In an interim rule effective November 2, 2001, and published in the Federal Register on November 8, 2001 (66 FR 56428-56430, Docket No. 01-092-1), we amended the Asian longhorned beetle regulations in 7 CFR part 301 to include additional areas of Illinois and New York in the list of quarantined areas in § 301.51-3. That action was necessary to prevent the artificial spread of the Asian longhorned beetle to noninfested areas of the United States.

Comments on the interim rule were required to be received on or before January 7, 2002. We did not receive any comments. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule.

This action also affirms the information contained in the interim rule concerning Executive Orders 12866, 12372, and 12988, the National Environmental Policy Act, and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived the review process required by Executive Order 12866.

This rule affirms an interim rule that amended the Asian longhorned beetle regulations by including additional quarantined areas in Illinois and New York. As a result of the interim rule, the interstate movement of regulated articles from those areas is restricted.

The following analysis addresses the economic effect of this rule on small entities, as required by the Regulatory Flexibility Act.

The small businesses potentially affected by the interim rule are nurseries, arborists, tree removal services, and firewood dealers located within the quarantined areas. The actual number of such businesses in the quarantined areas added by the interim rule is unknown. However, we anticipate that the number of such businesses is small since the newly quarantined areas are urban and suburban communities as opposed to rural farm areas.

It is further estimated that the number and value of regulated articles that would, upon inspection, be determined to be infested, and therefore denied a certificate or a limited permit for movement, is small. Current data from the Animal and Plant Health Inspection Service (APHIS) Asian longhorned beetle project being conducted in Amityville, NY, support this conclusion.

Finally, the regulations allow businesses to chemically treat, fumigate, or process by chipping or burning all regulated articles before they are presented for APHIS inspection. It is likely that, given their low value relative to the cost of treatment, most regulated articles would not undergo such treatment.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This rule is issued under Marketing Agreement and Order No. 984 both as amended (7 CFR part 984), regulating the handling of walnuts grown in California, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

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

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

This rule continues to decrease the assessment rate established for the Board for the 2001-02 and subsequent marketing years from $0.0134 to $0.0124 per kernelweight pound of assessable walnuts.

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

For the 2000-01 and subsequent marketing years, the Board recommended, and USDA approved, an assessment rate of $0.0134 per kernelweight pound of assessable walnuts that would continue in effect from year to year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other information available to USDA.

The Board met on September 7, 2001, and unanimously recommended 2001-02 expenditures of $3,124,800 and an assessment rate of $0.0124 per kernelweight pound of assessable walnuts. In comparison, last year's budgeted expenditures were $2,937,885. The assessment rate is $0.0010 lower than the $0.0134 rate formerly in effect. The lower assessment rate is necessary because this year's crop is estimated by the California Agricultural Statistics Service (CASS) to be 280,000 tons (252,000,000 kernelweight pounds merchantable), which is about 17 percent more than last year's estimate. Thus, sufficient income should be generated at the lower rate for the Board to meet its anticipated expenses.

Major expenditures in the budget recommended by the Board for the 2001-02 year include $2,566,569 for marketing and production research projects, $313,200 for employee expenses such as administrative and office salaries, payroll taxes and benefits, $130,600 for office expenses, including rent, office supplies, telephone/fax, printing, and furniture/fixtures/automobile, $76,000 for other operating expenses, including management and field travel, Board meeting expenses, insurance, and audit fees, and $38,431 as a reserve for contingency. Budgeted expenses for these items in 2000-01 were $2,450,255 for marketing and production research projects, $278,630 for employee expenses, $104,000 for office expenses, $80,000 for other operating expenses, and $25,000 as a reserve for contingency, respectively.

The assessment rate recommended by the Board was derived by dividing anticipated expenses by expected shipments of California walnuts certified as merchantable. Merchantable shipments for the year are estimated at 252,000,000 kernelweight pounds which should provide $3,124,800 in assessment income and allow the Board to cover its expenses. As specified in § 984.69, unexpended funds may be used temporarily to defray expenses of the subsequent marketing year, but must be made available to the handlers from whom collected within 5 months after the end of the year.

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

Although this assessment rate is effective for an indefinite period, the Board will continue to meet prior to or during each marketing year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Board meetings are available from the Board or USDA. Board meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Board recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Board's 2001-02 budget and those for subsequent marketing years will be reviewed and, as appropriate, approved by USDA.

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

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

There are approximately 5,500 producers of walnuts in the production area and about 43 handlers subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those having annual receipts of less than $5,000,000.

Current industry information shows that 14 of the 43 handlers (32.5 percent) shipped over $5,000,000 of merchantable walnuts and could be considered large handlers by the Small Business Administration. Twenty-nine of the 43 walnut handlers (67.5 percent) shipped under $5,000,000 of merchantable walnuts and could be considered small handlers. An estimated 5,442 walnut producers, or about 98.9 percent of the 5,500 total producers, would be considered small producers with annual incomes less than $750,000. Based on the foregoing, it can be concluded that the majority of California walnut handlers and producers may be classified as small entities.

