Pursuant to the Privacy Act of 1974 (the Act), as amended (5 U.S.C. 552a(j) and (k)), the Secretary of Energy is authorized to promulgate rules, in accordance with the notice and comment requirements in 5 U.S.C. 553, to exempt any system of records within the agency from certain subsections of the Act. The Department of Energy (DOE) is adding three new systems of records to the list of systems of records exempted from certain subsections of the Act.

One of the exemptions will enable the Office of Employee Concerns to carry out its investigative duties and responsibilities. DOE and contractor employees have the right and responsibility to report concerns relating to the environment, safety, health, or management of Department operations. The Employee Concerns Program is designed to encourage open communication; inform employees of the proper forum for consideration of their concerns; ensure employees can raise issues without fearing reprisal; address employee concerns in a timely and objective manner; and provide employees an avenue for consideration of concerns that fall outside existing systems. Employee Concerns Program records include concerns or complaints brought to the attention of DOE Employee Concerns Program offices. These records include the receipt of complaints filed under 10 CFR part 708, the DOE Contractor Employee Protection Program.

A second exemption will enable the Office of Hearings and Appeals to carry out its investigative and adjudicatory responsibilities under 10 CFR part 708 and other whistleblower protection laws. These responsibilities include investigating allegations of acts of reprisal taken against a DOE contractor employee who claims to have made a protected disclosure, as defined in 10 CFR part 708, and subsequently processing such “whistleblower” claims, including hearings and appeals on such matters. These responsibilities also include investigating allegations of acts of reprisal taken against a DOE employee or DOE contractor employee who claims to have made a protected disclosure pursuant to section 3164 of the National Defense Authorization Act for FY 2000 (Pub. L. 106-65), codified in 42 U.S.C. 7239.

The third exemption will enable the Office of Intelligence to carry out its duties and responsibilities involving national security. More specifically, these include controlling access to and use of Sensitive Compartmented Information (SCI) and other classified intelligence information bearing the Director, Central Intelligence (DCI) authorized control markings; approving access to SCI in compliance with DCI directives; and conducting eligibility determinations, adjudications, revocations and appeals from denials and revocations.

A notice of proposed rulemakng was published in the Federal Register on June 14, 2001 (66 FR 32272), following publication of DOE's comprehensive systems notice on May 16, 2001 (66 FR 27300). No public comments were received on the proposed rule.

Today's final rule amends § 1008.12 (b) of DOE's Privacy Act regulation to exempt the following three new systems of records from certain subsections of the Privacy Act (5 U.S.C. 552a):

The system of records “Employee Concerns Program Records” (DOE-3) will be exempt from subsections (c)(3), (d)(2), and (e)(1) of 5 U.S.C. 552a pursuant to subsections (k)(1), (2), and (5) to the extent that information in this system meets the requirements of those subsections of the Act.

The system of records “Whistleblower Investigation, Hearing and Appeal Records” (DOE-7) will be exempt from subsections (c)(3), (d)(2), and (e)(1) of 5 U.S.C. 552a pursuant to subsections (k)(1), (2), and (5) to the extent that information in this system meets the requirements of those subsections of the Act.

The system of records “Intelligence Related Access Authorization” (DOE-15) will be exempt from subsections (c)(3), (d), (e)(1), (e)(4)(G) and (H), and (f) of 5 U.S.C. 552a pursuant to subsections (k)(1), (2), and (5) to the extent that information in this system meets the requirements of those subsections of the Act. This system of records will consist of administrative records of DOE and contractor employees, consultants, and certain persons applying for, granted or denied access to certain categories of classified information. The purpose of the system is to satisfy the requirements of Executive Order 12968, the Department of Energy Procedures for Intelligence Activities, and DOE Order 5670.1A “Management and Control of Foreign Intelligence.”

The detailed reasons for exemptions of the three systems of records under 5 U.S.C. 552a(k)(1), (2) and (5) are as follows:

1. Subsection (k)(1) Exemption. Under subsection (k)(1) of the Act records may be exempted that are “specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive Order” (5 U.S.C. 552(b)(1)). To the extent that records in these systems are classified pursuant to an Executive Order, they may not be disclosed. Therefore, this exemption will apply as follows:

(a) Except for disclosures made under (b)(7) of the Act, 5 U.S.C. 552a(c)(3) requires that upon request, an agency must give an individual named in a record an accounting that reflects the disclosure of the record to other persons or agencies. This accounting must state the date, nature, and purpose of each disclosure of the record and the name and address of the recipient. Under subsection (k)(1) of the Act, records may be exempted that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive Order. To the extent that records in these systems are classified pursuant to an Executive Order, they may not be disclosed.

DOE has programs involving classified material that may be the subject of a whistleblower complaint, and the Office of Intelligence handles certain types of classified information. The application of the Act's accounting provision to records involving properly classified material could reveal classified material. If information about classified material were disclosed, national security might be compromised. An example of an issue involving classified material that can affect national security would be a whistleblower complaint that discusses security measures at a particular weapons facility. Such information could be used to the detriment of national security.

(b) These systems also are exempt from 5 U.S.C. 552a(d)(2). To require the Office of Employee Concerns, the Office of Hearings and Appeals and the Office of Intelligence to amend information thought to be incorrect, irrelevant, or untimely because of the nature of the information collected and the essential length of time it is maintained, would create an impossible administrative and investigative burden by forcing the agency to continuously retrograde its investigations and access adjudications in response to questions involving the accuracy of these investigations and adjudications.

(c) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its records only such information about an individual that is relevant and necessary to accomplish a purpose of the agency required by statute or Executive Order. The Office of Intelligence maintains records relating to authorization for individuals to have access to classified information. The Office of Employee Concerns and the Office of Hearings and Appeals do not create the material they collect and have no control over the content of that material. An exemption from the foregoing provision is needed because:

(i) It is not always possible to assess the relevance or necessity of specific information in the early stages of an investigation that involves use of properly classified information or of an adjudication of access to classified national security information.

(ii) Relevance and necessity are questions of judgment and timing, and it is only after the information is evaluated that the relevancy and necessity of such information can be established. Furthermore, information outside the scope of the jurisdiction of the Office of Employee Concerns and the Office of Hearings and Appeals may be helpful in establishing patterns of activities or problems, or in developing information that should be referred to other entities. Such information cannot always readily be segregated. Likewise, in any adjudication of access, information may be obtained concerning violations of laws other than those within the scope of the adjudication. In the interest of effective law enforcement, such information should be retained for dissemination to appropriate law enforcement agencies.

(iii) In interviewing persons or obtaining information from other sources during an adjudication, including the background investigation, information may be supplied to the investigator that relates to matters incidental to the main purpose of the inquiry or investigation, but that also relates to matters under the jurisdiction of another agency. Such information cannot be readily segregated.

2. Subsection (k)(2) Exemption. Subsection (k)(2) permits the exemption of investigatory material compiled for law enforcement purposes, other than material within the scope of 5 U.S.C. 552a(j)(2), provided, however, that if any individual is denied any right, privilege, or benefit to which he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual. The material will be provided except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence.

(a) Except for disclosures made under (b)(7) of the Act, 5 U.S.C. 552a(c)(3) requires that upon request, an agency must give an individual named in a record an accounting that reflects the disclosure of the record to other persons or agencies. This accounting must state the date, nature, and purpose of each disclosure of the records and the name and address of the recipient. To the extent that such an accounting would lead directly or indirectly to the disclosure of the identity of a source as described above, the (k)(2) exemption is applicable.

(b) These systems also are exempt from 5 U.S.C. 552a(d)(2). To require the Office of Employee Concerns, the Office of Hearings and Appeals and the Office of Intelligence to amend information thought to be incorrect, irrelevant, or untimely, because of the nature of the information collected and the essential length of time it is maintained, would create an impossible administrative and investigative burden by forcing the agency to continuously review its investigations and access adjudications.

(c) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its records only such information about an individual that is relevant and necessary to accomplish a purpose of the agency required by statute or Executive Order. An exemption from the foregoing is needed because:

(i) It is not always possible to assess the relevance or necessity of specific information in the early stages of an investigation involving employee complaints or concerns and whistleblowing, or of an adjudication of access to classified national security information.

(ii) Relevance and necessity are questions of judgment and timing. What appears relevant and necessary when collected may ultimately be determined to be unnecessary. It is only after the information is evaluated or the investigation, hearing or appeal is completed that the relevancy and necessity of such information can be established.

(iii) In investigating an employee complaint or conducting a whistleblower proceeding, or in the adjudication of access to classified national security information, the relevant office may obtain information concerning the violation of laws other than those within the scope of its jurisdiction. In the interest of effective law enforcement, these offices should be able to retain this information as it may aid in establishing patterns of program violations or criminal activity and provide leads for those law enforcement agencies charged with enforcing criminal or civil law.

(iv) In addition, information obtained by these offices may relate not only to an investigation or proceeding under 10 CFR part 708 or to an adjudication of access to classified national security information, but also to matters under the jurisdiction of another agency. Such information cannot be readily segregated and should be retained for dissemination to appropriate law enforcement agencies charged with enforcing other criminal or civil law.

(d) The Office of Intelligence system of records is exempt from paragraphs (d), (e)(4)(G) and (H), and (f) as they relate to an individual's right to be notified of the existence of records pertaining to such individual; requirements for identifying an individual who requests access to records; and agency procedures relating to access to records and the content of information contained in such records. The reason for this exemption is that to notify an individual of the existence of records in an investigative file could interfere with investigations undertaken in connection with national security, or could disclose the identity of sources kept secret to protect national security, or could reveal confidential information supplied by these sources.

3. Subsection (k)(5) Exemption. The (k)(5) exemption is for investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information. The (k)(5) exemption applies only to the extent that disclosure would reveal the identity of a source who furnished information under an express promise of confidentiality. Where this is the case, the (k)(5) exemption applies as follows:

(a) Except for disclosures made under (b)(7) of the Act, 5 U.S.C. 552a(c)(3) requires that upon request, an agency must give an individual named in a record an accounting which reflects the disclosure of the record to other persons or agencies. This accounting must state the date, nature, and purpose of each disclosure of the records and the name and address of the recipient. To the extent that such an accounting would lead directly or indirectly to the disclosure of the identity of a source as described above, the (k)(5) exemption is applicable.

(b) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its records only such information about an individual that is relevant and necessary to accomplish a purpose of the agency required by statute or Executive Order. Any information compiled solely for one of the purposes enumerated in (k)(5), e.g., determining access to sensitive or classified information is properly subject to the (k)(5) exemption when it reveals confidential sources or confidential information. An exemption from the foregoing is needed because:

(i) It is not always possible to assess the relevance or necessity of specific information in the early stages of an investigation of a complaint or concern that may involve whistleblowing, or in the early stages of an adjudication of access to classified national security information.

(ii) Relevance and necessity are questions of judgment and timing. What appears relevant and necessary when collected may ultimately be determined to be unnecessary. It is only after the information is evaluated or the investigation, hearing or appeal is completed that the relevancy and necessity of such information can be established.

(iii) In investigating an employee complaint or concern or in conducting a whistleblower proceeding, or in the adjudication of access to classified national security information, the relevant office may obtain information concerning the violation of laws other than those within the scope of its jurisdiction. In the interest of effective law enforcement, these offices should be able to retain this information as it may aid in establishing patterns of program violations or criminal activity and provide leads for those law enforcement agencies charged with enforcing criminal or civil law.

(iv) Information obtained by the Office of Employee Concerns, the Office of Hearings and Appeals, or the Office of Intelligence in an investigation or adjudication, may relate to the DOE proceeding as well as to matters under the jurisdiction of another agency. Such information cannot be readily segregated and in the interest of effective law enforcement, such information should be retained for dissemination to appropriate law enforcement agencies charged with enforcing other criminal or civil law.

(c) 5 U.S.C. 552a(c)(4) requires disclosure of corrections or notations of disputes in records made in accordance with subsection (d). These systems are exempt from paragraph (d)(2) of the Act because to require the Office of Employee Concerns, the Office of Hearings and Appeals or the Office of Intelligence to amend information thought to be incorrect, irrelevant, or untimely, because of the nature of the information collected and the essential length of time it is maintained, would create an impossible administrative and investigative burden by forcing the agency to continuously retrograde its investigations and adjudications in response to questions involving the accuracy of these investigations and adjudications.

(d) 5 U.S.C. 552a(d), (e)(4)(G) and (H), and (f) relate to the following: a individual's right to be notified of the existence of records pertaining to such individual; requirements for identifying an individual who requests access to records; and agency procedures relating to access to records and the content of information contained in such records. The Office of Intelligence's system of records is exempt from the foregoing provisions because to notify an individual of the existence of records in an investigative file or to grant access to an investigative file could interfere with investigations undertaken in connection with national security, or could disclose the identity of sources kept secret to protect national security, or could reveal confidential information supplied by these sources.

Today's regulatory action has been determined not to be “a significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Accordingly, this action was not subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this rule meets the relevant standards of Executive Order 12988.

This rule was reviewed under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , which requires preparation of a regulatory flexibility analysis for any rule that is likely to have a significant economic impact on a substantial number of small entities. This rule will have no impact on interest rates, tax policies or liabilities, the cost of goods or services, or other direct economic factors. It also will not have any indirect economic consequences. DOE certifies that this rule will not have a significant economic impact on a substantial number of small entities and, therefore, no regulatory flexibility analysis has been prepared.

No new information collection or record keeping requirements are imposed by this rule. Accordingly, no clearance by the Office of Management and Budget is required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

DOE has concluded that this rule would not represent a major Federal action having significant impact on the human environment, as determined by DOE's regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ). Specifically, this rule amends an existing regulation and does not change its environmental impact, and, therefore, is covered under the Categorical Exclusion in paragraph A5 of Appendix A to subpart D, 10 CFR part 1021. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism” (64 FR 43255, August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policy making discretion of the States and carefully assess the necessity for such actions. DOE has examined today's rule and has determined that it does not preempt State law and does 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. No further action is required by Executive Order 13132.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written assessment of the effects of any Federal mandate in a proposed or final rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million in any one year. The Act also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and tribal governments on a proposed “significant intergovernmental mandate,” and it requires an agency to develop a plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirement that might significantly or uniquely affect them. This rule does not contain any Federal mandate and, therefore, these requirements do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a Family Policymaking Assessment for any rule or policy that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has not prepared a Family Policymaking Assessment.

