flexibility to establish rates based on their own costs in the areas they serve, rather than being forced to conform to a prescribed target rate. Rate-of-return carriers will continue to be permitted to set rates based on the authorized rate of return of 11.25 percent. And the new, uncapped support mechanism created by this Order will provide certainty and stability by ensuring that the rate structure modifications we adopt do not affect overall recovery of interstate access costs. The Order adopts a cautious approach which rationalizes the access rate structure and converts identifiable implicit subsidies to explicit support, without endangering this important revenue stream for rate-of-return carriers.

40. The Commission also has taken steps to minimize the administrative burdens imposed on small carriers as a result of access charge and universal service reform. The Order does not create a separate non-primary residential line SLC cap. Instead, it applies the same SLC cap to primary and non-primary residential lines, concluding that this approach will simplify the common line rate structure and avoid the administrative costs associated with administering the distinction. The Order also provides that a separate cost showing to justify residential and single-line business SLC cap increases above $5.00 will not be required for rate-of-return carriers, concluding that such a requirement is unnecessary and would create undue administrative burdens. The Order provides that rate-of-return carriers may deaverage SLC rates in accordance with universal service support disaggregation plans established pursuant to the Rural Task Force Order, a measure which will minimize administrative burdens on small carriers, as well as confusion among competitive carriers, by ensuring that carriers do not have multiple overlapping zones within their services for universal service support and SLC rates, as well as providing the flexibility necessary to accommodate the diversity among small local telephone companies.

41. To ease the burden on small local telephone companies of reallocating line port costs from local switching to the common line category, carriers will be permitted to shift 30 percent of their local switching costs to the common line category in lieu of conducting a cost study. A carrier conducting a cost study may use the results in future tariff filings.

42. The Order permits, but does not require, rate-of-return carriers to establish a number of local switching and transport rate elements, concluding that these rate structure modifications should be optional to avoid undue administrative burdens on small rate-of-return carriers, and to allow carriers to make individual determinations as to whether the costs of establishing new rate elements are warranted by the potential efficiency gains.

43. To accommodate the fact that rate-of-return carriers are not required to maintain the account detail that provides separate land, buildings, office furniture, and general-purpose computer investment detail in order to implement the allocator adopted for price cap carriers for GSF costs, we only require them to apply the modified Big Three Expense Factor used by price cap carriers to general purpose computer investment to determine the amount to be allocated to the billing and collection category, thereby removing costs of non-regulated activities from the regulated rate base. We also permit rate-of-return carriers to use the general purpose computer investment amount they develop for a period of three years. This procedure recognizes the limitations of the accounting system and the administrative burdens of developing further disaggregated investment detail. Rate-of-return carriers whose billing and collection activities are performed exclusively by service bureaus will continue to allocate GSF pursuant to § 69.307(c) of our rules, which specifically addresses the situation in which rate-of-return carriers obtain all billing and collection services they provide to interexchange carriers from unregulated affiliates or from unaffiliated third parties.

44. The Order does not require rate-of-return carriers to recover marketing expenses through the common line recovery mechanisms, reasoning that determination of the costs to be reallocated would be more difficult for small carriers than for large, price cap carriers because small carriers are not required to keep more detailed Class A accounts, and that the costs in question represent only a small portion of rate-of-return carriers' interstate access revenues.

45. The Order generally adopts the same plan for disaggregation and targeting of Interstate Common Line Support as recently adopted for intrastate high-cost support for rural carriers, which will result in minimal additional administrative burdens for carriers that elect to disaggregate their support. Rate-of-return carriers choosing to disaggregate their Interstate Common Line Support must submit a detailed description of the disaggregation plan, including information that will enable competitors to verify and reproduce the algorithm used to determine zone support levels, and a geographic description and map of each such zone with the Commission, the relevant state regulatory agency, and USAC, as discussed further below. These geographic descriptions and zone maps are identical to the ones that carriers must submit pursuant to the requirements of the Rural Task Force Order, and thus create no additional reporting requirements.