This rule continues to decrease the assessment rate established for the Board and collected from handlers for the 2001-02 and subsequent marketing years from $0.0134 to $0.0124 per kernelweight pound of assessable walnuts. The Board unanimously recommended 2001-02 expenditures of $3,124,800. The recommended $0.0010 decrease in the assessment rate is necessary because this year's estimate of assessable walnuts is about 17 percent more than last year's estimate. Thus, sufficient income should be generated at the current rate for the Board to meet its anticipated expenses.

Major expenditures in the budget recommended by the Board for the 2001-02 year include $2,566,569 for marketing and production research projects, $313,200 for employee expenses such as administrative and office salaries, payroll taxes and benefits, $130,600 for office expenses, including rent, telephone/fax, postage, printing, furniture, fixtures, and automobile, $76,000 for other operating expenses, including management and field travel, insurance, and audit fees, and $38,431 as a reserve for contingency. Budgeted expenses for these items in 2000-01 were $2,450,255 for marketing and production research projects, $278,630 for employee expenses, $104,000 for office expenses, $80,000 for other operating expenses, and $25,000 as a reserve for contingency, respectively.

Prior to arriving at this budget, the Board considered information from various sources, such as the Board's Budget and Personnel Committee, Research Committee, and Marketing Development Committee. Alternative expenditure levels were discussed by these groups, based upon the relative value of various research projects to the walnut industry. The recommended $0.0124 per kernelweight pound assessment rate was then determined by dividing the total recommended budget by the 252,000,000 kernelweight pound estimate of assessable walnuts for the year. Unexpended funds may be used temporarily to defray expenses of the subsequent marketing year, but must be made available to the handlers from whom collected within 5 months after the end of the year (§ 984.69).

A review of historical information and preliminary information pertaining to the current marketing year indicates that the grower price for 2001-02 could range between $0.50 and $0.70 per kernelweight pound of assessable walnuts. Therefore, the estimated assessment revenue for the 2001-02 year as a percentage of total grower revenue could range between 1.7 and 2.5 percent.

This action continues to decrease the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the Board's meeting was widely publicized throughout the walnut industry and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the September 7, 2001, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

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

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

An interim final rule concerning this action was published in the Federal Register on November 21, 2001 (66 FR 58362). Copies of that rule were also mailed or sent via facsimile to all walnut handlers. Finally, the interim final rule was made available through the Internet by the Office of the Federal Register and USDA. A 60-day comment period was provided for interested persons to respond to the interim final rule. The comment period ended on January 22, 2002, and no comments were received.

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

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

In an interim rule effective July 2, 2001, and published in the Federal Register on October 30, 2001 (66 FR 54642-54643, Docket No. 01-065-1), we amended the regulations by adding Greece to the list in § 94.18(a)(1) of regions where bovine spongiform encephalopathy (BSE) is known to exist. Greece had previously been listed in § 94.18(a)(2) as a region that presents an undue risk of introducing BSE into the United States. However, due to the detection of BSE in a native-born animal in that region, the interim rule was necessary to update the disease status of Greece regarding BSE.

Comments on the interim rule were required to be received on or before December 31, 2001. We did not receive any comments. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule.

This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Order 12988, and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived the review process required by Executive Order 12866.

Section 2 of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), Public Law (Pub. L.) 106-185, 114 Stat. 202, enacted on April 25, 2000, and codified at title 18, United States Code, section 983 (18 U.S.C. 983), created general rules for civil forfeiture proceedings. This section of the CAFRA, however, specifically exempts from certain of its requirements forfeitures undertaken pursuant to the following statutes: the Tariff Act of 1930 or any other provision of law codified in title 19, United States Code; the Internal Revenue Code of 1986; the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq. ); the Trading with the Enemy Act (50 U.S.C. App. 1 et seq. ); and section 1 of title VI of the Act of June 15, 1917 (40 Stat. 233; 22 U.S.C. 401). In addition, Public Law 107-56, enacted October 26, 2001, the title of which is the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, exempted from the requirements of CAFRA the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1701 et seq. ).

Under section 2 of the CAFRA, specified duties and obligations concerning civil forfeiture proceedings are placed upon Government officials who were to be designated by the seizing agencies.

By a document published in the Federal Register (65 FR 78090) on December 14, 2000, as T.D. 00-88, Customs announced an interim rule to clarify and implement the law in this regard. It was determined that interim regulations were appropriate because no additional requirements were imposed upon the public. Rather, the interim regulations conferred certain additional rights on property owners or interested parties, and provided clear guidance to Customs officials in the processing of property seized for forfeiture under the CAFRA.

The interim rule identified the particular Customs official who will grant extensions of time for sending notices of seizure, as authorized by 18 U.S.C. 983(a)(1)(B), and it identified those Customs officials who will rule on requests for immediate release of seized property, as authorized by 18 U.S.C. 983(f)(2). The interim regulations also provided guidance to Customs officials in the processing of property seized for forfeiture under the CAFRA.

In addressing these matters, the interim rule added a new subpart H to part 162 of the Customs Regulations (19 CFR part 162, subpart H).