Under Executive Order 13084 (Consultation and Coordination with Indian Tribal Governments), DOE may not issue a discretionary rule that significantly or uniquely affects Indian tribal governments and imposes substantial direct compliance costs. This rulemaking would not have such effects. Accordingly, Executive Order 13084 does not apply to this rulemaking.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to the promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's rule is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of today's final rule prior to the effective date set forth at the outset of this notice. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).

On August 20, 2001, the Federal Aviation Administration (FAA) issued AD 2001-17-26, amendment 39-12417 (66 FR 45575, August 29, 2001), which applies to certain Raytheon Model DH.125, HS.125, BH.125, and BAe.125 (U-125 and C-29A) series airplanes; Model Hawker 800, Hawker 800 (U-125A), Hawker 800XP, and Hawker 1000 airplanes. That AD requires an inspection for cracking or corrosion of the cylinder head lugs of the main landing gear (MLG) actuator and follow-on/corrective actions. That AD was prompted by reports of attachment lugs cracking at the actuator cylinder head. The actions required by that AD are intended to prevent separation of the cylinder head lugs, which could prevent the main landing gear from extending and result in a partial gear-up landing.

Information obtained recently by the FAA indicates that the applicability of AD 2001-17-26 needs to be clarified and corrected.

As published, the applicability of that AD did not include the serial numbers of certain airplane models that were cited in the effectivity of Raytheon Service Bulletin 32-3391, dated August 2000. To correct that omission, we have determined that the applicability of this AD also must include the affected airplane serial numbers for Model Hawker 800 (U-125A up to and including serial number 258381) and for Model Hawker 800XP (up to but not including serial number 258490), as cited in the service bulletin.

Although the applicability of AD 2001-17-26 did not include the serial numbers, the FAA's intent was to list the serial numbers cited in the referenced service bulletin.

The FAA has determined that a correction to AD 2001-17-26 is necessary to correct and clarify the applicability and to include the affected airplane serial numbers.

This document corrects and clarifies the errors of AD 2001-17-26 and correctly adds the AD as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13).

The AD is reprinted in its entirety for the convenience of affected operators. The effective date of the AD remains October 3, 2001.

Since this action only clarifies and corrects a current requirement, it has no adverse economic impact and imposes no additional burden on any person. Therefore, the FAA has determined that notice and public procedures are unnecessary.

Energy use figures for 2001 for refrigerators, refrigerator-freezers, and freezers were submitted last year by manufacturers and analyzed by the Commission. New ranges of comparability based upon them were published in the Federal Register on November 19, 2001 (66 FR 57867). The Commission staff has learned since publication that there was an inadvertent error in the range in Appendix B1 for upright freezers with manual defrost with total refrigerated volumes between 13.5 and 15.4 cubic feet. This notice contains the corrected number.

Although this corrected range of comparability for upright freezers with manual defrost is being published prior to the effective date of the November notice, manufacturers need not relabel any freezer already labeled and may use any labels that were ordered or printed before the date of this notice in good faith reliance on the November 19 notice. After this initial stock of labels is exhausted, however, manufacturers must use labels based on today's notice.

The provisions of the Regulatory Flexibility Act relating to a Regulatory Flexibility Act analysis (5 U.S.C. 603-604) are not applicable to this proceeding because the amendments do not impose any new obligations on entities regulated by the Appliance Labeling Rule. Thus, the amendments will not have a “significant economic impact on a substantial number of small entities.” 5 U.S.C. 605. The Commission has concluded, therefore, that a regulatory flexibility analysis is not necessary, and certifies, under section 605 of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the amendments announced today will not have a significant economic impact on a substantial number of small entities.

Section 871(b)(1) provides that a nonresident alien individual engaged in a trade or business within the United States shall be taxed on income effectively connected with the conduct of the trade or business within the United States. Likewise, under section 882(a)(1), a foreign corporation engaged in a trade or business within the United States shall be taxed on its income effectively connected with the conduct of the trade or business within the United States. In determining the amount of effectively connected taxable income, both the nonresident alien individual and the foreign corporation (collectively, foreign taxpayers) generally may deduct from effectively connected gross income expenses that are properly allocated and apportioned to that gross income. However, under sections 874(a)(1) and 882(c)(2), a foreign taxpayer generally is entitled to those deductions, and to allowable credits, only if it files a true and accurate U.S. income tax return in the manner prescribed in subtitle F of the Internal Revenue Code (Code), including on the return all the information necessary for the calculation of the deductions and credits.

Sections 1.874-1(b)(1) and 1.882-4(a)(3)(i) provide filing deadlines beyond which a return entitling the foreign taxpayer to deductions and credits may not be filed. Under §§ 1.874-1(b)(2) and 1.882-4(a)(3)(ii), as currently in effect, the Commissioner may waive the filing deadlines prescribed in §§ 1.874-1(b)(1) and 1.882-4(a)(3)(i) in rare and unusual circumstances if good cause for such waiver, based on the facts and circumstances, is established by a foreign taxpayer who does not file a return (a non-filer). When these regulations were promulgated in 1990, Treasury and the IRS intended that the waiver standard balance the legislative intent to establish strong compliance measures with respect to required income tax return filing by foreign taxpayers with a means to grant relief from the filing deadlines in appropriate cases. In practice, the IRS has found that the standard currently in §§ 1.874-1(b)(2) and 1.882-4(a)(3)(ii) (the waiver standard) is too restrictive and does not achieve this balance.

The temporary regulations in this document revise the waiver standard contained in §§ 1.874-1(b)(2) and 1.882-4(a)(3)(ii) and provide examples of the application of the revised standard. The revised waiver standard provides that the filing deadlines may be waived by the Commissioner or his or her delegate if the non-filer establishes that, based on the facts and circumstances, the non-filer acted reasonably and in good faith in failing to file a U.S. income tax return (including a protective return). For this purpose, a non-filer is not considered to have acted reasonably and in good faith if the non-filer knew that it was required to file the return but chose not to file the return. In addition, a non-filer shall not be granted a waiver unless the non-filer cooperates in determining the non-filer's U.S. tax liability for the taxable year for which the return was not filed. The following factors will be considered by the IRS in determining whether a non-filer, based on the facts and circumstances, acted reasonably and in good faith in failing to file a U.S. income tax return: whether the non-filer voluntarily identifies itself to the IRS as having failed to file a U.S. income tax return before the IRS discovers the failure to file; whether the non-filer did not become aware of the non-filer's ability to file a protective return by the deadline for filing the protective return; whether the non-filer had not previously filed a U.S. income tax return; whether the non-filer failed to file a U.S. income tax return because, after exercising reasonable diligence (taking into account relevant experience and level of sophistication), the non-filer was unaware of the necessity for filing the return; whether the non-filer failed to file a U.S. income tax return because of intervening events beyond the non-filer's control; and whether other mitigating or exacerbating circumstances existed.

These regulations apply to open years for which requests for waivers of application of sections 874(a) and 882(c) are filed on or after January 29, 2002.

It has been determined that these temporary regulations are not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and, because no notice of proposed rulemaking is required, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, these temporary regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small businesses.

The principal author of these regulations is Nina Chowdhry of the Office of Associate Chief Counsel (International). However, other personnel from the IRS and Treasury Department participated in their development.

(4) Effective date. Paragraphs (b)(2) and (3) of this section are applicable to open years for which a request for a waiver is filed on or after January 29, 2002.

(b)(5) through (e). For further guidance, see § 1.874-1 (b)(5) through (e).

(D) Whether the corporation failed to file a U.S. income tax return because, after exercising reasonable diligence (taking into account its relevant experience and level of sophistication), the corporation was unaware of the necessity for filing the return;

(E) Whether the corporation failed to file a U.S. income tax return because of intervening events beyond the corporation's control; and

(F) Whether other mitigating or exacerbating factors existed.

(iii) The following examples illustrate the provisions of this section. In all examples, FC is a foreign corporation and uses the calendar year as its taxable year. The examples are as follows:

(iv) Paragraphs (a)(3)(ii) and (iii) of this section are applicable to open years for which a request for a waiver is filed on or after January 29, 2002.

(a)(3)(v) through (b)(2) For further guidance, see § 1.882-4(a)(3)(v) through (b)(2).

The temporary regulations that are the subject of these corrections is under sections 631 and 633 of the Internal Revenue Code.

As published, the TD 8975 contain errors that may prove to be misleading and are in need of clarification.

The Canadian Pacific Railway requested a temporary deviation on December 4, 2001 for the operation of the LaCrosse Railroad drawbridge (33 CFR 117.671(b)) to allow the bridge owner time for preventative maintenance.

The LaCrosse Railroad Drawbridge provides a vertical clearance of 21.9 feet above normal pool in the closed-to-navigation position. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. This deviation has been coordinated with waterway users. No objections were received.

This deviation allows the bridge to remain closed to navigation from 12:01 a.m., January 14, 2002 to 12:01 a.m., March 11, 2002. The drawbridge operation regulations, when not amended by a deviation, requires that the drawbridge open on signal.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. Publishing a NPRM, which would incorporate a comment period before a final rule could be issued, would be contrary to the public interest since immediate action is needed to protect the public, ports and waterways of the United States. For the same reasons, 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 Coast Guard will issue a broadcast notice to mariners and place Coast Guard vessels in the vicinity to advise mariners of the zone.

Based on the September 11, 2001, terrorist attacks on the World Trade Center buildings in New York and the Pentagon in Arlington, Virginia, there is an increased risk that subversive activity could be launched by vessels or persons in close proximity to Port Everglades against tank vessels and cruise ships entering, departing and moored within these ports. United States Coast Guard and local police department patrol vessels will patrol this zone. The Captain of the Port has previously established a fixed security zone for high capacity passenger vessels, and vessels carrying cargoes of particular hazard in dockets COTP Miami-01-093 and COTP Miami-01-115 (67 FR 1101, January 9, 2002).

Unauthorized vessels are prohibited from entering this temporary fixed security zone. The zone encompasses the waters of the Intracoastal Waterway between a line connecting point 26°05.41′ N, 080°06.97′ W on the northern tip of Port Everglades berth 22 near Bert and Jacks Restaurant and a point directly east across the Intracoastal Waterway to 26°05.41′ N, 080° 06.74′ W; and a line drawn from the corner of Port Everglades berth 29 at point 26°04.72′ N, 080°06.92′ W, easterly across the Intracoastal Waterway to John U. Loyd Beach, State Recreational Area at point 26°04.72′ N, 080°06.81′ W. The temporary fixed security zones is activated when a high capacity passenger vessel or a vessel carrying cargoes of particular hazard as defined in Title 33 of the Code of Federal Regulations, part 126, enter or moor within this zone.

Vessels may transit the Intracoastal Waterway when cruise ships are berthed, by staying east of the law enforcement boats and cruise ship tenders which will mark a transit lane in the Intracoastal Waterway. Periodically, vessels may be asked to temporarily hold their positions while large commercial traffic operates in this area. Vessels near this security zone must follow the orders of the law enforcement vessels on scene. When cruise ships are not berthed on the Intracoastal Waterway, the zone will remain in place, but navigation will be unrestricted. Law enforcement vessels can be contacted on VHF Marine Band Radio, Channel 16 (156.8 MHz).

The Captain of the Port will notify the public via Marine Safety Radio Broadcast on VHF Marine Band Radio, Channel 22 (157.1 MHz) when the zone is activated. Entry into this security zone is prohibited unless specifically authorized by the Captain of the Port, Miami, Florida.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. The Office of Management and Budget has not reviewed it under that order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979) because this zone is only in effect when certain vessels enter or moor at certain berths in Port Everglades. Moreover, traffic will be allowed to enter and pass through this zone under the direction of U.S. Coast Guard or assisting law enforcement vessels.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this rule would have a significant economic effect upon a substantial number of small entities. “Small entities” include 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.

Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities because the zone will only be in effect during certain times and small entities may be allowed to enter the zone during scheduled vessel escorts.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

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 each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

A rule has implication for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

The Coast Guard considered the environmental impact of this rule and concluded under Figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation.

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

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

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or use. We have determined that it is not a “significant energy action” under 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.

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

Information regarding this action is presented in the following order:

Section 111(d) of the CAA requires states to submit plans to control certain pollutants (designated pollutants) at existing facilities (designated facilities) whenever standards of performance have been established under section 111(b) for new sources of the same type, and EPA has established emission guidelines for such existing sources. A designated pollutant is any pollutant for which no air quality criteria have been issued, and which is not included on a list published under section 108(a) or section 112(b)(1)(A) of the CAA, but emissions of which are subject to a standard of performance for new stationary sources.

On December 1, 2000 (65 FR 75338), EPA finalized the section 111(d) emission guidelines for existing CISWI units. The emission guidelines are codified at 40 CFR part 60, subpart DDDD.

Subpart B of 40 CFR part 60 establishes procedures to be followed and requirements to be met in the development and submission of state plans for controlling designated pollutants. Part 62 of the CFR provides the procedural framework for the submission of these plans. When designated facilities are located in a state, a state must develop and submit a plan for the control of the designated pollutant. However, 40 CFR 62.06 provides that if there are no existing sources of the designated pollutant in the state, the state may submit a letter of certification to that effect, or negative declaration, in lieu of a plan. The negative declaration exempts the state from the requirements of subpart B for that designated pollutant.

The states of Kansas, Missouri, and Nebraska have determined there are no existing sources in their states subject to the CISWI emission guidelines (EG). Consequently, each state has submitted a letter of negative declaration certifying this fact. We are therefore announcing that these states do not have any sources subject to the EG. If at a later date such sources are identified, they will be subject to a Federal plan until a state has an approved 111(d) plan.

We are processing this action as a final action because 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 negative declarations as meeting Federal requirements and imposes no additional requirements. 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 state negative declarations and does not impose any additional enforceable duty, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves state negative declarations relating to 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 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing state plan submissions, our 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), we have no authority to disapprove state submissions for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews state submissions, to use VCS in place of state submissions that otherwise satisfy the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, we have taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. We will submit a report containing this rule and other required information to the United States Senate, the United States 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 April 1, 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).)