46. The Order limits as much as possible the filing requirements associated with the new Interstate Common Line Support mechanism, generally requiring carriers to file the minimum amount of information necessary for the proper functioning of the mechanism. Consistent with their average schedule status, average schedule companies will not be required to submit common line revenues requirements, but instead will be required to submit information that USAC determines is necessary in order for it to calculate common line revenue requirements for average schedule companies. Additionally, rural rate-of-return carriers and their competitors are required to file line count data on a quarterly basis only upon competitive entry by an eligible telecommunications carrier. The data that will be filed is similar to data that small carriers already prepare and submit to NECA to enable them to develop rates and operate the common line pool, but differs in important respects. The Order permits small carriers to file quarterly “true ups” to enable carriers that experience unforeseen costs to file actual cost data and receive increased per-line amounts of Interstate Common Line Support. The true-up option allows carriers to avoid over-or under-payment and to obtain the correct level of support for their particular revenue requirements.

47. The Order streamlines the part 69 waiver requirement for introduction of new services by rate-of-return carriers, concluding that streamlined filing requirements will eliminate unnecessary administrative burdens on small carriers.

48. The Commission considered a number of significant alternatives in this proceeding. The Commission sought comment on the MAG plan, a comprehensive proposal addressing numerous issues facing rate-of-return carriers, including access charge reform and universal service support, on January 5, 2001, stating its intention to fully and expeditiously consider the MAG plan. Based on the significant concerns about features of the MAG plan raised by commenters, the Commission has determined that adoption of the plan in its entirety would not benefit consumers or service the public interest. For example, the Commission determined that the MAG's proposals that certain access charge reforms be optional, and that only those carriers electing the MAG incentive regulation proposal be eligible for new, explicit universal service support to replace implicit support in access charges, are inconsistent with the mandate of the 1996 Act and could preclude many small carriers from fully participating in interstate access charge reform, leading to increased access rate disparities among local telephone companies that is not in the public interest.

49. The Commission also has considered proposals for adoption of a target rate for the per-minute access charges of rate-of-return carriers, either on an optional or a mandatory basis. The Commission rejects these proposals and concludes that none of these proposals is supported by cost data and that the non-prescriptive, market-based approach to access charge reform adopted in the Order is more consistent with the competitive and universal service goals of the 1996 Act. The comments filed in this proceeding indicate a wide variation in cost patterns, density, and other operational characteristics among rate-of-return carriers. The access charge reform approach adopted in this Order accommodates this diversity by reallocating costs and removing implicit support to create more efficient rate structures, while allowing carriers to establish rates based on their own costs.

50. The Commission also considered and rejected proposals by some commenters for the establishment of a presubscribed interexchange carrier charge, or PICC, a flat, monthly charge assessed on the interexchange carrier with which an end user is presubscribed, for rate-of-return carriers in lieu of raising SLCs for rate-of-return carriers and/or removing the CCL charge from the common line rate structure. The Commission concludes that a PICC should not be introduced into the common line rate structure of rate-of-return carriers. Establishment of a PICC would force interexchange carriers to recover the cost of the PICC from all of their customers, and contribute to rate disparities between the two groups of carriers, thereby increasing the burden on interexchange carriers of compliance with the geographic rate averaging and rate integration requirements of section 254(g).

51. The Commission also considered and rejected the imposition of a cap on the explicit interstate support mechanism established in this Order, concluding that a cap is not appropriate under the circumstances. Many rate-of-return carriers are small, rural carriers that serve high-cost regions. Small carriers generally are more dependent on their interstate access charge revenue streams and universal service support than large carriers and, therefore, more sensitive to disruption of those streams. The absence of a cap will ensure that the rate structure modifications adopted in this Order do not affect the overall recovery of interstate loop costs by small carriers.

52. The Commission will send a copy of this Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of this Order, including this FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of this Order and FRFA (or summaries thereof) will also be published in the Federal Register .

53. The action contained herein has been analyzed with respect to the Paperwork Reduction Act of 1995 and found to impose new or modified reporting and recordkeeping requirements or burdens on the public. Implementation of these new or modified reporting and recordkeeping requirements will be subject to approval by the Office of Management and Budget (OMB) as prescribed by the Act, and will go into effect upon announcement in the Federal Register of OMB approval.