Furthermore, the interim regulations made clear that acceptance of an administrative forfeiture remission does not make the Government liable for fees, costs or interest pursuant to 28 U.S.C. 2465. In this respect, a new § 171.24 was added to the Customs Regulations (19 CFR 171.24) to provide that, in the case of any seizure for forfeiture that is remitted or mitigated under 19 U.S.C. 1618 or 31 U.S.C. 5321, the person who accepts such a remission or mitigation decision will not be considered to have substantially prevailed in a civil forfeiture proceeding for purposes of being able to collect any fees, costs or interest from the Government.

With the exception of the provision in new § 171.24, seizures exempted from the requirements of section 2 of the CAFRA will be processed in accordance with existing regulations.

Lastly, Pub. L. 103-272, 108 Stat. 745, dated July 5, 1994, reenacted and recodified the provisions of title 49, United States Code. To this end, the interim rule removed the reference to 49 U.S.C. App. appearing in part 171, subpart F, of the Customs Regulations (19 CFR part 171, subpart F), and added in its place a reference to 49 U.S.C. 80303, in accordance with the recodification of the statutory provision specifically made by section 1(e) of Pub. L. 103-272.

Before adopting the interim regulations as a final rule, Customs solicited comments from the public. Three commenters responded to the interim rule. A description of the issues that were raised by the commenters together with Customs response to these issues is set forth below.

Comment: One commenter declares that currently, at international airports, there are signs warning passengers to declare the currency they are carrying if it exceeds $10,000. The commenter recommends that information be added to this warning that if currency is seized for nonreporting, the person whose money is seized has a right to file a claim and to be represented by an attorney, even if the person cannot afford an attorney. The claimant indicates that section 983(b) of title 18 specifies the right to legal representation.

Customs Response: The informational content of warnings posted at airports notifying passengers of the obligation to file monetary instrument reports falls outside the scope of this regulation.

Comment: One commenter states that clarification is required of the meaning of 18 U.S.C. 981(d) of the CAFRA. In particular, the commenter notes that administrative proceedings for violation of the Customs laws are inconsistent with section 981.

Customs Response: Customs disagrees. Administrative proceedings for processing seizures made for violation of the Customs laws are governed by the statutory provisions of 19 U.S.C. 1602 through 1619. Further, the provisions of 19 U.S.C. 1600 state that these procedures will apply to seizures of any property effected by Customs officers under any law enforced or administered by the Customs Service unless such law specifies different procedures. Because section 981 specifically authorizes the application of the Customs laws to these seizures, we find no inconsistencies.

Comment: One commenter asks why the interim regulations refer to “calendar days” when the statute only refers to “days.”

Customs Response: Customs used the term “calendar days” in the interim rule for purposes of clarity.

Comment: One commenter observes that § 162.92(a) in the interim rule states that Customs will send a written notice of seizure “as soon as practicable” yet an existing regulatory provision (19 CFR 162.21(a)) states that a receipt for seized property shall be given at the time of seizure to the person from whom the property was seized. The commenter suggests that these provisions are clearly in conflict. The commenter avers that immediate notification of seizure must occur, because extending the time for issuance of a receipt creates a situation where none of the parties directly involved with the shipment, i.e., shipper, consignee or carrier, would know the disposition for an extended period of time. It is asserted that seizure of a shipment with no notice from Customs for 60 days or more does not allow the importer to conduct his normal business and will cause the carrier to expend needless time and effort in searching for the seized articles.

Customs Response: There is no conflict presented between §§ 162.21 and 162.92. Further, Customs believes that adequate safeguards regarding notices of seizure already exist.

The commenter incorrectly equates providing a receipt for seized property, which is merely an indication that the Government has taken possession of the property, with issuance of a formal notice of seizure, which explains the rights, both administrative and judicial, that a claimant to that property has with regard to challenging the forfeiture. The issuance of a notice of seizure is already governed by the provisions of § 162.31 of the Customs Regulations (19 CFR 162.31). Those requirements of notice have not changed. In fact, the regulation with which the commenter takes issue, § 162.92, specifically references the requirements of § 162.31 governing information to be included in a notice of seizure. By contrast, the provisions of § 162.21 only speak to the responsibilities and authority of the Customs officer actually making a seizure. Section 162.21 does not deal with the notification of seizure and explanation of the forfeiture processes as do the notices of seizure.

Comment: One commenter notes that, as a carrier, delay in notification of seizures under § 162.92(a) can result in claims being made against the carrier for “lost” merchandise which has, in fact, been seized by Customs.

The commenter suggests numerous possible procedures that Customs could implement by regulation to assist carriers when claims are filed due to seizure. Specifically, these procedures include: (1) The provision by Customs of a list of all shipments seized from a carrier's custody not more than 60 days following seizure, without exception so as to allow the carrier to process claims; (2) the review by Customs, every 30 days, of a list of all claims submitted to the carrier for loss in order to allow the carrier to determine which shipments have been seized by Customs; (3) the empowerment of the carrier to require any party filing a claim against the carrier to obtain from Customs written confirmation that the shipment was not seized in order to perfect that claim; and (4) the empowerment of the carrier to require the party filing a claim to assign ownership of the shipment to the carrier should it be found to have been seized and then released by Customs.