Section 112(l) of the Act and 40 Code of Federal Regulations (CFR) part 63, subpart E authorize EPA to approve of State rules and programs to be implemented and enforced in place of certain CAA requirements, including the National Emission Standards for Hazardous Air Pollutants set forth at 40 CFR part 63. EPA promulgated the program approval regulations on November 26, 1993 (58 FR 62262) and subsequently amended these regulations on September 14, 2000 (65 FR 55810). An approvable State program must contain, among other criteria, the following elements:

(a) A demonstration of the state's authority and resources to implement and enforce regulations that are at least as stringent as the National Emission Standards for Hazardous Air Pollutant (NESHAP) requirements;

(b) A schedule demonstrating expeditious implementation of the regulation; and

(c) A plan that assures expeditious compliance by all sources subject to the regulation.

On March 30, 1998, AMS, through a letter from the Pennsylvania Department of Environmental Protection (PADEP), submitted to EPA a request to receive delegation of authority to implement and enforce the hazardous air pollutant regulations which have been adopted by reference from 40 CFR part 63. On May 13, 1999, PADEP submitted a copy of an Agreement for Implementation of the Philadelphia County Air Pollution Control Program between PADEP and AMS. These two submissions provided detailed information on AMS's legal and enforcement authority, resources, and implementation procedures for addressing the hazardous air pollutant regulations, among other regulations, at facilities required to obtain an operating permit under 40 CFR part 70. On August 29, 2001, AMS submitted to EPA a request to receive delegation of authority to implement and enforce the hazardous air pollutant regulations for perchloroethylene drycleaning facilities, hard and decorative chromium electroplating and chromium anodizing tanks, ethylene oxide sterilization facilities, halogenated solvent cleaning and secondary lead smelting which have been adopted by reference from 40 CFR part 63, subparts M, N, O, T and X, respectively. In this August 29, 2001 request, AMS also asked that EPA automatically delegate future amendments to these specific regulations and approve AMS's mechanism for receiving delegation of all future hazardous air pollutant regulations which it adopts unchanged from the Federal requirements. This mechanism entails submission of a delegation request letter to EPA following EPA notification of a new Federal requirement.

Based on AMS's program approval request and its pertinent laws and regulations, EPA has determined that such an approval is appropriate in that AMS has satisfied the criteria of 40 CFR 63.91. In accordance with 40 CFR 63.91(d)(3)(i), AMS submitted two written findings by the City Solicitor which demonstrate that AMS has the necessary legal authority to implement and enforce its regulations, including the enforcement authorities which meet 40 CFR 70.11, the authority to request information from regulated sources and the authority to inspect sources and records to determine compliance status. In accordance with 40 CFR 63.91(d)(3)(ii), AMS submitted copies of its statutes, regulations and requirements that grant authority to AMS to implement and enforce the regulations. In accordance with 40 CFR 63.91(d)(3)(iii)-(v), AMS submitted documentation of adequate resources and a schedule and plan to assure expeditious City implementation and compliance by all sources. Therefore, the AMS program has adequate and effective authorities, resources, and procedures in place for implementation and enforcement of the emission standards of 40 CFR part 63 at sources required to obtain an operating permit under 40 CFR part 70 and the emission standards of 40 CFR part 63, subparts M, N, O, T and X at sources which are not required to obtain an operating permit under 40 CFR part 70. In addition, the AMS program has adequate and effective authorities, resources and procedures in place for implementation and enforcement of any future emission standards, should AMS seek delegation for these standards. The AMS automatically adopts the emission standards promulgated in 40 CFR part 63 into its permitting program under Philadelphia Code 3-401 and Air Management Regulation I Section IX pursuant to section 6.6(a) of the Pennsylvania Air Pollution Control Act, 35 P.S. 4006.6(a) and 25 Pa. Code 127.35. The AMS has the primary authority and responsibility to carry out all elements of these programs for all sources covered in Philadelphia, including on-site inspections, record keeping reviews, and enforcement.

In order for AMS to receive automatic delegation of future amendments to the hazardous air pollutant regulations, as they apply to facilities required to obtain a permit under 40 CFR part 70, and to the hazardous air pollutant regulations for perchloroethylene drycleaning facilities, hard and decorative chromium electroplating and chromium anodizing tanks, ethylene oxide sterilization facilities, halogenated solvent cleaning and secondary lead smelting emission standards, as they apply to facilities not required to obtain a permit under 40 CFR part 70, each amendment must be legally adopted by the City of Philadelphia. As stated earlier, these amendments are automatically adopted into AMS's permitting program under Philadelphia Code 3-401 and Air Management Regulation I Section IX pursuant to section 6.6(a) of the Pennsylvania Air Pollution Control Act, 35 P.S. 4006.6(a) and 25 Pa. Code 127.35. The delegation of amendments to these rules will be finalized on the effective date of the legal adoption.

EPA has also determined that AMS's mechanism for receiving delegation of future hazardous air pollutant regulations, which it adopts unchanged from the Federal requirements, can be approved. This mechanism requires AMS to submit a delegation request letter to EPA following EPA notification of a new Federal requirement. EPA will grant the delegation request, if appropriate, by sending a letter to AMS outlining the authority to implement and enforce the standard. The delegation will be finalized within 10 days of receipt of the delegation letter unless AMS files a negative response. The official notice of delegation of additional emission standards will be published in the Federal Register.

The notification and reporting provisions in 40 CFR part 63 requiring the owners or operators of affected sources to make submissions to the Administrator shall be met by sending such submissions to AMS and EPA Region III. If at any time there is a conflict between a AMS regulation and a Federal regulation, the Federal regulation must be applied if it is more stringent than that of AMS. EPA is responsible for determining stringency between conflicting regulations. If AMS does not have the authority to enforce the more stringent Federal regulation, it shall notify EPA Region III in writing as soon as possible, so that this portion of the delegation may be revoked.

If EPA determines that AMS's procedure for enforcing or implementing the 40 CFR part 63 requirements is inadequate, or is not being effectively carried out, this delegation may be revoked in whole or in part in accordance with the procedures set out in 40 CFR 63.96(b).

Certain provisions of 40 CFR part 63 allow only the Administrator of EPA to take further standard setting actions. In addition to the specific authorities retained by the Administrator in 40 CFR 63.90(d) and the “Delegation of Authorities” section for specific standards, EPA Region III is retaining the following authorities, in accordance with 40 CFR 63.91(g)(2)(ii):

(1) approval of alternative non-opacity emission standards, e.g., 40 CFR 63.6(g) and applicable sections of relevant standards;

(2) approval of alternative opacity standards, e.g., 40 CFR 63.9(h)(9) and applicable sections of relevant standards;

(3) approval of major alternatives to test methods, as defined in 40 CFR 63.90(a), e.g., 40 CFR 63.7(e)(2)(ii) and (f) and applicable sections of relevant standards;

(4) approval of major alternatives to monitoring, as defined in 40 CFR 63.90(a), e.g., 40 CFR 63.8(f) and applicable sections of relevant standards; and

(5) approval of major alternatives to recordkeeping and reporting, as defined in 40 CFR 63.90(a), e.g. , 40 CFR 63.10(f) and applicable sections of relevant standards.

The following provisions are included in this delegation, in accordance with 40 CFR 63.91(g)(1)(i), and can only be exercised on a case-by-case basis. When any of these authorities are exercised, AMS must notify EPA Region III in writing:

(1) applicability determinations for sources during the title V permitting process and as sought by an owner/operator of an affected source through a formal, written request, e.g. , 40 CFR 63.1 and applicable sections of relevant standards;  1

(2) responsibility for determining compliance with operation and maintenance requirements, e.g. , 40 CFR 63.6(e) and applicable sections of relevant standards;

(3) responsibility for determining compliance with non-opacity standards, e.g. , 40 CFR 63.6(f) and applicable sections of relevant standards;

(4) responsibility for determining compliance with opacity and visible emission standards, e.g. , 40 CFR 63.6(h) and applicable sections of relevant standards;

(5) approval of site-specific test plans,  2 e.g. , 40 CFR 63.7(c)(2)(i) and (d) and applicable sections of relevant standards;

(6) approval of minor alternatives to test methods, as defined in 40 CFR 63.90(a), e.g. , 40 CFR 63.7(e)(2)(i) and applicable sections of relevant standards;

(7) approval of intermediate alternatives to test methods, as defined in 40 CFR 63.90(a), e.g. , 40 CFR 63.7(e)(2)(ii) and (f) and applicable sections of relevant standards;

(8) approval of shorter sampling times/volumes when necessitated by process variables and other factors, e.g. , 40 CFR 63.7(e)(2)(iii) and applicable sections of relevant standards;

(9) waiver of performance testing, e.g. , 40 CFR 63.7 (e)(2)(iv), (h)(2), and (h)(3) and applicable sections of relevant standards;

(10) approval of site-specific performance evaluation (monitoring) plans  3 , e.g. , 40 CFR 63.8(c)(1) and (e)(1) and applicable sections of relevant standards;

(11) approval of minor alternatives to monitoring methods, as defined in 40 CFR 63.90(a), e.g. , 40 CFR 63.8(f) and applicable sections of relevant standards;

(12) approval of intermediate alternatives to monitoring methods, as defined in 40 CFR 63.90(a), e.g. , 40 CFR 63.8(f) and applicable sections of relevant standards;

(13) approval of adjustments to time periods for submitting reports, e.g. , 40 CFR 63.9 and 63.10 and applicable sections of relevant standards; and

(14) approval of minor alternatives to recordkeeping and reporting, as defined in 40 CFR 63.90(a), e.g. , 40 CFR 63.10(f) and applicable sections of relevant standards.

As required, AMS and EPA Region III will provide the necessary written, verbal and/or electronic notification to ensure that each agency is fully informed regarding the interpretation of applicable regulations in 40 CFR part 63. In instances where there is a conflict between a AMS interpretation and a Federal interpretation of applicable regulations in 40 CFR part 63, the Federal interpretation must be applied if it is more stringent than that of AMS. Written, verbal and/or electronic notification will also be used to ensure that each agency is informed of the compliance status of affected sources in Philadelphia. The AMS will comply with all of the requirements of 40 CFR 63.91(g)(1)(ii). Quarterly reports will be submitted to EPA by AMS to identify sources determined to be applicable during that quarter.

Although AMS has primary authority and responsibility to implement and enforce the hazardous air pollutant regulations, nothing shall preclude, limit, or interfere with the authority of EPA to exercise its enforcement, investigatory, and information gathering authorities concerning this part of the Act.

EPA is approving AMS's request for delegation of authority to implement and enforce its hazardous air pollutant emission standards which have been adopted by reference from the Federal requirements set forth in 40 CFR part 63. This approval will automatically delegate future amendments to these regulations. For sources which are required to obtain an operating permit under 40 CFR part 70, this delegation addresses all existing hazardous pollutant emission standards as adopted by reference from 40 CFR part 63. For sources which are not required to obtain an operating permit under 40 CFR part 70, this delegation presently addresses the hazardous air pollutant regulations for perchloroethylene drycleaning facilities, hard and decorative chromium electroplating and chromium anodizing tanks, ethylene oxide sterilization facilities, halogenated solvent cleaning and secondary lead smelting as adopted by reference from 40 CFR part 63, subparts M, N, O, T and X. In addition, EPA is approving of AMS's mechanism for receiving delegation of all future hazardous air pollutant regulations which it adopts unchanged from the Federal requirements. This mechanism entails submission of a delegation request letter to EPA following EPA notification of a new Federal requirement. The delegation of authority shall be administered in accordance with the terms outlined in section IV., above. This delegation of authority is codified in 40 CFR 63.99. In addition, EPA Region III's address is corrected in 40 CFR 63.13.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial rule and anticipates no adverse comment because AMS's request for delegation of the hazardous air pollutant regulations and its request for automatic delegation of future amendments to these rules and future standards, when specifically identified, does not alter the stringency of these regulations and is in accordance with all program approval regulations. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve of AMS's request for delegation if adverse comments are filed. This rule will be effective on April 1, 2002 without further notice unless EPA receives adverse comment by February 28, 2002. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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 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), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing requests for rule approval under CAA section 112, 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 requests for rule approval under CAA section 112 for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a request for rule approval under CAA section 112, to use VCS in place of a request for rule approval under CAA section 112 that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 1, 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, pertaining to the approval of AMS's delegation of authority for the hazardous air pollutant emission standards (CAA section 112), may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

In this direct final rule, EPA is removing, or in some cases, modifying, restrictions that were imposed on the use of certain substitutes for ODSs under the SNAP program in the fire suppression and explosion protection industry sector. Today's action also adds a fire suppression agent to the list of acceptable substitutes, subject to narrowed use limits. The regulations implementing the SNAP program are codified at 40 CFR part 82, subpart G. The appendices to subpart G list substitutes for ODSs that have had restrictions imposed on their use. The revisions in this direct final rule modify the appendices to subpart G.

EPA is publishing today's revisions to the SNAP lists without prior proposal because the Agency views them as non-controversial and anticipates no adverse comment. The most significant position of this rule is to simply remove restrictions that are now duplicative of standards of the National Fire Protection Association (NFPA). In addition, we are adding a new agent to the list of acceptable substitutes, subject to narrowed use limits, and changing the listing from acceptable, subject to use conditions, to unacceptable for an agent that is no longer sold or produced because of fetal toxicity and a high ozone depletion potential. This action does not place any significant new burden on the regulated community. Rather, it removes mandatory conditions on use of certain substitutes under the SNAP program while encouraging voluntary compliance with NFPA's 2001 Standard. For the only part of the action creating further restrictions, it is our understanding that the agent we are listing as unacceptable is not currently being used; thus, it should not add significantly to regulatory burden. Today's action decreases the regulatory burden on the fire protection community while continuing to protect human health and the environment. Members of the fire protection community participate on NFPA's technical committee that is responsible for developing and updating the 2001 standard and adhere to the standards set by NFPA. For these reasons, EPA anticipates that this action will be welcomed.