54. Accordingly, it is ordered that, pursuant to the authority contained in sections 1-4, 201-205, 214, 218-220, 254, 303(r), 403, 405, and 410 of the Communications Act of 1934, as amended, this Second Report and Order in CC Docket No. 00-256, Fifteenth Report and Order in CC Docket No. 96-45, and Report and Order in CC Docket Nos. 98-77 and 98-166 is adopted.

55. Part 54 and 69 of the Commission's rules, are amended as set forth, effective December 31, 2001, except for §§ 54.307(b), 54.307(c), 54.315(a), 54.315(f)(1) through 54.315(f)(4), 54.902(a), 54.902(b), 54.902(c), 54.903(a)(1) through 54.903(a)(4), 54.904(a), 54.904(b), and 54.904(d), which contain information collection requirements that have not been approved by the Office of Management Budget (OMB). The Commission will publish a document in the Federal Register announcing the effective date of those sections.

56. It is further ordered that § 65.101 of the Commission's rules is stayed.

57. It is further ordered that the Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

The pygmy rabbit ( Brachylagus idahoensis ) is a member of the family Leporidae, which includes hares and rabbits. The species has been placed in a number of genera since it was first described in 1891 (Washington Department of Fish and Wildlife (WDFW) 1995), when it was classified as Lepus idahoensis . In 1904, it was reclassified and placed in the genus Brachylagus , and in 1930, it was again reclassified and placed in the genus Sylvilagus (WDFW 1995). More recent examination of dentition (Hibbard 1963) and analysis of blood proteins (Johnson 1968) suggests that the pygmy rabbit differs significantly from species within either the Lepus or Sylvilagus genera. The pygmy rabbit is now generally considered to be within the monotypic genus Brachylagus, and again classified as B. idahoensis (Green and Flinders 1980a; WDFW 1995). There are no recognized subspecies of the pygmy rabbit (Dalquest 1948; Green and Flinders 1980a).

The pygmy rabbit is the smallest Leporid in North America, with mean adult weights from 375 to 462 grams (0.83 to 1.02 pounds), and lengths from 23.5 to 29.5 centimeters (cm) (9.3 to 11.6 inches (in)) (Orr 1940; Janson 1946; Wilde 1978; Gahr 1993; WDFW 1995). Females tend to be slightly larger than males. The overall color of pygmy rabbits is slate-gray tipped with brown. Their legs, chest, and nape are tawny cinnamon-brown, their bellies are whitish, and the entire edges of their ears are pale buff. Their ears are short (3.5 to 5.2 cm (1.4 to 2.0 in)), rounded, and thickly furred inside and out. Their tails are small (1.5 to 2.4 cm (0.6 to 0.9 in)), uniform in color, and nearly unnoticeable in the wild (Orr 1940; Janson 1946; WDFW 1995). The pygmy rabbit is distinguishable from other Leporids by its small size, short ears, gray color, small hind legs, and lack of white on the tail.

Pygmy rabbits typically are found in areas of tall, dense sagebrush ( Artemisia spp.) cover, and are highly dependent on sagebrush to provide both food and shelter throughout the year (Orr 1940; Green and Flinders 1980a; WDFW 1995). The winter diet of pygmy rabbits is composed of up to 99 percent sagebrush (Wilde 1978), which is unique among Leporids (White et al. 1982). During spring and summer, their diet consists of roughly 51 percent sagebrush, 39 percent grasses (particularly native bunch-grasses, such as Agropyron spp. and Poa spp.), and 10 percent forbs (Green and Flinders 1980b). There is evidence that pygmy rabbits preferentially select native grasses as forage during this period in comparison to other available foods. In addition, total grass cover relative to forbs and shrubs may be reduced within pygmy rabbit colonies as a result of its use as a food source during spring and summer (Green and Flinders 1980b).