Customs Response: Customs disagrees that any changes as proposed by the commenter are needed under the circumstances. The provisions of § 162.31 already require Customs to provide written notice of any liability to forfeiture to each party that the facts of record indicate has an interest in the claim or seized property. To this effect, as stated above, § 162.92(a) in the interim rule specifically references the requirements of § 162.31 governing information to be included in a notice of seizure.

It is not the responsibility of Customs to match each notice of seizure provided to a carrier with any claims of loss that have been filed against the carrier. Nor is it the province of the Customs Regulations to include provisions regarding business practices of a carrier or to empower that carrier to require information from its clients under the authority of federal regulation. The requirements of CAFRA require notification to known parties-in-interest as provided in the interim regulations and as adopted in these final regulations.

Comment: One commenter states, in connection with § 162.92(d), that only the Assistant Commissioner, Office of Investigations, may extend the period for sending notices, not his designee. It is claimed that 18 U.S.C. 983 makes no provision for designees.

Customs Response: The provisions of 18 U.S.C. 983(a)(1)(B) require the decision as to any extension to be made by a supervisory official in the Headquarters office of the seizing agency. Section 162.92(d) in the interim rule complies with this statutory requirement. There is no statutory prohibition on allowing a designee of a supervisory official from making this decision.

Comment: One commenter notes, with respect to § 162.93, that if notice of seizure is not provided timely under CAFRA, and the seized property must be returned to the person from whom the property was seized, the interim regulations provide no audit or check to assure that return of the property occurs. It is averred that no party other than Customs will know that the seizure occurred because no notice has been issued. Accordingly, the commenter suggests that articles should be returned to the owner within 60 days, the same time period as originally required to issue the notice.

Customs Response: Customs disagrees. The provisions of § 162.93 in the interim rule require Customs to return property to any person from whom property is seized if the notice of seizure is not sent within the time period prescribed in § 162.92. Also, the provisions of § 162.21 of the Customs Regulations (19 CFR 162.21) require Customs to provide a receipt for seized property to the party from whom the property has been seized. Contrary to the commenter's assertion, the party from whom the property is seized will know of the seizure based upon regulatory requirements that predate the CAFRA regulations which are the subject of this document.

Comment: One commenter states, in relation to filing a claim for seized property under § 162.94, that 18 U.S.C. 983(a)(2)(D) requires Customs to make claim forms generally available upon request. The commenter also indicates that the provisions of section 983(a)(2)(E) should make clear that a claim can be filed without the posting of a bond. Thus, the commenter implies that this language should be included in § 162.94.

Customs Response: Customs agrees. Section 162.94(c) in the interim rule is revised in this final rule to include a provision that Customs will make claim forms generally available upon request. Also, § 162.94 in the interim rule is amended in this final rule by adding a new paragraph (e) to make clear that a claim may be filed without the posting of a bond. Section 162.94(e) in the interim rule is redesignated as § 162.94(f) in this final rule.

Comment: One commenter states that Customs field offices need guidance on what is meant by the phrase “legitimate business” as it appears in § 162.95(b)(1) in the interim rule, which states that immediate release of seized property for hardship purposes will not apply if the seized property is currency or monetary instruments or electronic funds unless such property comprises the assets of a legitimate business. To this end, the commenter states that if a person from whom currency or negotiable instruments have been seized can demonstrate that the money had just been withdrawn from a bank account or can provide sales slips for merchandise sold, that seized property should be returned on site.

Customs Response: Customs disagrees that § 162.95(b)(1) in the interim rule needs any change as suggested by the commenter.

The commenter asks that Customs in effect expand the statute to include situations that are not contained in the statute. The statute allows for the immediate return of seized property to a claimant if continuing possession of the seized property by Customs, pending the final disposition of the forfeiture proceedings, would cause substantial hardship and that likely hardship outweighs the risk that the property will be lost, concealed or transferred if it is returned to the claimant during the pendency of the proceeding. See 18 U.S.C. 983(f)(1).

However, the statute excepts from immediate release, as provided above, currency, or other monetary instruments, or electronic funds unless that currency, other monetary instruments or electronic funds constitute the assets of a legitimate business which has been seized. If the claimant to property can show that the seized currency or monetary instruments are the assets of a legitimate business that has been seized, he would still need to show under the statute that he has a possessory interest in the property, that he has sufficient ties to the community, and that continuing possession by Customs would cause substantial hardship.

Against this backdrop, the providing of “slips showing sale of merchandise” hardly rises to the level of proof needed in order for the Government to allow the immediate release of the seized property, as described by the commenter.