However, in the “Proposed Rules” section of today's Federal Register publication, EPA is publishing a companion proposed rule that proposes the same actions as this direct final rule. The direct final rule will be effective on April 1, 2002 without further notice unless we receive adverse comment (or a request for a public hearing) by February 28, 2002. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that all or amendments, tables, or table entries of this rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second public comment period on this action. Any parties interested in commenting must do so at this time.

You may claim that information in your comments is confidential business information, as allowed by 40 CFR part 2. If you submit comments and include information that you claim as confidential business information, we request that you submit them directly to Margaret Sheppard in two versions: one clearly marked “Public” to be filed in the public docket, and the other marked “Confidential” to be reviewed by authorized government personnel only.

Section 612 of the Clean Air Act (CAA) authorizes EPA to develop a program for evaluating alternatives to ozone-depleting substances. EPA refers to this program as the Significant New Alternatives Policy (SNAP) program. The major provisions of section 612 are:

• Rulemaking —Section 612(c) requires EPA to promulgate rules making it unlawful to replace any class I (chlorofluorocarbon, halon, carbon tetrachloride, methyl chloroform, methyl bromide, and hydrobromofluorocarbon) or class II (hydrochlorofluorocarbon) substance with any substitute that the Administrator determines may present adverse effects to human health or the environment where the Administrator has identified an alternative that (1) reduces the overall risk to human health and the environment, and (2) is currently or potentially available.

• Listing of Unacceptable/Acceptable Substitutes —Section 612(c) also requires EPA to publish a list of the substitutes unacceptable for specific uses. EPA must publish a corresponding list of acceptable alternatives for specific uses.

• Petition Process —Section 612(d) grants the right to any person to petition EPA to add a substitute to or delete a substitute from the lists published in accordance with section 612(c). The Agency has 90 days to grant or deny a petition. Where the Agency grants the petition, EPA must publish the revised lists within an additional six months.

• 90-day Notification —Section 612(e) requires EPA to require any person who produces a chemical substitute for a class I substance to notify the Agency not less than 90 days before new or existing chemicals are introduced into interstate commerce for significant new uses as substitutes for a class I substance. The producer must also provide the Agency with the producer's health and safety studies on such substitutes.

• Outreach —Section 612(b)(1) states that the Administrator shall seek to maximize the use of federal research facilities and resources to assist users of class I and II substances in identifying and developing alternatives to the use of such substances in key commercial applications.

• Clearinghouse —Section 612(b)(4) requires the Agency to set up a public clearinghouse of alternative chemicals, product substitutes, and alternative manufacturing processes that are available for products and manufacturing processes which use class I and II substances.

On March 18, 1994, EPA published the original rulemaking (59 FR 13044) that described the process for administering the SNAP program and issued EPA's first acceptability lists for substitutes in the major industrial use sectors. These sectors include: refrigeration and air conditioning; foam blowing; solvents cleaning; fire suppression and explosion protection; sterilants; aerosols; adhesives, coatings and inks; and tobacco expansion. These sectors comprise the principal industrial sectors that historically consumed large volumes of ozone-depleting substances.

Anyone who produces a substitute for an ODS must provide the Agency with health and safety studies on the substitute at least 90 days before introducing it into interstate commerce for significant new use as an alternative. This requirement applies to chemical manufacturers, but may include importers, formulators or end-users when they are responsible for introducing a substitute into commerce.

The Agency has identified four possible decision categories for substitutes: acceptable; acceptable subject to use conditions; acceptable subject to narrowed use limits; and unacceptable. Use conditions and narrowed use limits are both considered “use restrictions” and are explained below. Substitutes that are deemed acceptable with no use restrictions (no use conditions or narrowed use limits) can be used for all applications within the relevant sector end-use. Substitutes that are acceptable subject to use restrictions may be used only in accordance with such restrictions. It is illegal to replace an ODS with a substitute listed as unacceptable.

After reviewing a substitute, the Agency may make a determination that a substitute is acceptable only if certain conditions of use are met to minimize risk to human health and the environment. Such substitutes are described as “acceptable subject to use conditions.” Use of such substitutes without meeting associated use conditions renders these substitutes unacceptable and subjects the user to enforcement for violation of section 612 of the Clean Air Act.

For some substitutes the Agency may permit a narrowed range of use within a sector (that is, the Agency may limit the use of a substitute to certain end-uses or specific applications within an industry sector), to allow agents to be used in specific uses that would otherwise be deemed unacceptable. Such substitutes are described as “acceptable subject to narrowed use limits.” Users intending to adopt a substitute that is acceptable subject to narrowed use limits must ascertain that other acceptable alternatives are not technically feasible. Users must document the results of their evaluation, and retain the results on file for the purpose of demonstrating compliance. This documentation shall include descriptions of substitutes examined and rejected, processes or products in which the substitute is needed, reason for rejection of other alternatives (for example, performance, technical or safety standards), and the anticipated date other substitutes will be available and projected time for switching to other available substitutes. Use of such substitutes in applications and end-uses which are not specified as acceptable in the narrowed use limit renders these substitutes unacceptable.

The Agency publishes its SNAP program decisions in the Federal Register . For those substitutes that are deemed acceptable subject to use restrictions (use conditions and/or narrowed use limits), or for substitutes deemed unacceptable, EPA first publishes these decisions as proposals to allow the public opportunity to comment, and final decisions are published as final rulemakings. In contrast, substitutes that are deemed acceptable with no restrictions are published as “notices of acceptability”, rather than as proposed and final rules. As described in the rule implementing the SNAP program (59 FR 13044), EPA does not believe that rulemaking procedures are necessary to list alternatives that are acceptable without restrictions because such listings neither impose any sanction nor remove any prior license to use a substitute.

Many SNAP listings include statements in the column labelled “Further Information” (or in earlier listings, “Comments”). These comments provide additional information on substitutes determined to be either unacceptable, acceptable subject to narrowed use limits, or acceptable subject to use conditions. Since these statements are not part of the regulatory decision, they are not mandatory for use of a substitute unless they specifically reference regulatory requirements. Nor should the information be considered comprehensive with respect to other legal obligations pertaining to the use of the substitute. However, EPA encourages users of substitutes to apply all this information in their application of these substitutes, regardless of any regulatory requirements. In many instances, the information simply refers to sound operating practices that have already been identified in existing industry and/or building-code standards. Thus, many of the statements, if adopted, would not require significant changes in existing operating practices for the affected industry.

For copies of the comprehensive SNAP lists or additional information on SNAP, contact the Stratospheric Protection Hotline at (800) 296-1996, Monday-Friday, between the hours of 10 a.m. and 4 p.m. (EST). For more information on the Agency's process for administering the SNAP program or criteria for evaluation of substitutes, refer to the SNAP final rulemaking published in the Federal Register on March 18, 1994 (59 FR 13044), and see also the Code of Federal Regulations at 40 CFR part 82, subpart G. You can find a complete chronology of SNAP decisions and the appropriate Federal Register citations at EPA's Ozone Depletion World Wide Web site at http://www.epa.gov/ozone/title6/snap/chron.html.

Substitutes for halons in the fire suppression and explosion protection industry are classified as either total flooding agents or streaming agents under the SNAP program. Today's action removes or modifies restrictions pertaining to workplace exposures on certain substitutes used as total flooding agents.

A total flooding fire protection system can be defined as “a system consisting of an agent supply and distribution network designed to achieve a total flooding condition in a hazard volume,” when total flooding is defined as “the act and manner of discharging an agent for the purpose of achieving a specified minimum agent concentration throughout a hazard volume” (National Fire Protection Association 2001 Standard for Clean Agent Fire Extinguishing Systems, 2000 Edition).

Beginning with the original SNAP rulemaking (March 18, 1994, 59 FR 13044) and continuing in subsequent rulemakings, EPA has listed several halocarbon and inert gas agents as acceptable substitutes for halons as total flooding agents. However, because of health risks associated with exposures at elevated concentrations of these agents, the acceptability decisions for halocarbon and inert gas agents were made subject to use conditions that are intended to limit human exposure to these agents.

For halocarbon agents, the health effect of concern is cardiac sensitization (an increase in the sensitivity of the heart to adrenaline). The use conditions for halocarbon substitutes under the SNAP program are based on the no observed adverse effect level (NOAEL) and lowest observed adverse effect level (LOAEL) for cardiac sensitization. See 59 FR 13098 (March 18, 1994).

For inert gas agents, the human health effect of concern is reduction of oxygen to potentially unsafe levels. The use conditions under the SNAP program for inert gas substitutes are based on minimum oxygen levels associated with use of the agent. See 59 FR 13098 (March 18, 1994).

In establishing standards for safe use of halocarbon total flooding alternatives, EPA based exposure limits on available animal toxicological data and established exposure times to be consistent with the exposure limits for halon 1301 in the Occupational Safety and Health Administration's (OSHA) standard on fixed fire suppression equipment (see 29 CFR 1910, subpart L sections 1910.162 and 1910.160). Section 1910.162 limits workers' exposure to halon 1301 by linking percent agent concentration in air with the length of time required to safely leave an area (the egress time). EPA developed standards for safe use of halocarbons that link percent concentration in air of the agent (based on the cardiac sensitization NOAEL and LOAEL as determined by animal testing) with egress times.

In establishing standards for safe use of inert gases used as alternatives to halons for total flooding applications, EPA linked minimum oxygen concentration in air with egress times. This is similar to the approach for setting exposure limits for halocarbon agents. For inert gases, we used 12% and 10% oxygen as functional equivalents of the NOAEL and LOAEL, respectively. See 59 FR 13108 and 13142 (March 18, 1994) and 61 FR 25588-25590 (May 22, 1996).

The National Fire Protection Association (NFPA) is an independent, voluntary membership, non-profit international organization that is dedicated to reducing the burden of fire on the quality of life by advocating scientifically-based consensus codes and standards, research, and education for fire and related safety issues. NFPA codes and standards are developed through a consensus process accredited by the American National Standards Institute (ANSI). NFPA codes and standards are used by the fire protection community throughout the United States and the world, and are widely used as a basis for legislation and regulation at all levels of government, from local to international.

Since 1896, the NFPA has been developing and updating scientifically based consensus codes and standards concerning all areas of fire safety. There are currently more than 300 NFPA fire codes and standards in use. Examples include NFPA 10 on Portable Extinguishers, NFPA 12 on Carbon Dioxide Systems, and NFPA 12A on Halon 1301 Systems. These standards allow for safe use of fire protection agents and systems.

NFPA codes and standards are developed and updated through an open, consensus-based process involving thousands of volunteers with technical expertise in a wide range of areas. Volunteers come from the fire services, educational institutions, businesses, insurance companies, industry, labor, consumers, and governing agencies. Any person can submit a proposal to NFPA for a new document or to update an existing one. Various technical committees, made up of volunteers representing a balance of different interests, are assigned to each project. The technical committee develops an initial draft of the project, and issues public notices asking for proposals to include in the document. The committee meets to consider all proposals on a project, and the proposals and the committee's action on them are published and made widely available to the public. Anyone may attend the committee meetings, and address technical committees. If a committee votes to approve their action on the proposals, a 60-day public comment period begins, after which the committee meets again to act on the comments (again anyone may attend the meeting and address the committee). If the committee votes to approve the comments, a report on the comments is published and is made available to anyone for review. The proposals and comments are then submitted for open debate at either of NFPA's twice annual Association meetings. Anyone (regardless of whether they are an NFPA member or not) can present their views on the proposal and comments at the annual meetings. After deliberation, the NFPA membership votes to either approve, amend, or return portions or the entire document to the technical committee. The technical committee then votes on any amendments to the document that were made at the NFPA Association meeting. Any person can file an appeal to NFPA if they are dissatisfied with actions taken during the development of codes and standards.

Building codes (or other local codes) specify requirements for fire protection systems based on the specific level of fire hazard present. These codes apply to the design, installation and operation of the fire protection system and assign the approval authority (or “authority having jurisdiction,” AHJ) that is responsible for determining that all systems installed meet the codes. The design and installation requirements for individual systems are based on compliance with applicable NFPA standards. NFPA standards apply to the fire protection agents, and the equipment and devices that make up the entire fire protection system. NFPA standards establish applicability of fire protection agents in particular system applications, and require that all equipment and devices used in a system be listed by a third party organization that is acceptable to the approval authority and is concerned with product evaluation. (“Listed” means “Equipment, materials or services included in a list published by an organization that is acceptable to the authority having jurisdiction and concerned with evaluation of products or services, that maintains periodic inspection of production of listed equipment or materials or periodic evaluation of services, and whose listing states that either the equipment, material, or service meets appropriate designated standards or has been tested and found suitable for a specified purpose.” National Fire Protection Association 2001 Standard for Clean Agent Fire Extinguishing Systems, 2000 Edition)

At the time that EPA developed the original SNAP rule, neither a relevant regulatory agency (for example, OSHA) nor a voluntary consensus standard setting body (for example, NFPA) had yet established use conditions that would adequately limit human exposure to alternatives to halons used as total flooding agents, nor had they established a procedure for determining use conditions. Thus, we developed exposure criteria under the SNAP program to allow for safe use of these alternative agents (that is, halocarbon and inert gas agents) in the interim. In the original SNAP rule, EPA established use conditions to allow halocarbon and inert gas alternative agents to be safely used and to facilitate the transition from use of halon 1301 to these agents. See 59 FR 13102 and 13139 through 13143 (March 18, 1994).

As halocarbon and inert gas total flooding alternatives were being developed to replace halon 1301, NFPA began work on a voluntary consensus standard to address design, installation, maintenance and operation of systems using these alternatives. The resulting standard, first published February 11, 1994, is called NFPA 2001 Standard on Clean Agent Fire Extinguishing Systems. The NFPA 2001 Standard is approved by the American National Standards Institute. The NFPA technical committee that developed and updates the 2001 standard is the Technical Committee on Alternative Protection Options to Halon.

NFPA 2001 established use conditions designed to limit human exposure to the alternative total flooding agents. The original NFPA 2001 Standard restricted use of agents to areas that are not normally occupied, if used in concentrations exceeding the NOAEL concentration. Concentrations less than the NOAEL were allowed in areas that are normally occupied. However, these earlier versions of the NFPA standard did not set limits on the duration of exposure at concentrations less than the NOAEL, and did not establish egress times. Thus, the February 11, 1994 version of the standard did not include as much protection for human health as the March 18, 1994 final SNAP rule. Only the most recent revision to NFPA 2001 established standard egress times consistent with OSHA requirements and the SNAP use conditions.