The pygmy rabbit is believed to be one of only two Leporids in North America that digs its own burrows (Nelson 1909; Green and Flinders 1980a; WDFW 1995), the other being the volcano rabbit ( Romerolagus diazi ) found in central Mexico (Durrell and Mallinson 1970). Pygmy rabbit burrows typically are found in relatively deep, loose soils of wind-borne ( i.e. , loess) or water-borne ( e.g. , alluvial fan) origin. Pygmy rabbits occasionally make use of burrows abandoned by other species, such as the yellow-bellied marmot ( Marmota flaviventris ) or badger ( Taxida taxus ) (Wilde 1978; Green and Flinders 1980a; WDFW 1995) and may occur in areas of shallower or more compact soils that support sufficient shrub cover (Bradfield 1974). During winter, pygmy rabbits make extensive use of snow burrows to access sagebrush forage (Bradfield 1974; Katzner and Parker 1997).

Pygmy rabbits, especially juveniles, likely use their burrows as protection from predators and inclement weather (Bailey 1936; Bradfield 1974). The burrows frequently have multiple entrances, some of which are concealed at the base of larger sagebrush plants (WDFW 1995). Burrows are relatively simple and shallow, often no more than 2 meters (m) (6.6 feet (ft)) in length and usually less than 1 m (3.3 ft) deep with no distinct chambers (Bradfield 1974; Green and Flinders 1980a; Gahr 1993). Burrows typically are dug into gentle slopes or mound/inter-mound areas of more level or dissected topography (Wilde 1978; Kehne 1991; Gahr 1993). In general, the number of active burrows in a colony increases over the summer as the number of juveniles increases. However, the number of active burrows may not be directly related to the number of individuals in a given colony because some individual pygmy rabbits appear to maintain multiple burrows, while some individual burrows are used by multiple individuals (Gahr 1993; WDFW 1995).

Pygmy rabbits begin breeding in their second year and, in Washington, breeding occurs from February through July (WDFW 1995). Females may have up to three litters per year and average six young per litter (Green 1978; Wilde 1978). Breeding appears to be highly synchronous in a colony, and juveniles are often identifiable to cohorts (Wilde 1978). No evidence of nests, nesting material, or lactating females with young has been found in burrows (Bradfield 1974; Gahr 1993; WDFW 1995). Individual juveniles have been found under clumps of sagebrush, although it is not known precisely where the young are born in the wild or if they may be routinely hidden at the bases of scattered shrubs or within burrows (Wilde 1978).

Recent information on captive pygmy rabbits indicates that females may excavate specialized “natal” burrows for their litters in the vicinity of their regular burrows (P. Swenson, Oregon Zoo, pers. comm., 2001; L. Shipley, Washington State University (WSU), pers. comm., 2001). Apparently, females begin to dig and supply nesting material ( e.g. , grass clippings) to these burrows several days prior to giving birth and may give birth and nurse their young at the ground surface in a small depression near the burrow's entrance. After nursing, the young return to the burrow and the female refills the burrow entrance with loose soil and otherwise disguises the immediate area to avoid detection. Other “dead-end” burrows that females construct nearby apparently are associated with the natal burrows. Females may also alter their defecation and latrine habits while pregnant and nursing (P. Swenson, pers. comm., 2001). Further work with captive and wild pygmy rabbits should shed additional light on the details of their reproductive strategy.

Pygmy rabbits may be active at any time of the day or night and appear to be most active during mid-morning (Bradfield 1974; Green and Flinders1980a; Gahr 1993). Pygmy rabbits maintain a low stance, have a deliberate gait, and are relatively slow and vulnerable in more open areas. They can evade predators by maneuvering through the dense shrub cover of their preferred habitats, often along established trails, or by escaping into their burrows (Bailey 1936; Severaid 1950; Bradfield 1974).