Nevertheless, in one sense § 162.95(b)(1) in the interim rule does not accurately reflect the statute. It states that immediate release of seized property for hardship purposes will not apply if the seized property is currency or monetary instruments or electronic funds unless such property comprises the assets of a legitimate business. In fact, the statute at 18 U.S.C. 983(f)(8) states that the provision governing the release of seized property will not apply if the seized property is contraband, currency, or other monetary instrument, or electronic funds unless such currency or other monetary instrument or electronic funds constitutes the assets of a legitimate business which has been seized . Accordingly, § 162.95(b)(1) in the interim rule is amended in this final rule to more accurately reflect the statute in this respect.

As previously noted, Public Law 107-56, enacted on October 26, 2001, and known as the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, exempted from the requirements of CAFRA the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1701 et seq. ). Section 162.91 in this final rule document is revised to reflect this statutory change.

Also, section 3 of Public Law 106-561, enacted on December 21, 2000, and known as The Paul Coverdell National Forensic Sciences Improvement Act of 2000, amended 18 U.S.C. 983(a)(2)(C)(ii) by eliminating the requirement that a party filing a CAFRA claim provide customary documentary evidence of an interest in the property, if such evidence is available; and by eliminating the requirement that the party state that the claim is not frivolous. Thus, § 162.94(d)(2) in the interim rule, which contained both of these requirements, is amended to reflect the change.

After careful consideration of the comments received and further review of the matter, Customs has concluded that the interim rule amending parts 162, 171 and 178, Customs Regulations (19 CFR parts 162, 171 and 178) that was published in the Federal Register (65 FR 78090) on December 14, 2000, as T.D. 00-88, should be adopted as a final rule with the modifications discussed above.

This final rule document does not impose any additional requirements upon the public. Rather, the regulations are intended both to confer certain additional rights on property owners or interested parties, and to provide clear guidance to Customs officials in the processing of property seized for forfeiture under the CAFRA. Accordingly, it has been determined, pursuant to 5 U.S.C. 553(d)(3), that a delayed effective date is not required. Because no notice of proposed rulemaking was required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply. This final rule does not result in a “significant regulatory action” as specified in E.O. 12866.

The collection of information involved in this final rule document has already been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) and assigned OMB Control Number 1515-0052 (Petition for remission or mitigation of forfeitures and penalties incurred). This collection encompasses a claim for seized property in a non-judicial civil forfeiture proceeding. This rule does not present any material change to the existing approved information collection. An agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB.

To this end, part 178, Customs Regulations (19 CFR part 178), containing the list of approved information collections, was previously revised by the interim rule to make appropriate reference to OMB Control Number 1515-0052.

The Federal Alcohol Administration Act (FAA Act) at 27 U.S.C. 205(e) requires that alcohol beverage labels provide the consumer with adequate information regarding a product's identity and prohibits the use of deceptive information on such labels. The FAA Act also authorizes the Bureau of Alcohol, Tobacco and Firearms (ATF) to issue regulations to carry out the Act's provisions. Regulations in 27 CFR part 4, Labeling and Advertising of Wine, allow the establishment of definitive viticultural areas. The regulations allow the name of an approved viticultural area to be used as an appellation of origin on wine labels and in wine advertisements. A list of approved viticultural areas is contained in 27 CFR part 9, American Viticultural Areas.

An American viticultural area is a delimited grape-growing region distinguishable by geographic features. Viticultural features such as soil, climate, elevation, topography, etc., distinguish it from surrounding areas.

Any interested person may petition ATF to establish a grape-growing region as a viticultural area. The petition should include:

• Evidence that the name of the proposed viticultural area is locally and/or nationally known as referring to the area specified in the petition;

• Historical or current evidence that the boundaries of the viticultural area are as specified in the petition;

• Evidence relating to the geographical characteristics (climate, soil, elevation, physical features, etc.) which distinguish the viticultural features of the proposed area from surrounding areas;

• A description of the specific boundaries of the viticultural area, based on features which can be found on United States Geological Survey (U.S.G.S.) maps of the largest applicable scale; and

• A copy (or copies) of the appropriate U.S.G.S. map(s) with the boundaries prominently marked.

ATF received a petition from Jack Florence, chairman of the Rockpile Appellation Committee, proposing to establish the “Rockpile” viticultural area in northwestern Sonoma County, California. This viticultural area is located entirely within Sonoma County and the established North Coast viticultural area as described in 27 CFR 9.30. The Rockpile viticultural area encompasses 15,400 acres at or above the 800-foot contour line and includes eleven vineyards with approximately 160 acres of planted wine grapes. The area's shape is an irregular east-to-west rectangle with Rockpile Road running through its length. The eastern portion of the area abuts the western edge of the Lake Sonoma Recreational Area and the Warm Springs Dam area. Continuing in a west-northwesterly direction, Rockpile Peak and Rockpile Ranch #3 anchor the viticultural area's west side.

Approximately 2,500 acres of Rockpile's eastern end overlaps the northwest corner of the established Dry Creek Valley viticultural area (27 CFR 9.64). This overlapping area, comprising 3% of the Dry Creek Valley viticultural area, 16% of the Rockpile viticultural area, and found on the U.S.G.S. Warm Springs Dam Quadrangle map, is flanked by Dry Creek to the north and Warm Springs Creek to the south.