The latest edition of NFPA 2001 was published in March 2000 (NFPA 2001 Standard for Clean Agent Fire Extinguishing Systems 2000 Edition). This most recent version of the standard includes the following revisions to the exposure limits and times for halocarbon and inert gas agents:

• For halocarbon agents , the NFPA 2001 Standard has been revised to adopt the use of a physiologically-based pharmacokinetic (PBPK) model to establish limits on exposure concentrations and times. Use of the PBPK model is a more precise method of determining safe human exposure concentrations and times than the method contained in previous editions of NFPA 2001 and EPA's SNAP listings.

• For inert gas agents , the NFPA 2001 Standard has been revised to adopt the findings of an expert panel on health effects of hypoxic (low oxygen) atmospheres. This expert panel was convened by EPA to re-evaluate egress times for inert gas agents using the latest technical information. Based on the expert panel's findings, the egress times in the NFPA 2001 Standard were revised.

The latest NFPA 2001 Standard is based on the most current scientific information and procedures for assessing risks associated with the use of halocarbon and inert gas fire suppression agents. NFPA's 2001 Standard for Clean Agent Fire Extinguishing Systems is now the basis for regulation of halon replacement systems throughout North America and is also widely used in other parts of the world. Based on these developments, EPA has concluded that NFPA has established a standard that:

(1) Adequately addresses safe exposure limits and times for halocarbon and inert gas agents;

(2) Takes into account the latest science and;

(3) Is more up-to-date than the SNAP exposure limits and egress times for these agents. Thus, we believe that there now exists a standard industry procedure with a scientific basis to establish exposure levels and egress times and that the use conditions required by the SNAP program, which establish exposure levels and egress times for these agents, are redundant and should be rescinded.

Today EPA is rescinding the SNAP use conditions that limit human exposure to halocarbon and inert gas total flooding alternatives, and is instead referring to the latest NFPA 2001 Standard for safe use of these agents. EPA originally established exposure limits and egress times for these alternatives to allow for their safe use in the absence of existing standards that addressed these issues. In setting those conditions, EPA did not intend to preempt other regulatory authorities or standard-setting bodies from establishing exposure levels for these agents. In fact, as stated in the proposal for the original SNAP rule (58 FR 28098; May 12, 1993), EPA intended only to fill regulatory gaps until other controls or standards were developed; we intended to rescind any conditions that became redundant or irrelevant once such gaps were filled.

EPA has worked with NFPA on development of each edition of the 2001 standard, including the latest revisions, and plans to work with NFPA on future editions. Rather than modifying SNAP exposure limits and times to reflect the same changes as are in the latest NFPA 2001 Standard, EPA is rescinding the SNAP exposure limits and times and is instead deferring to NFPA 2001, as the appropriate American national industry standard.

Although EPA is removing use conditions on the use of halocarbon and inert gas alternatives, we believe that the fire protection community will continue to use these agents safely because the NFPA 2001 Standard establishes exposure limits and times for safe use of these agents. EPA believes that by rescinding the SNAP regulation's use conditions for halocarbon and inert gas agents, these agents will be used more efficiently for the following two reasons:

(1) The fire protection industry is familiar with NFPA standards and is accustomed to using the 2001 Standard in design, installation and use of systems with these agents, and will now only have to look to one source (the 2001 Standard) to determine conditions for safe use instead of looking to both the 2001 Standard and SNAP's exposure limits and times; and

(2) The recent revisions to the halocarbon exposure limits and times in NFPA 2001 (that is, incorporating use of PBPK model data to set concentrations and times) allow for more efficient use of the agents themselves. They allow for safe use of optimal concentrations of agents designed to extinguish a fire more quickly and thus reduce the development of hazardous breakdown products as the agents themselves are exposed to fire.

Relying on NFPA's 2001 Standard for the establishment of safe exposure limits and times for halocarbon and inert gas alternatives is consistent with the government's goal of adopting voluntary consensus standards where appropriate. EPA has served and plans to continue to participate in NFPA's Technical Committee on Halon Alternative Protection Options, the committee responsible for development of the 2001 Standard, in keeping with the government's goal of Federal agency participation in the development of voluntary consensus standards. These goals are outlined in Office of Management and Budget (OMB) Circular No. A-119 on Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities.

EPA is rescinding SNAP use conditions that limit human exposure to halocarbon and inert gases used as substitutes for halons in the total flooding end use because we believe the NFPA standard will provide necessary protection for human health and the environment. As required by section 612 of the Clean Air Act, the SNAP program will continue to: review halon alternatives to ensure that they reduce overall risks to human health and the environment; publish lists of acceptable and unacceptable substitutes; and prohibit the use of any substitute that may present adverse effects to human health or the environment (where EPA has identified an alternative that reduces overall risk and is currently or potentially available). In the future, we expect to defer to the NFPA and other standard-setting bodies where they establish appropriate voluntary consensus standards that are accepted and followed by the relevant industry.

As a result of our decision to rescind the use conditions described above, EPA is revising the SNAP listings for halocarbon and inert gas alternatives to include the following comment, “Use of this agent should be in accordance with the safety guidelines in the latest edition of the NFPA 2001 Standard for Clean Agent Fire Extinguishing Systems.” In the edition of NFPA 2001 that was published in March 2000, safety guidelines for halocarbon and inert gas agents are found in section 1-6, entitled “Safety.”

As described below under the heading “How Do the Regulations for SNAP Program Work?”, the SNAP program includes four possible listing decisions. An alternative may be listed as: (1) Acceptable with no restrictions; (2) acceptable with use conditions; (3) acceptable with narrowed use limits; or (4) unacceptable. Use conditions and narrowed use limits are two different types of regulatory restrictions that affect use of alternatives. Use conditions govern how an alternative may be used (for example, establishing maximum concentrations and times that people may be exposed to an agent). In contrast, narrowed use limits govern where an alternative may be used (for example, restricting use of an agent to nonresidential uses only).

Each of the inert gas agents previously listed as acceptable total flooding agents under SNAP were subject to use conditions that limit human exposure to the agents, but no other restrictions. As these use conditions are rescinded as of today's action, the inert gas agents now fall under the category of acceptable alternatives without restrictions. Most of the halocarbon agents previously listed as acceptable total flooding agents under SNAP were subject to use conditions that limit human exposure to the agents (with no other restrictions). Likewise, these now fall under the category of acceptable alternatives without restrictions. Acceptable substitutes without restrictions are not listed in appendix G to subpart G of part 82. However, you can find lists of acceptable substitutes on EPA's SNAP Program web site at http://www.epa.gov/ozone/title6/snap/lists/index.html. Table 1, below, summarizes today's acceptability listings.

Two of the halocarbon agents in the above table, HFC-134a and HCFC-22, are not addressed in NFPA's 2001 Standard. Currently, neither of these agents is used (outside of blends) in total flooding systems in the U.S. For either of these agents to be used as total flooding agents (outside of any blend containing these agents that is already addressed by NFPA 2001), a proposal would need to be submitted to NFPA to have the agent added to the 2001 Standard under NFPA's usual procedure for updating existing standards, and a total flooding system would need to be in compliance with any other local requirements. (NFPA's procedure for updating codes and standards is described above, under the heading “NFPA's Safety Standards for Total Flooding Agents.”)

As noted, in previous SNAP listings, most of the halocarbons that are alternatives to halons for use as total flooding agents were subject to use conditions that limit human exposure without any additional restrictions. However, three halocarbon agents (HFC-236fa, C 3 F 8 and C 4 F 10 ) that we previously listed as acceptable were also subject to narrowed use limits that restrict where these alternatives may be used (in addition to use conditions that limit human exposure to the agents). Although EPA is today rescinding the use conditions regarding safe exposure to HFC-236fa, C 3 F 8 and C 4 F 10 , the Agency is maintaining the narrowed use limits for these three agents. Therefore, these agents are still subject to restrictions under SNAP, and fall into the category of acceptable alternatives subject to narrowed use limits. The listings for these three agents are summarized in Table 2, below. EPA established the narrowed use limits imposed on the use of HFC-236fa, C 3 F 8 and C 4 F 10 to restrict the use of these agents because of their relatively long atmospheric lifetimes and high global warming potentials, which are particularly high in the case of the perfluorocarbons (PFCs) C 3 F 8 and C 4 F 10 (see Appendix H to subpart G of part 82).

Some agents have been listed in more than one appendix to subpart G of part 82. For example, when OSHA introduced standards for the use of C 3 F 8 and C 4 F 10 , EPA revised the SNAP listing for those agents and placed them in a new Appendix, which then contained all relevant information for those agents. Thus, although C 3 F 8 appeared both in Appendix B and appendix H, and C 4 F 10 appeared in both appendix A and appendix H, the listings in Appendices A and B for these agents were obsolete. Since we are revising the appendices to subpart G of part 82 at this time, we decided to leave only the more recent, complete decisions, found in appendix H, and to delete the obsolete listings in appendices A and B.

In reviewing the listings for total flooding agents, we found that there were a few agents that should be subject to a narrowed use limit, rather than subject to a use condition. For example, EPA had previously listed CF 3 I as “acceptable for use in normally unoccupied areas, subject to use conditions.” We had originally stated in our decision that it is acceptable only for use in normally unoccupied areas, as well as subject to use conditions for the exposure limits and egress times. Although we are removing the use conditions regarding exposure limits and egress times, we believe that it is still appropriate to restrict the use of CF 3 I to normally unoccupied areas. This is because we have not received information showing that this agent is safe to use in occupied areas. Consistent with our past practice for other substitutes, EPA now believes that this restriction should be included on the “narrowed use” list, rather than the “use condition” list. Thus, as an administrative matter, EPA is shifting CF 3 I, with the limit on use to normally unoccupied areas, to the narrowed use list. This shift does not modify the substantive requirements applicable to use of CF 3 I. (The same need to retain restrictions applies to some uses of the agent known as Gelled Halocarbon / Dry Chemical Suspension or Envirogel. Because there are additional actions that EPA is taking with respect to Envirogel and we believe it would be confusing to discuss our actions with respect to Envirogel in a piecemeal fashion, we discuss the retention of the restrictions as well as the other actions pertaining to Envirogel below in section II.D. of the preamble under the heading “How is EPA's Decision on the Acceptability of Envirogel (Gelled Halocarbon / Dry Chemical Suspension) Changing in Today's Rule?”. For that reason, Envirogel is not included on Table 2 below; Tables 5 and 6 reflect all of the actions that EPA is taking on Envirogel in this notice.)

Finally, we also are changing the wording of the listing for SF 6 to list it as “acceptable subject to narrowed use limits” with a narrowed use limit that it be used only as a discharge testing agent in military applications and in civilian aircraft. (As new alternatives are now available for discharge testing, EPA will re-assess the acceptability listing of SF 6 in this application as part of a future regulatory review.) Currently, this restriction is listed in the “use conditions” list and, as with CF 3 I, EPA believes that this restriction is more appropriately included in the narrowed use table. Thus, this also is a clarification of the limitations in the original decision, rather than a substantive change to the SNAP listings.

We also have slightly revised some information in the “comments” column, for the agents in Table 2 below. These are minor changes for consistency with current information and in presenting information about the Agency's decision. For example, we have added a note about the global warming potential and atmospheric lifetime of HFC-236fa to be consistent with the current comments for C 4 H 10 , C 3 F 8 , and SF 6 . We also removed an obsolete reference about ODP data for the agent CF 3 I.

As noted, the Agency is rescinding the SNAP use conditions that limit human exposure to halocarbons or inert gases used as total flooding agents, and EPA is not rescinding any other use restrictions on any other substitutes for halons at this time. For example, narrowed use limits on substitutes used as total flooding agents remain the same, such as restrictions that limit use of a substitute to normally unoccupied areas. Existing use restrictions for total flooding substitutes other than halocarbons and inert gases also are not affected by today's action. Use conditions and narrowed use limits for substitutes for halons used as streaming agents are unaffected by today's direct final rule.

Previously listed total flooding agents other than halocarbon and inert gas agents that are not addressed by the NFPA 2001 standard are not affected by today's action. These include Inert Gas/Powdered Aerosol Blend, Powdered Aerosol C, Powdered Aerosol A, Carbon Dioxide, Foam A, Water, and Water mist (using potable or natural sea water). Today's action does not affect the existing SNAP listings for these agents in any way (use restrictions and/or comments apply to the use of many of these agents; see 40 CFR part 82 Subpart G for complete listings). EPA may reconsider these listings in the future, depending upon the availability of technically feasible alternative methods to evaluate these other total flooding agents.

EPA does not intend to establish exposure limits or egress times as use conditions for halocarbon and inert gas fire suppressants used as total flooding agents in future SNAP submissions. Instead, for any fire suppressant to be used as a total flooding agent that was previously unlisted, the manufacturer would need to submit a proposal to NFPA to have the agent added to the 2001 Standard under NFPA's usual procedure for updating existing standards. (described above under the heading “NFPA's Safety Standards for Total Flooding Agents.”) A total flooding system would need to be in compliance with any other local requirements. The NFPA 2001 standard would take over the role of establishing exposure limits and egress times for total flooding agents.

As halocarbon or inert gas total flooding agents are submitted to the SNAP program in the future, EPA's regulations will continue to require the same information (including complete toxicological data) as has been required previously. The SNAP program will continue to evaluate these agents based on overall human health and environmental risks, and will publish listing decisions in the Federal Register . We plan to provide information on occupational exposure limits in future listing decisions, including the NOAEL and LOAEL. However, the SNAP listing would not specify exposure limits or egress times for halocarbon or inert gas total flooding agents; rather, we would expect submitters to request the NFPA 2001 committee to establish those values. A submitter would not need to receive exposure limits and egress times from the NFPA on their substitute, however, before EPA could decide on its acceptability under the SNAP program. To avoid confusion, we choose not to establish temporary exposure guidelines or use conditions under the SNAP program that could conflict with future, more appropriate exposure limits and egress times from the NFPA 2001 Committee. Not issuing use conditions on exposure for new agents also reduces administrative burden for the Agency and for submitters.