Pygmy rabbits tend to have relatively small home ranges during winter, remaining within roughly 30 m (98 ft) of their burrows (Orr 1940; Janson 1946; Gahr 1993; Katzner and Parker 1997), although some snow burrows may extend outward up to 100 m (328 ft) (Bradfield 1974). They have larger home ranges during spring and summer (Orr 1940; Janson 1946; Gahr 1993; Katzner and Parker 1997). During the breeding season in Washington, females tend to make relatively short movements within a small core area and have home ranges covering roughly 2.7 hectares (ha) (6.7 acres (ac)); males tend to make longer movements, traveling among a number of females, resulting in home ranges covering roughly 20.2 ha (49.9 ac) (Gahr 1993). These home range estimates in Washington are considerably larger than for pygmy rabbit populations in other areas of their historic range (WDFW 1995; Katzner and Parker 1997). Pygmy rabbits may travel up to 1.2 kilometers (km) (0.75 miles (mi)) from their burrows (Gahr 1993), and there are a few records of apparently dispersing individuals moving up to 3.5 km (2.17 mi) (Green and Flinders 1979; Katzner and Parker 1998).

The annual mortality rate of adult pygmy rabbits may be as high as 88 percent, while over 50 percent of juveniles apparently die within roughly 5 weeks of their emergence (Wilde 1978; WDFW 1995). However, the mortality rates of adult and juvenile pygmy rabbits can vary considerably between years, and even between juvenile cohorts within years (Wilde 1978). Predation is the main cause of pygmy rabbit mortality (Green 1979). Potential predators include badgers ( Taxidea taxus ), long-tailed weasels ( Mustela frenata ), coyotes ( Canis latrans ), bobcats ( Felis rufus ), great horned owls ( Bubo virginianus ), long-eared owls ( Asio otus ), ferruginous hawks ( Buteo regalis ), and northern harriers ( Circus cyaneus ) (Janson 1946; Gashwiler et al. 1960; Green 1978; Wilde 1978; WDFW 1995).

Population cycles are not known in pygmy rabbits, although local, relatively rapid population declines have been noted in several States (Bradfield 1974; Weiss and Verts 1984; WDFW 1995). After initial declines, pygmy rabbit populations may not have the same capacity for rapid increases in numbers as other Leporids due to their close association with specific components of sagebrush ecosystems (Wilde 1978; Green and Flinders 1980b; WDFW 1995).

The historic distribution of the pygmy rabbit included much of the semi-arid, shrub steppe region of the Great Basin and adjacent intermountain zones of the conterminous western United States (Green and Flinders 1980a), and likely included portions of Montana, Idaho, Wyoming, Utah, Nevada, California, Oregon, and Washington (Figure 1).

On October 4, 2001, the U.S. Fish And Wildlife Service (USFWS) requested an exemption under Federal regulations for the management of the Steller sea lions (at 50 CFR parts 223 and 224) to allow for passage through the 3-nm no-entry zone in the Southwest Anchorage of Chirikof Island to facilitate livestock removal. Chirikof Island is part of the Alaska Maritime National Wildlife Refuge. The USFWS is working cooperatively with a private consortium to remove unauthorized livestock from refuge lands on Chirikof Island to facilitate the natural recovery of the ecosystem health of the island after more than a century of livestock grazing. This activity is part of an overall effort to remove introduced animals, including cattle and feral foxes, from the island.

USFWS proposes to remove livestock over a 2-year period beginning in October 2001. All activities will occur in areas outside the exclusion zones established for the listed Steller sea lion rookery, except at the Southwest Anchorage of the island, which is located several miles from, and out of sight of, the rookery. Therefore, the rookery should not be disturbed by this activity.

Regulations governing endangered species (50 CFR part 224) state that provisions in part 223 also apply to the endangered western stock of Steller sea lions. Section 223.202 (b)(5) allows an exemption to the no-entry zone provided that the activity is authorized by the Regional Administrator, Alaska Region, NMFS, that the activity will not have a significant adverse effect on Steller sea lions, and that no readily available and acceptable alternative site exists for the activity. The Regional Administrator has determined that this activity will not adversely affect Steller sea lions. Therefore, NMFS granted an exemption from the 3-nm no-entry restriction around Chirikof Island, AK for the removal of livestock and other appropriate feral wildlife by the USFWS. All other provisions included in 50 CFR 223.202 (a) apply.