A Notice of Proposed Rulemaking, Notice No. 916, requesting comments by July 2, 2001, from all interested persons concerning the establishment of this viticultural area, was published in the Federal Register on May 1, 2001 (66 FR 21709). ATF received requests from three commenters.

Comments from Peter Beall of Tombs Creek Vineyards and Art Viramontes of Sonoma Royale Vineyard requested that several vineyards south of the proposed viticultural area be included within the Rockpile boundaries. After the close of the comment period, Mr. Beall determined that he had misread the written description of Rockpile's south boundary on the Tombs Creek U.S.G.S. map. He realized that including the Tombs Creek Vineyards and Sonoma Royale Vineyard would necessitate an extensive realignment of the proposed south boundary line, pushing it beyond what is commonly recognized as the Rockpile area. In a July 10, 2001, letter, Mr. Beall retracted his and Mr. Viramontes' comment letters, withdrew their requests for the boundary realignment, and offered support for the Rockpile petition and its original boundaries.

A comment from Gary Branham requested that his vineyard, Branham's Rockpile, located northwest of the proposed viticultural area, be included within the Rockpile boundaries. As shown on the U.S.G.S. Big Foot Mountain map, the 1,400 acre area in question is above the 800-foot contour line on Rockpile Road in Sonoma County and is considered a part of the original Rockpile Ranch. Its climate, soil and geography are similar to the proposed viticultural area. The Rockpile Appellation Committee concurred with this 1,400-acre northwest expansion of their originally proposed boundaries. ATF agrees that the proposed Rockpile viticultural area's expansion is consistent with the original petition and meets regulatory criteria for an American viticultural area. This final rule has been modified accordingly.

The Rockpile name in Sonoma County dates to 1858 and the start of cattle-raising operations at the “Rock Pile Ranch. This name was used in a newspaper article (Sonoma Democrat, Santa Rosa, California) on October 28, 1882. According to the petitioner, and as researched by historian Cathy Parks, an investment partnership purchased about 21,000 acres of property in this area in 1911, naming it “La Roca Monte Rancho,” Spanish for “the Rocky Peak Ranch.” The property soon became known by its English name of Rockpile Ranch.

The Rockpile name is noted on the current U.S.G.S. Warm Springs Dam, Cloverdale, and Big Foot Mountain Quadrangle maps, all parts of the petition. The most recent AAA Mendocino and Sonoma Coast Region map shows Rockpile Road within the proposed viticultural area.

The viticultural area's boundaries are based on those of the historical Rockpile Ranch and on the area's higher elevation. The Rockpile Ranch, as noted above, stems from a 1911 investment partnership that purchased land in the petitioned area. Acquisitions included the 19th century Rock Pile Ranch, Rockpile Peak, and several surrounding areas. To manage this vast sheep-raising and hunting property, the area was eventually divided into Rockpile #1, Rockpile #2, and Rockpile #3 ranches. During the Great Depression some of the property was sold, but 18,000 acres of the Rockpile Ranch #3 were preserved as a working sheep ranch. By the 1930's the area became locally known as Rockpile, and the winding road to the ranch headquarters was named Rockpile Road. U.S.G.S. and AAA maps identify the area and road as Rockpile.

Rockpile's predominant geographic feature is the 800 foot and above elevation of the entire petitioned area. This elevation makes it higher than other grape-growing areas in the surrounding region.

The petition noted several geographic factors that distinguish the Rockpile viticultural area from surrounding grape-growing regions. The elevation of the Rockpile area, as shown on the U.S.G.S. maps, ranges from 800 feet to approximately 1,900 feet. According to the petition, the 800-foot elevation line delineates the area's eastern and northern boundaries, while the southern and western boundary lines average close to 1,800 feet in elevation. The elevation of the area's established vineyards ranges from 800 feet to 1,800 feet, with approximately 95% of the planted area above the 1,000-foot elevation. This higher elevation provides different climatic influences than found in nearby valleys.

Spring daytime temperatures in the Rockpile area run five to ten degrees cooler than the Healdsburg area, approximately ten miles southeast, according to the petition. In the absence of a marine inversion layer, or fog, the temperature decreases about six degrees Fahrenheit for each additional 1,000 feet of elevation. The cool, prevailing northwesterly spring breezes, which are not as prevalent at the lower elevations of the protected valley floors, increase the cooling effect. According to the petition, the viticultural effect of this cooling creates a delayed bud break and slower growth, resulting in delayed bloom and fruit set.

Summer weather in the Rockpile area, according to the petition, is slightly warmer than the nearby valleys due to less fog and more clear weather, resulting in increased sunshine and warmer temperatures. On days when the marine inversion is shallower than 1,000 feet, the Rockpile area is above the fog.

Fall night temperatures, as stated in the petition, are warmer than in the surrounding areas, with less fog at 800 feet and above than at lower elevations. The crucial grape ripening period of September and early October is generally warmer and drier in the Rockpile locality than in surrounding viticultural areas.