Importantly, we believe this approach will sufficiently protect public health and the environment. Generally, local fire codes reference NFPA standards where they exist. Therefore, we expect that the NFPA 2001 Committee will include new agents in the standard before new agents will be used. In addition, mentioning the NOAEL and LOAEL in SNAP decisions will assist users in assessing the health impacts of fire suppression agents, while avoiding potential conflicts with decisions of the NFPA committee. We expect that submitters of new agents will continue to work with the NFPA to have their agents included in the 2001 Standard, as has been the practice. We plan to participate in NFPA's voluntary consensus process on future editions of the 2001 Standard.

EPA previously listed HBFC-22B1 (tradename FM-100) as acceptable subject to use conditions for the total flooding end use for fire suppression in the March 18, 1994 SNAP rule. Since then, the manufacturer of HBFC-22B1 withdrew this fire suppression agent from the market because it was found to be a fetal toxin. Furthermore, this substitute has a high ozone depletion potential of 0.74, and its production was required to be phased out by January 1, 1996 (except for essential uses). Therefore, EPA is removing it from the list of acceptable substitutes and is listing it as an unacceptable substitute.

EPA reviewed the presentation of all listings for total flooding agents in the Code of Federal Regulations as part of rescinding use conditions for halocarbon and inert gas agents, as discussed above in section II.B. During that review, we decided that it was inappropriate to rescind the use conditions on HBFC-22B1 and list it as an acceptable substitute for halon 1301. We reasoned that if an agent is too toxic for the manufacturer to sell it, then the agent should be considered unacceptable under the SNAP program. In addition, because HBFC-22B1 has a relatively high ODP and because the manufacturer has withdrawn HBFC-22B1 from the market, we cannot consider this to be a viable substitute for halons that would help in the transition away from ozone depleting substances. Since listing this substitute as acceptable is contrary to the purpose of the SNAP program, we are listing it as an unacceptable substitute for halon 1301 in the total flooding end use in the fire protection sector. As a result of this listing, it will be unlawful to use HBFC-22B1 as a fire suppression agent as of the effective date of this regulation. This decision is summarized below in Table 3.

Because this agent has not been produced for more than five years, because it is not available for sale, and because we believe no one is currently using this agent, we expect that our decision will not have a substantial impact on the industry or users. Because there should be little or no impact and because the manufacturer has recognized its toxicity, we expect our decision will not be controversial. Therefore, EPA is giving notice today of our decision to find HBFC-22B1 unacceptable without prior proposal.

A manufacturer of fire suppression agents submitted the new agent Halotron II for review by the SNAP program. The submitter for Halotron II requested that it be listed only for areas that are not normally occupied. EPA finds Halotron II acceptable as a substitute for halon 1301 for use as a total flooding agent in the fire suppression and explosion protection sector, subject to the following narrowed use limits: it may be used only in areas that are not normally occupied. This agent is a blend of halocarbon and other gases.

EPA has reviewed the potential environmental impacts of this blend and concluded that, by comparison to halon 1301 and other substitutes for halon 1301, this blend reduces overall risk to the environment. The components of this blend have negligible ozone-depletion potential. EPA's review of all of the environmental and human health impacts of this blend is contained in the public docket for this rulemaking. This listing decision is summarized in Table 4, below.

EPA is adding Halotron II to the SNAP lists without prior proposal because the Agency views this as a non-controversial action and anticipates no adverse comment. We stated in the original SNAP rule that for substitutes that are deemed acceptable subject to use restrictions (use conditions and/or narrowed use limits), or for substitutes deemed unacceptable, we would publish these decisions as proposals to allow the public opportunity to comment on the decision. Although EPA is restricting use of this agent to areas that are not normally occupied, this limitation was requested by the submitter. Thus, we do not expect adverse comment. By listing Halotron II through direct final rulemaking, the Agency is expediting the addition of this agent to the list of acceptable substitutes, thereby providing greater opportunities for the public to transition from the use of halon to non-ozone-depleting alternatives.

Envirogel (Gelled Halocarbon/Dry Chemical Suspension) is a blend of any of several hydrofluorocarbons (HFCs) with an additive. Today EPA is listing Envirogel as an acceptable substitute for total flooding in the fire suppression and explosion protection sector, using any of the HFCs that are addressed by NFPA's 2001 Standard.

EPA previously listed Envirogel as an acceptable substitute subject to use conditions for halon 1301 as a total flooding agent only in normally unoccupied areas in the Federal Register on June 13, 1995 (60 FR 31092) under the generic name Gelled Halocarbon/Dry Chemical Suspension. 1 Although we used a generic name to list this agent in the past, today we are listing the agent under its trade name, Envirogel.

The submitter of this agent originally requested SNAP review for unoccupied areas only. The submitter of Envirogel later re-submitted the agent with an ammonium polyphosphate additive for use in occupied areas. The SNAP program evaluated this agent for use in occupied areas and has determined that it is acceptable for such use. Thus, in today's action EPA is determining that Envirogel with the ammonium polyphosphate additive is acceptable for use in both occupied and unoccupied areas.

The original SNAP listing for this agent found it acceptable for use only in unoccupied areas, subject to use conditions on the exposure concentration and egress time, as discussed above in section II.B of the preamble (“How is EPA Changing the SNAP Program's Existing Substitute Listings for Fire Suppression and Explosion Protection to Coordinate with the NFPA 2001 Standard?”). Today's action rescinds those use conditions. Although Envirogel itself is not listed in NFPA's 2001 Standard, the hydrofluorocarbon gases that are used in this agent are addressed by the 2001 Standard. Use of Envirogel should be in accordance with the exposure limits set forth in NFPA 2001 for the particular hydrofluorocarbon gas used.

The original SNAP listing for this agent (60 FR 31092; June 13, 1995) included a discussion in the preamble regarding the use of either of two different additives (ammonium polyphosphate or monoammonium phosphate) with halocarbon gases. Note that today's decision, which broadens the acceptability of this agent to include use in occupied areas, only applies to the ammonium polyphosphate additive. Before this agent could be used in occupied areas with any additive other than ammonium polyphosphate, it would need separate review by the Agency. Envirogel used with monoammonium phosphate additive, when used as a total flooding agent as a substitute for halon 1301, is still subject to narrowed use limits.

Consistent with the discussion of CF 3 I in section II.B of the preamble above, we are revising the previous listing from acceptable subject to use conditions (“acceptable for use in normally unoccupied areas”) to acceptable subject to narrowed use limits (“use only in normally unoccupied areas”). You can find the revised regulatory language below in Table 6. The EPA considers this an administrative revision that has no substantive implication for the use of Envirogel.

As discussed above, EPA is rescinding the use conditions on exposure limits for each of the SNAP-listed halocarbon fire protection agents that are addressed by NFPA's 2001 Standard. Use of Envirogel (Gelled Halocarbon / Dry Chemical Suspension) should be in accordance with the exposure limits set forth in the NFPA 2001 Standard, for whichever HFC gas is employed. The listing decisions for Envirogel are summarized in Tables 5 and 6, below.

Envirogel (Gelled Halocarbon/Dry Chemical Suspension) has already been listed as an acceptable substitute under SNAP for total flooding applications. In today's decision, EPA does not impose any additional restrictions on the use of this agent, but rather is broadening the scope of its use as a substitute by finding Envirogel with ammonium polyphosphate additive to be acceptable as a substitute for halon 1301 for use as a total flooding agent in occupied areas. Thus, we do not expect adverse comment and EPA is giving notice today of our decision to broaden the scope of the existing SNAP listing for Envirogel without prior proposal.

Today's action revises many of the existing SNAP listings for total flooding halon substitutes. EPA is taking this opportunity to explain how today's listings will fit into the existing SNAP listings in the CFR, to avoid any confusion that might arise when comparing today's listings with previous SNAP listings.

The SNAP program has historically published listing decisions in separate tables depending on decision category. That is, separate tables have been published for substitutes that are deemed acceptable with no restrictions, for substitutes deemed acceptable subject to use conditions, for substitutes deemed acceptable subject to narrowed use limits, and for unacceptable substitutes. For substitutes that are subject to both use conditions and narrowed use limits ( i.e., HFC-236fa, C 3 F 8 and C 4 F 10 ), the SNAP program has historically included such substitutes in two separate tables (that is, in a table of substitutes subject to use conditions as well as in a table of substitutes subject to narrowed use limits).

When the original regulation implementing the SNAP program was published in March 1994, EPA also published the initial lists of substitutes (59 FR 13044). In that rulemaking, substitutes deemed acceptable subject to use restrictions (use conditions or narrowed use limits) or unacceptable were published in an appendix to the regulation itself, and are therefore codified into the Code of Federal Regulations (CFR) as appendices to Subpart G of 40 CFR part 82. By contrast, substitutes that were deemed acceptable with no restrictions were only listed within the language of the preamble to the rule. Preamble language does not become codified in the CFR, and thus listings of substitutes that were deemed acceptable with no restrictions were not codified in the CFR. However, you can find lists of acceptable substitutes on the SNAP program web site or you may obtain a copy from EPA's Stratospheric Protection Hotline, as described below in the section I. C., “Where Can I Get Additional Information about the SNAP Program? ”

Subsequent SNAP listing decisions have been published in the same manner. That is, acceptable substitutes with no restrictions have continued to be listed only in preamble language (and thus not codified in the CFR), while substitutes in all other decision categories have continued to be published as additional appendices to the SNAP regulation (and 40 CFR part 82 subpart G has been amended to include these additional appendices). Each time a SNAP rulemaking has been published that would add substitutes to the lists of acceptable substitutes with restrictions or unacceptable substitutes, additional appendices have simply been added at the end of the existing appendices in Subpart G. Note that even in cases where a new listing modifies a previous listing, the new listings have simply been appended to the existing appendices in Subpart G without removal of previous listings. Thus, users generally should look to the latest appendices found in Subpart G to be sure that they are aware of the most current SNAP requirements for a particular substitute.

By rescinding the use conditions for previously listed halocarbon and inert gas agents today, many agents that had previously been listed in Subpart G as acceptable, subject to use conditions, now fall into the category of acceptable without restrictions. In keeping with the manner in which SNAP listing decisions have historically been published, we summarized these substitutes within this preamble (see Table 1, above). Under past practice, these listings would not become part of the regulations at 40 CFR part 82 subpart G because they merely present acceptable substitutes and do not impose any restrictions. Similarly, in today's rule we are removing from the Code of Federal Regulations those substitutes for halon 1301 that previously were subject to use conditions for use as total flooding agents and now are acceptable without restriction. These are the halocarbons or inert gases that are listed in the NFPA 2001 standard. As a result, for appendices A, C, H and I, we are removing the entire table for substitutes for halons for use as total flooding agents subject to use conditions. For appendix B, we are revising the table for total flooding agents subject to use conditions so that it will only include those total flooding agents that are neither halocarbons nor inert gases.

Envirogel (Gelled Halocarbon/Dry Chemical Suspension) was previously listed in appendix B of subpart G as an acceptable substitute subject to use conditions for use as a total flooding agent. That listing is now being deleted from appendix B. Today we are listing Envirogel with the ammonium polyphosphate additive as an acceptable substitute for halon 1301 as a total flooding agent. Because this listing does not require use conditions or narrowed use limits, it will not appear in the regulatory language at the end of this action and will not appear in the Code of Federal Regulations. We are also issuing a new listing for Envirogel with any additive other than ammonium polyphosphate as an acceptable substitute subject to narrowed use limits for use as a total flooding agent. This listing will appear in the new appendix J to Subpart G in the regulatory language at the end of this action and in the Code of Federal Regulations.

Three of the halocarbon substitutes for which the use conditions have been rescinded today (HFC-236fa, C 3 F 8 and C 4 F 10 ) were previously listed as acceptable subject to both use conditions and narrowed use limits. Although no longer subject to use conditions, these three substitutes still fall into the category of acceptable subject to narrowed use limits (summarized in Table 2, above). The previous listings for these agents will still appear in appendix H of Subpart G, with revisions to delete the use conditions and to refer to the NFPA 2001 standard, while earlier, outdated decisions for C 4 F 10 from Appendix A and for C 3 F 8 from appendix B will be removed. The narrowed use limits for these three agents include a requirement for a demonstration that other alternatives are not technically feasible. Part of that demonstration references “applicable use conditions.” Those use conditions for exposure limits and egress times are being rescinded in today's rule and replaced with a recommendation to observe the guidelines in the NFPA 2001 Standard. Therefore, in our listings in today's rule, we are changing the second part of the conditions to refer to “safety guidelines in the latest edition of the NFPA 2001 Standard for Clean Agent Fire Extinguishing Systems,” rather than referring to “applicable use conditions.”

In summary, we are making the following changes in regulatory text:

• Deleting the existing tables for total flooding agents that are acceptable subject to use conditions in appendices A, C, H and I.

• Deleting the existing tables for total flooding agents that are acceptable subject to narrowed use limits in appendix A.

• Revising the existing table for total flooding agents that are acceptable subject to use conditions in appendix B.

• Revising existing tables for total flooding agents that are acceptable subject to narrowed use limits in appendices B and H.

• Adding a new appendix J with tables for total flooding agents that are acceptable subject to narrowed use limits and for unacceptable total flooding agents.

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, 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 by State, local, and tribal governments, in the aggregate, or by 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 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 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. Section 204 of the UMRA requires the Agency to develop a process to allow elected state, local, and tribal government officials to provide input in the development of any proposal containing a significant Federal intergovernmental mandate.

Before 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 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. Because this rule imposes no enforceable duty on any State, local or tribal government it is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has also determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments; therefore, EPA is not required to develop a plan with regard to small governments under section 203. Finally, because this rule does not contain a significant intergovernmental mandate, the Agency is not required to develop a process to obtain input from elected state, local, and tribal officials under section 204.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether this regulatory action is significant and therefore subject to OMB review and the requirements of the Executive Order. The Order defines significant regulatory action as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Pursuant to the terms of Executive Order 12866, OMB notified EPA that it considers this a “significant regulatory action” within the meaning of the Executive Order and EPA submitted this action to OMB for review. Changes made in response to OMB suggestions or recommendations will be documented in the public record.