The Rockpile viticultural area's soils, according to the petition, differ from neighboring valley viticultural areas in the relative absence of silt and sand, the higher oxidized iron properties (red color), and the greater clay content of the subsoil. The topsoil, generally loam to clay loam with a red to brown color, is twelve to twenty-four inches in depth in the better viticultural locations. There are areas of small rocks and gravel mixed in the topsoil, some with outcroppings of larger rock. The topsoil depth and amounts of clay, rock, and organic matter vary within the area. The topsoil is acidic to very acidic, and the subsoil is more clay-like in texture. However, areas of weathered shale and sandstone, in addition to the topography, contribute to well-drained vineyard conditions.

The provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this rule because no requirement to collect information is imposed.

This regulation will not have a significant economic impact on a substantial number of small entities or otherwise cause a significant increase in reporting, recordkeeping, or other compliance burdens on a substantial number of small entities. No new requirements are imposed. ATF approval of a viticultural area is not an endorsement of the wine produced in the area. The approval of this viticultural area petition merely allows the wineries in the area to more accurately describe the origin of their wines to consumers and helps consumers identify the wines they purchase. Thus, any benefit derived from the use and reputation of a viticultural area name is the result of a proprietor's own efforts and consumer acceptance of wines from that area. Accordingly, a regulatory flexibility analysis is not required.

It has been determined that this regulation is not a significant regulatory action as defined by Executive Order 12866. Therefore, a regulatory assessment is not required.

The principal author of this document is Nancy Sutton, Regulations Division, Bureau of Alcohol, Tobacco and Firearms.

District Commanders and Captains of the Port (COTP) must be immediately responsive to the safety and security needs of the waters within their jurisdiction; therefore, District Commanders and COTPs have been delegated the authority to issue certain local regulations. Safety zones may be established for safety or environmental purposes. A safety zone may be stationary and described by fixed limits or it may be described as a zone around a vessel in motion. Security zones limit access to vessels, ports, or waterfront facilities to prevent injury or damage. Special local regulations are issued to enhance the safety of participants and spectators at regattas and other marine events. Timely publication of these regulations in the Federal Register is often precluded when a regulation responds to an emergency, or when an event occurs without sufficient advance notice. The affected public is, however, informed of these regulations through Local Notices to Mariners, press releases, and other means. Moreover, actual notification is provided by Coast Guard patrol vessels enforcing the restrictions imposed by the regulation. Because Federal Register publication was not possible before the beginning of the effective period, mariners were personally notified of the contents of these special local regulations, security zones, or safety zones by Coast Guard officials on-scene prior to enforcement action. However, the Coast Guard, by law, must publish in the Federal Register notice of substantive rules adopted. To meet this obligation without imposing undue expense on the public, the Coast Guard periodically publishes a list of these temporary special local regulations, security zones, and safety zones. Permanent regulations are not included in this list because they are published in their entirety in the Federal Register . Temporary regulations may also be published in their entirety if sufficient time is available to do so before they are placed in effect or terminated. The safety zones, special local regulations and security zones listed in this notice have been exempted from review under Executive Order 12866 because of their emergency nature, or limited scope and temporary effectiveness.

The following regulations were placed in effect temporarily during the period from July 1, 2001 through December 31, 2001, unless otherwise indicated. This notice also includes regulations that were not received in time to be included on the quarterly notice for the first and second quarter of 2001.

Regulatory Information

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) was not published for this regulation. Good cause exists for not publishing a NPRM and making it effective in less than 30 days after publication in the Federal Register . No vessels known to use this waterway would be precluded from transiting the bridge as a result of the reduction in vertical opening capability from 152 feet to 105 feet because the bridge has not opened beyond 105 feet during the past four years. Additionally, conclusive information from the bridge owner confirming the start date for this bridge maintenance was not provided to the Coast Guard until January 16, 2002. As a result, it was impracticable to draft or publish a NPRM in advance of the requested start date for this necessary maintenance. Any delay encountered in this regulation's effective date would be contrary to the public interest because these repairs are necessary to insure public safety and insure continued operation of the bridge.

The Marine Parkway Bridge, at mile 3.0, across Rockaway Inlet has a vertical clearance of 152 feet at mean high water and 156 feet at mean low water in the full open position. The existing regulations are listed at 33 CFR 117.795(a).

The bridge owner, the Metropolitan Transit Administration (MTA) Bridges and Tunnels, requested that the bridge be allowed to open no greater than 105 feet above mean high water to facilitate repairs at the bridge. The Coast Guard has determined that the bridge has not opened greater than 105 feet during the past four years.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). This conclusion is based on the fact that the bridge will still continue to open for navigation.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This conclusion is based on the fact that the bridge will continue to open for navigation.

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

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

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

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.

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.

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for this rule.

The Spanish River Boulevard (N.E. 40th Street) Drawbridge across the Atlantic Intracoastal Waterway at Boca Raton, Florida, is a double leaf bridge with a vertical clearance of 21 feet above mean high water (MHW) measured at the fenders in the closed position with a horizontal clearance of 90 feet. The current operating regulation in 33 CFR 117.5 requires both draws of the bridge to open on signal.

On February 1, 2002, the drawbridge owner requested a deviation from the current operating regulations to allow the owner to complete repairs to the decking.