EPA has determined that this final rule contains no information requirements subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , that are not already approved by the Office of Management and Budget (OMB). OMB has reviewed and approved two Information Collection Requests (ICRs) by EPA which are described in the March 18, 1994 rulemaking (59 FR 13044, at 13121, 13146-13147) and in the October 16, 1996 rulemaking (61 FR 54030, at 54038-54039). These ICRs included five types of respondent reporting and record-keeping activities pursuant to SNAP regulations: submission of a SNAP petition, filing a SNAP/TSCA Addendum, notification for test marketing activity, record-keeping for substitutes acceptable subject to narrowed use limits, and record-keeping for small volume uses. The OMB Control Numbers are 2060-0226 and 2060-0350.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires 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 direct final 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. This direct final rule will remove regulatory restrictions on the use of certain fire suppressants and replace them with a recommendation to use industry standards. These standards are typically already required by state or local fire codes, and this rule does not require tribal governments to change their regulations. Thus, Executive Order 13175 does not apply to this rule.

EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule. EPA has also determined that this rule will not have a significant economic impact on a substantial number of small entities. For purposes of assessing the impact of today's rule on small entities, small entities are defined as (1) a small business that produces or uses fire suppressants as total flooding agents with 500 or fewer employees or total annual receipts of $5 million or less; (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 today's final rule on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. Primarily, the rule removes regulatory restrictions on the use of most fire-suppressants used as total flooding agents and, instead, defers to the voluntary consensus standards set by the National Fire Protection Association. Thus, users of these substitutes are being relieved of regulatory constraints. For this action, EPA is also changing the listing of a substitute from acceptable subject to use conditions to unacceptable. This agent, HBFC-22B1, was phased out of production more than five years ago, except for a few essential uses. Later, the manufacturer withdrew it from the market because of its toxicity. Because this agent is generally unavailable and because of the potential liability associated with its toxic effects, EPA believes it is extremely unlikely that anyone is currently using this agent. We expect that listing this agent as an unacceptable substitute will have no significant impact on a substantial number of small entities. With respect to EPA's decision on Halotron II, EPA is finding it acceptable for all uses requested by the manufacturer. Moreover, the manufacturer of the new fire suppressant, Halotron II, has not yet sold it, so today's action does not affect, in any way, current usage. For Envirogel, today's action removes the use conditions and narrowed use limit on Envirogel with one additive, while maintaining the existing narrowed use limit on Envirogel used with all other additives. Thus, EPA is removing several regulatory constraints on the current ability of any entity, including small entities, to use this substitute. In addition, today's rule prevents potential conflicts between EPA regulations and existing state, local and tribal fire code requirements that incorporate NFPA standards by referring to standards of the NFPA.

Although this final rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this rule on small entities. By introducing new substitutes and removing regulatory restrictions on a number of acceptable substitutes, today's rule gives additional flexibility to small entities that are concerned with fire suppression. EPA also has worked closely together with the National Fire Protection Association, which conducts regular outreach with, and involves small state, local, and tribal governments in developing and implementing relevant fire protection standards and codes.

Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The acceptability listings and the removal of use conditions on the use of halocarbon and inert gas fire suppressants in this final rule primarily apply to the workplace, and thus, do not put children at risk disproportionately. The Agency finds HCFC-22B1 unacceptable in today's action. This agent is a fetal toxin, and thus, could be considered to put children at risk disproportionately. However, because this agent is generally unavailable and because of the potential liability associated with its toxic effects, EPA believes it is extremely unlikely that anyone is currently using this agent. Therefore, our action on this chemical is not likely to change the risk to children. This rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866 and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in 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 EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This rulemaking involves technical standards. EPA has decided to use the NFPA 2001 Standard on Clean Agent Fire Extinguishing Systems, 2000 edition, a voluntary consensus standard developed by the National Fire Protection Association (NFPA). You can obtain copies of this standard by calling the NFPA's telephone number for ordering publications at 1-800-344-3555 and requesting order number S3-2003-00. The NFPA 2001 standard meets the objectives of the rule by setting scientifically-based guidelines for exposure to halocarbon and inert gas agents used to extinguish fires. In addition, EPA has worked in consultation with OSHA to encourage development of technical standards to be adopted by voluntary consensus standards bodies.

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

This direct final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This final rule will remove regulatory restrictions on the use of certain fire suppressants and replace them with a recommendation to use industry standards. These standards are typically already required by state or local fire codes, and this rule does not require state, local, or tribal governments to change their regulations. Thus, Executive Order 13132 does not apply to this rule.

Under section 307(b)(1) of the Act, EPA finds that these regulations are of national applicability. Accordingly, judicial review of the action is available only by the filing of a petition for review in the United States Court of Appeals for the District of Columbia Circuit within sixty days of publication of the action in the Federal Register . Under section 307(b)(2), the requirements of this rule may not be challenged later in the judicial proceedings brought to enforce those requirements.

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Primarily, the rule removes regulatory restrictions on the use of most fire-suppressants used as total flooding agents and, instead, defers to a voluntary consensus standard. Thus, users of these substitutes are being relieved of regulatory constraints. In addition, the rule allows wider use of substitutes, providing greater flexibility for industry. For the one substitute not acceptable, EPA believes it is unlikely that anyone is currently using this agent because this agent is generally unavailable and because of the potential liability associated with its toxic effects. Further, we have concluded that this rule is not likely to have any adverse energy effects.

The Congressional Review Act (CRA), 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). This rule will be effective on April 1, 2002.

This is a summary of the Memorandum Opinion and Order, CC Docket No. 98-67, FCC 01-371, adopted December 17, 2001 and released December 21, 2001. The full text of the MO&O is available for inspection and copying during the weekday hours of 9 a.m. to 4:30 p.m. in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554, or copies may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Suite CY-B402, Washington, DC 20554, phone (202) 863-2893.

1. Title IV of the Americans with Disabilities Act of 1990 (ADA) requires the Commission to ensure that TRS is available to the extent possible and in the most efficient manner to persons with hearing or speech disabilities in the United States. The Commission first ordered all carriers to provide TRS services nationwide on July 26, 1991. The rules for cost recovery were established in the TRS Third Report and Order, 58 FR 39671 (July 26, 1993). The Commission's rules require TRS providers to submit annually to the TRS Fund Administrator the data necessary to compute the TRS Fund requirements and payments. The administrator uses these data to develop formulas that are filed annually with the Commission. Payments to relay service providers are distributed based on the approved formulas. The compensation formulas are based on conversation minutes of use for completed interstate TRS calls. The TRS Third Report and Order required that the cost of interstate TRS be recovered from all subscribers of every interstate service, utilizing a shared funding cost recovery mechanism. The TRS Third Report and Order further mandated that every carrier providing interstate telecommunications services contribute to the TRS Fund on the basis of gross interstate and international telecommunications revenues. In its July 1998 Biennial Review streamlining carrier reporting requirements, the Commission changed the contribution base from gross interstate and international telecommunications revenues to end user interstate and international telecommunications revenues.

2. On March 6, 2000, the Commission released the Improved TRS Order, 65 FR 38490 (June 21, 2000), which amended the rules governing the delivery of TRS by expanding the kinds of relay services available to consumers and by improving the quality of relay services. The Improved TRS Order changed many of the definitions and standards for traditional TRS and added STS and Spanish relay services as requirements. It also permitted the recovery of VRS costs through the interstate TRS funding mechanism. Finally, the Improved TRS Order directed the Advisory Council and the Fund Administrator to develop recommendations for how the compensation formula for each service should be structured.

3. On November 9, 2000, the Advisory Council and the Fund Administrator submitted recommended guidelines outlining proposed cost recovery procedures for traditional TRS, STS, and VRS. The recommendations were originally placed on Public Notice on December 6, 2000, with comments due on January 5, 2001 and reply comments due on January 19, 2001. On July 9, 2001, a public notice was placed in the Federal Register , seeking additional comment on the recommendations. 66 FR 35765 (July 9, 2001).

4. On April 6, 2001, Hamilton filed a request for clarification and temporary waiver of certain aspects of the Improved TRS Order relating to the provision of VRS. Hamilton requested clarification and temporary, two-year waivers of portions of §§ 64.603 and 64.604 of the Commission's rules. On July 16, 2001 the Common Carrier Bureau (Bureau) issued a public notice seeking comment on Hamilton's waiver request.

5. The Advisory Council and the Fund Administrator recommended that the Commission: (1) Continue to use the current national average costing and pricing methodology for the annual development of the interstate cost recovery reimbursement rate; (2) review the TRS Center Data Request to ensure that various sections and categories continue to be appropriate and up to date; (3) use the same allocation methodology in place today for allocating toll-free and 900 call minutes between interstate and intrastate demand; and (4) direct that Spanish relay costs be collected separately to test whether they are significantly different from English relay costs, and continue to reimburse providers on completed conversation minutes at a single national average reimbursement rate if there is no difference between the Spanish and English relay per-minute costs. The Commission adopts all except the fourth of these recommendations.

6. The Commission believes that the current average costing methodology represents an efficient and reasonable method of compensating eligible providers for the cost of furnishing interstate TRS. The Commission further believes that the average costing methodology will promote efficiency and that any cost increases incurred by providers will be minimal. Although the Commission believes that the current TRS Center Data Request captures all of the changes that were established by the Improved TRS Order, the Commission wants to ensure that all providers are fairly compensated. The Commission therefore directs the TRS administrator to review the TRS Center Data Request, and report to Bureau on an ongoing basis, any changes necessary to ensure that TRS providers are fairly compensated for additional costs imposed by the Improved TRS Order. The Commission also agrees with the Advisory Council and the Fund Administrator's recommendation that the same minutes of use allocation methodology in place for toll-free call minutes should be used for 900 call minutes. The Commission adopts the toll-free minutes methodology and find that it should be applied to 900 calls as well.

7. At this time, the Commission sees no need to adopt the Advisory Council and the Fund Administrator's recommendation that Spanish relay costs initially be collected separately and tested to determine whether they are significantly different from English relay costs. Because there is no evidence in the record that Spanish relay costs will differ significantly from English relay costs, the Commission conclude that providers should be reimbursed on completed conversation minutes for both English and Spanish relay costs at a single national average reimbursement rate. If, however, TRS providers believe that their costs for providing Spanish and English relay will differ significantly, they may track these data separately to verify that the costs are, in fact, different. If any TRS provider can demonstrate that the costs are different and, thus, that the services should be reimbursed at different rates, it may petition the Commission to establish different reimbursement rates for English and Spanish relay.

8. The Improved TRS Order required STS to be in place by March 1, 2001. STS uses CAs who have been specially trained to understand different speech patterns, and to repeat the words spoken by the person with the speech disability. The Advisory Council and the Fund Administrator made the following recommendations for STS cost recovery: (1) The same cost recovery methodology used for computing the reimbursement rate in place today for traditional TRS interstate cost recovery could be used to develop the STS reimbursement rate; (2) due to its unique characteristics, a separate reimbursement rate based on STS costs and minutes should be calculated; (3) the TRS Center Data Request should be expanded to include specific STS sections to capture the costs and minutes separately from traditional TRS or VRS; and (4) providers should be reimbursed for completed conversation minutes at the national average reimbursement rate for STS. The Commission adopts each of these recommendations.

9. The Commission favors the national average per minute methodology used for traditional TRS and believe it should be applied to STS as well. The Commission also adopts a separate per-minute national average compensation formula for STS and orders the TRS administrator to develop annually a national average STS reimbursement rate for compensating STS providers. As with traditional TRS, each provider of STS services will be compensated at the national average rate for every completed conversation minute. Given that STS service is of a more recent origin, the Commission does not yet have sufficient data to conduct an up-front evaluation of its costs. Consequently, the Commission adopts the Advisory Council and the Fund Administrator's recommendation that the TRS Center Data Request be expanded to capture separately STS costs and minutes. The Commission therefore orders the TRS administrator to expand the TRS Center Data Request to include specific sections to capture STS costs and completed conversation minutes for STS.

10. The Improved TRS Order did not require VRS, but did allow the costs of intrastate and interstate costs for VRS to be reimbursed from the interstate TRS Fund while the Commission continues to evaluate the service. The Advisory Council and the Fund Administrator made the following four recommendations with respect to VRS cost recovery: (1) The same methodology for rate development in place today for traditional TRS interstate cost recovery could be used to develop the VRS reimbursement rate; (2) providers should be reimbursed based on completed conversation minutes at a national average reimbursement rate; (3) the TRS Center Data Request should be expanded to include specific VRS sections to capture VRS costs and demand separately; and (4) due to its unique characteristics, a separate reimbursement rate based on VRS costs and demand should be calculated.

11. The Commission agrees with the Advisory Council and the Fund Administrator's recommendation that due to the unique characteristics of VRS, a separate reimbursement rate for VRS should be calculated. The Commission agrees with the Advisory Council and the Fund Administrator's recommendation that the TRS Center Data Request should be expanded to include specific sections to capture separately VRS costs and minutes for this service. The data provided to NECA by VRS providers demonstrate that VRS costs and payment requirements are materially different from those for traditional TRS. In light of the differences in technology and the reportedly higher cost associated with providing VRS, the Commission will require NECA to expand the TRS Data Request to include data that are specific to VRS. Thus, the Commission adopts these two aspects of the Advisory Council and the Fund Administrator's Recommendation regarding cost recovery for VRS.

12. The Commission declines at this time, however, to adopt permanently the Advisory Council and the Fund Administrator's recommendations to use the same methodology for rate development in place today for traditional TRS interstate cost recovery, and to develop a VRS reimbursement rate based on completed conversation minutes of use at a national average reimbursement rate. Although the national average compensation methodology has all the benefits that we described above, the Commission is not convinced that this methodology will provide adequate incentives to carriers to provide video relay services. The Commission finds that additional comments on this recommendation are necessary and seek comment in the Further NPRM related to this MO&O (Published elsewhere in this issue of the Federal Register .).

13. In the interim, the Commission directs the TRS administrator to establish an interim VRS cost recovery rate using the average per minute compensation methodology used for traditional TRS. The interim rate shall be in effect until such time that the Commission is able to collect and assess additional data regarding what the permanent VRS compensation methodology should be.

14. In this MO&O the Commission clarifies that § 64.603 of the Commission's rules mandates the provision of STS generally, this mandate does not extend to relay service providers in their provision of VRS because VRS is in its infancy. Because the provision of VRS is not mandatory at this time, the Commission does not wish to make it more burdensome for the providers that wish to provide VRS on a voluntary basis. If, however, VRS providers choose to offer speech-to-speech service they will be eligible for reimbursement from the TRS fund. As VRS is deployed and demand for the service increases, the Commission may reexamine this issue.

15. The Commission also clarifies that, under the current rules, VRS providers are not required to provide Spanish relay service at this time. The Commission find that because VRS is still in its infancy and is not yet required, it is not feasible to require that it be provided in languages other than American Sign Language (ASL). If, however, VRS providers choose to offer Spanish relay service they will be eligible for reimbursement from the TRS fund. As Spanish relay services are deployed and demand for the service increases, the Commission may reexamine this issue.

16. This MO&O contains some new information collections for the cost recovery mechanism, which will be submitted to OMB for approval, as prescribed by the Paperwork Reduction Act.

17. As required by the Regulatory Flexibility Act of 1980, as amended, (RFA), 5 U.S.C. 603, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Federal Register summary for the Interstate Fund Advisory Council and the TRS Fund Administrator's Recommended TRS Cost Recovery Guidelines. The Commission sought written public comment on the proposals in the cost recovery guidelines, including comment on the IRFA. The comments received addressed only the general recommendations, not the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. 5 U.S.C. 604.

18. This proceeding was initiated to formulate an appropriate method of cost recovery for TRS, VRS and STS relay service providers. These cost recovery methods take into account changes in the TRS market and technology as well as the development of the new VRS and STS services. The new cost recovery guidelines will allow all relay providers to efficiently and effectively recover their reimbursable costs. Such reimbursement will also encourage the development of new technologies to aid individuals with speech and hearing disabilities.

19. No comments were filed in response to the IRFA in this proceeding. The Commission has nonetheless considered any potential significant economic impact of the rules on small entities. The comments filed in this proceeding address the recommendations of the Interstate Fund Advisory council and the TRS Fund Administrator and do not specifically address small entities.

20. 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 proposed rules, if adopted. 5 U.S.C. 604(a)(3). The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 5 U.S.C. 601(3). A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 15 U.S.C. 632. We note that any small entities affected by action taken herein should not be adversely affected. Furthermore, like all other entities affected, this action aids small businesses by allowing them to recover costs for providing relay services. Below, we further describe and estimate the number of small entity licensees and regulatees that may be affected by these rules. The most reliable source of information regarding the total numbers of certain common carrier and related providers nationwide, as well as the numbers of commercial wireless entities, appears to be data the Commission publishes annually in its Telecommunications Industry Revenue report, regarding TRS.

21. TRS Providers. Neither the Commission nor the SBA has developed a definition of “small entity” specifically applicable to providers of telecommunications relay services (TRS). The closest applicable definition under the SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. The SBA defines such establishments to be small businesses when they have no more than 1,500 employees. According to the FCC's most recent data, there are approximately 12 interstate TRS providers, which consist of interexchange carriers, local exchange carriers, state-managed entities, and non-profit organizations. Approximately five or fewer of these entities are small businesses. The FCC notes that these providers include several large interexchange carriers and incumbent local exchange carriers. Some of these large carriers may only provide TRS service in a small area but they nevertheless are not small business entities. Consequently, the FCC estimates that there are fewer than 5 small TRS providers that may be affected by the proposed rules, if adopted.

22. Wireline Carriers and Service Providers. The SBA has developed a definition of small entities for telephone communications companies except radiotelephone (wireless) companies. The Census Bureau reports that there were 2,321 such telephone companies in operation for at least one year at the end of 1992. According to the SBA's definition, a small business telephone company other than a radiotelephone company is one employing no more than 1,500 persons. All but 26 of the 2,321 non-radiotelephone companies listed by the Census Bureau were reported to have fewer than 1,000 employees. Thus, even if 26 of these companies had more than 1,500 employees, there would still be 2,295 non-radiotelephone companies that might qualify as small entities or small incumbent local exchange carriers (LECs). The FCC does not have data specifying the number of these carriers that are not independently owned and operated, and thus are unable at this time to estimate with greater precision the number of wireline carriers and service providers that would qualify as small business concerns under the SBA's definition. Consequently, the FCC estimates that fewer than 2,295 small telephone communications companies other than radiotelephone companies are small entities or small incumbent LECs.

23. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (i.e., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” 15 U.S.C. 632. The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on FCC analyses and determinations in other, non-RFA contexts.

24. The cost recovery requirements adopted herein should not require additional recordkeeping requirements for relay service providers. Providers have already been using similar methods to recover costs for traditional TRS and these methods are also similar to the new STS and VRS cost recovery guidelines. Furthermore, we are not mandating specific recordkeeping and compliance requirements. Rather, we are informing carriers that if they are seeking reimbursement there are guidelines to follow. How they record their data, however, is the carriers' choice. If any additional costs are imposed, they should be minimal because the tracking procedures are similar to those already in place for traditional TRS. Furthermore, these costs will impose no greater burden on small entities because all carriers must provide the same data for cost recovery. In addition, these measures will promote more efficient service and allow the TRS providers to be reimbursed more accurately for their costs, thus negating any minimal costs imposed by these requirements. Furthermore, the money received by small entities will enable them to more effectively compete in other areas such as the development of new technologies.

25. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 5 U.S.C. 603(c).

26. The Commission concludes that the cost recovery guidelines adopted herein will have no adverse economic impact on small entities because these rules are designed to allow all providers, including all small entities to be accurately reimbursed. Furthermore, the Advisory Council, which proposed guidelines for the rules herein, consists of members of state regulatory bodies, relay users, members of the disabilities community, large and small TRS providers, and large and small TRS contributors. As a result, the cost recovery measures adopted herein are the result of input from the industry, including small business entities.

27. The Commission considered certain alternatives and found the measures adopted herein to be the most appropriate. For example, for Spanish language relay, we considered the alternative of requiring these costs to be collected separately and tested to determine whether they are significantly different from English relay costs. After careful analysis, however, we concluded that Spanish and English relay costs were sufficiently similar to calculate reimbursement based on completed conversation minutes for both Spanish and English relay.

28. In addition, because of the unique characteristic of the developing VRS market, we declined to adopt permanently the alternatives suggested by the Advisory Council and the Fund Administrator, i.e. the recommendation to use the same methodology for rate development in place today for traditional TRS interstate cost recovery for the development of a VRS reimbursement rate. We also declined to develop, as an alternative, a VRS reimbursement rate based on completed conversation minutes of use at a national average reimbursement rate. Although the national average compensation methodology has all the benefits that we described above, we are not convinced that this methodology will provide adequate incentives to carriers to provide video relay services. Instead, we found that additional comments on these recommendations are necessary and seek comment in the Further NRPM related to this MO&O (Published elsewhere in this issue of the Federal Register .).

29. Accordingly, this MO&O directs the TRS administrator to adopt an interim VRS cost recovery rate using the average per minute compensation methodology used for traditional TRS. Such an interim methodology will allow the Commission time to further consider VRS cost recovery and evaluate the comments on these recommendations that will be received in response to the Further NPRM related to this MO&O.

30. Thus, while significant alternatives have been considered, we believe that the actions taken herein are in the best interests of all entities, including small businesses.

31. The Commission will send a copy of the Memorandum Opinion and Order , including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the Memorandum Opinion and Order including FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Memorandum Opinion and Order and FRFA (or summaries thereof) will also be published in the Federal Register . 5 U.S.C. 604(b).

32. Pursuant to the authority contained in § 64.604 of the Commission's Rules, 47 CFR 64.604, and in sections 1, 2, 4, 225, 255 and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154, 225, 255, 303(r) the recommendations of the Advisory Council and the Fund Administrator relating to traditional TRS and STS are adopted to the extent described herein.

33. Pursuant to the authority contained in § 64.604 of the Commission's Rules, 47 CFR 64.604, and in sections 1, 2, 4, 225, 255 and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154, 225, 255, 303(r) the recommendations of the Advisory Council and the Fund Administrator relating to the need for a separate reimbursement rate for VRS and expansion of the TRS Data Center Request to include specific sections for VRS reporting are adopted as described herein.

34. Pursuant to the authority contained in § 64.604 of the Commission's Rules, 47 CFR 64.604, and in sections 1, 2, 4, 225, 255 and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154, 225, 255, 303(r) the TRS administrator shall use the TRS reimbursement rate methodology, on an interim basis, to develop the VRS reimbursement rate, pending further action by the Commission.

35. Pursuant to the authority contained in § 64.603 of the Commission's Rules, 47 CFR 64.603, and in sections 1, 2, 4, 225, 255 and 303(r), of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154, 225, 255, 303(r) § 64.603 of the Commission's rules does not require VRS providers to offer Speech-to-Speech services or Spanish relay services at this time.

36. The collections of information contained herein are contingent upon approval by the Office of Management and Budget and will go into effect upon announcement in the Federal Register .

37. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Memorandum Opinion and Order , including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of Small Business Administration.

This final rule removes DFARS requirements pertaining to contractor reporting on employment of veterans. The DFARS requirements were published as an interim rule at 63 FR 11850 on March 11, 1998. The DFARS text is no longer necessary, because the reporting requirements were added to the Federal Acquisition Regulation in Item IV of Federal Acquisition Circular 2001-01 on October 22, 2001 (66 FR 53487).

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the rule merely eliminates requirements that duplicate those found in the Federal Acquisition Regulation.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

A memorandum of understanding between the Government of the Swiss Confederation and the Government of the United States provides for both governments to remove barriers to procurements of conventional defense supplies produced in the other country, and to accord to industries in the other country treatment no less favorable in relation to procurement than is accorded to industries of its own country. Therefore, DoD has determined that it is inconsistent with the public interest to apply the restrictions of the Buy American Act to the acquisition of defense equipment produced or manufactured in Switzerland. This final rule amends DFARS 225.872-1 to add Switzerland to the list of countries for which DoD has made such public interest determinations, and to remove Switzerland from the list of countries for which exemption from the Buy American Act is permitted only on a purchase-by-purchase basis.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

This final rule will not have a significant effect beyond the internal operating procedures of DoD. Therefore, publication for public comment is not required. However, DoD will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should cite DFARS Case 2001-D019.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

DoD uses the contract clause at DFARS 252.229-7003, Tax Exemptions (Italy), when contract performance will be in Italy. This rule amends the clause at DFARS 252.229-7003 to update the information pertaining to tax exemptions that contractors must include on their invoices.

DoD published a proposed rule at 66 FR 48652 on September 11, 2001. DoD received no comments on the proposed rule. Therefore, DoD is adopting the proposed rule as a final rule without change.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the rule makes minor changes to invoicing requirements that apply only to DoD contracts performed in Italy.

This rule does not add any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

As prescribed in 229.402-70(c), use the following clause:

This rule implements Section 211 of the United States-Caribbean Basin Trade Partnership Act (Title II of Public Law 106-200) and determinations of the United States Trade Representative published at 65 FR 60236 on October 10, 2000; 65 FR 69988 on November 21, 2000; and 65 FR 78527 on December 15, 2000. The rule amends the clauses at DFARS 252.225-7007, Buy American Act—Trade Agreements—Balance of Payments Program, and 252.225-7021, Trade Agreements, to remove Panama from the definition of “Caribbean Basin country” and to clarify which Caribbean Basin country products are subject to duty-free treatment.

DoD published an interim rule at 66 FR 47112 on September 11, 2001. DoD received no comments on the interim rule. Therefore, DoD is converting the interim rule to a final rule without change.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the rule affects only a limited number of textile and apparel articles from certain Caribbean Basin countries. Other statutory requirements still prohibit DoD from acquiring most of these articles from other than domestic sources.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Accordingly, the interim rule amending 48 CFR Part 252, which was published at 66 FR 47112 on September 11, 2001, is adopted as a final rule without change.

The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, dolphin, and, in the Gulf of Mexico only, bluefish) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

Based on the Councils' recommended total allowable catch and the allocation ratios in the FMP, on April 30, 2001 (66 FR 17368, March 30, 2001) NMFS implemented a commercial quota of 2.25 million lb (1.02 million kg) for the eastern zone (Florida) of the Gulf migratory group of king mackerel. That quota is further divided into separate quotas for the Florida east coast subzone and the northern and southern Florida west coast subzones. The quota newly implemented for the Florida east coast subzone is 1,040,625 lb (472,020 kg) (50 CFR 622.42 (c)(1)(i)(A) ( 1 )).

In accordance with 50 CFR 622.44 (a)(2)(i), beginning on February 1, if less than 75 percent of the Florida east coast subzone's quota has been harvested by that date, king mackerel in or from that subzone’s EEZ may be possessed on board or landed from a permitted vessel in amounts not exceeding 75 fish per day. The 75-fish daily trip limit will continue until a closure of the subzone's fishery has been effected or the fishing year ends on March 31.

NMFS has determined that 75 percent of the quota for Gulf group king mackerel for vessels using hook-and-line gear in the Florida east coast subzone will not be reached before February 1, 2002. Accordingly, a 75-fish trip limit applies to vessels in the commercial hook-and-line fishery for king mackerel in or from the EEZ in the Florida east coast subzone effective 12:01 a.m., local time, February 1, 2002. The 75-fish trip limit will remain in effect until the fishery closes or until the end of the current fishing season (March 31, 2002) for this subzone. From November 1 through March 31, the Florida east coast subzone of the Gulf group king mackerel is that part of the eastern zone north of 25°20.4′ N. lat. (a line directly east from the Miami-Dade County, FL, boundary).

This action responds to the best available information recently obtained from the fishery. The increased trip limit must be implemented immediately because less than 75 percent of the quota was harvested before February 1, 2002. This trip limit increase relieves a restriction. Therefore, any delay in implementing this action would be impractical and contradictory to the Magnuson-Stevens Act, the FMP, and the public interest. NMFS finds for good cause that the implementation of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553 (d), a delay in the effective date is waived.

This action is taken under 50 CFR 622.44 (a)(2)(iii) and is exempt from review under Executive Order 12866.