The District Commander has granted a temporary deviation from the operating requirements listed in 33 CFR 117.5 for the purpose of completing these repairs. Under this deviation, the Spanish River Boulevard (N.E. 40th Street) need only open a single leaf of the bridge from 12:01 a.m. on March 11, 2002 until 11:30 p.m. on March 25, 2002. Double leaf openings shall be provided with twelve hours advance notice to the contractor.

The Washington Street S136 Bridge has a vertical clearance in the closed position of 9 feet at mean high water and 16 feet at mean low water. The existing regulations are listed at 33 CFR 117.217.

The bridge owner, Connecticut Department of Transportation (CONNDOT), has requested a temporary deviation from the drawbridge operating regulations to facilitate necessary mechanical maintenance, speed reducer repairs on the east lift span, at the bridge. The nature of the required repairs will require one of the two opening spans (east span) to remain in the closed position during the mechanical repairs.

During this deviation the bridge will open only one span (west span) for bridge openings from 8 a.m. on February 26, 2002 through 4 p.m. on February 28, 2002.

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

The Coast Guard has determined that good cause exists under the Administrative Procedure Act (5 U.S.C. 553) for not publishing a NPRM with comment and for making this regulation effective in less than 30 days after publication in the Federal Register . The Coast Guard believes notice and comment are unnecessary because our review of the bridge logs for the past two years shows that there have been no bridge openings requested at night during the time period this rule will be in effect. Making this rule effective less than thirty days after publication is necessary because the bridge owner advised the Coast Guard that emergency structural maintenance must be performed to insure safe operation of the bridge. In view of the historic absence of bridge opening requests at night and the demonstrated need to perform structural maintenance, any delay encountered in this regulation's effective date would be unnecessary and contrary to the public interest.

The Belt Parkway Bridge, at mile 0.8, across the Mill Basin, has a vertical clearance of 34 feet at mean high water, and 39 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.795(b).

The bridge owner, New York City Department of Transportation (NYCDOT), requested a temporary regulation to facilitate structural maintenance to replace the deteriorated roadway deck at the bridge.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). This conclusion is based on the fact that there have been no requests to open the bridge during the time period the bridge owner has requested an advance notice requirement.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This conclusion is based on the fact that there have been no requests to open the bridge during the time period the bridge owner has requested an advance notice requirement.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to 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 under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

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

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.

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.

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for the temporary final rule.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have 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.

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

Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a Notice of Proposed Rulemaking (NPRM). Publishing a NPRM and delaying the effective date of this rule would be contrary to national security interests since immediate action is necessary to protect the public, port, 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 .

Based on the September 11, 2001, terrorist attack on the World Trade Center in New York and the Pentagon in Arlington, VA there is an increased risk that subversive terrorist activity could be launched by vessels or persons in close proximity to the Port of Charleston, S.C., against bridges within the security zones continued by this rule. If a bridge were damaged or destroyed, the Port of Charleston would be isolated from access to the sea, crippling the local economy and negatively impacting national security. These temporary security zones are necessary to protect the safety of life and property on the navigable waters, prevent potential terrorist threats aimed at the bridges crossing the main shipping channels in the Port of Charleston, S.C. and to ensure the continued unrestricted access to the sea from the Port.

Two minutes after the security zones established October 18, 2001 by a current temporary final rule expire, this rule will continue those security zones for five more months. The current rule (Docket # COTP Charleston-01-124) will expire at 11:59 p.m. on January 15, 2002. [Because its mail delivery to Coast Guard Headquarters was delayed, COTP Charleston-01-124 will be published in the Federal Register in a quarterly list of temporary rules issued.]

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).

We expect the economic impact of this rule to be so minimal so that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. The limited geographic area impacted by the security zones will not restrict the movement or routine operation of commercial or recreational vessels through the Port of Charleston. Also, an individual may request a waiver of these regulations from the Coast Guard Captain of the Port of Charleston.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities because the limited geographic area encompassed by the security zones will not restrict the movement or routine operation of commercial or recreational vessels through the Port of Charleston. Also, an individual may request a waiver of these regulations from the Coast Guard Captain of the Port of Charleston.

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

Small businesses may also send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to 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 under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications 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 would not result in such expenditure, we do discuss the effects of this rule elsewhere in the preamble.

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

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

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 create an environmental risk to health or risk to safety that might 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 relationship 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 that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

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

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 an NPRM, which would incorporate a comment period before a final rule was 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 .

Although the Coast Guard has good cause to implement this regulation without engaging in the notice of proposed rulemaking process, we want to afford the maritime community the opportunity to participate in this rulemaking by submitting comments and related material regarding the size, scope and duration of the Regulated Navigation Areas, safety zones and security zones in order to minimize unnecessary burdens on waterway users. If you do so, please include your name and address, identify the docket number for this rulemaking [CGD05-01-071], indicate the specific section of this document to which each comment applies, and give the reason for each comment.

Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this temporary final rule in view of them.

Based on the September 11, 2001, terrorist attacks on the World Trade Center buildings in New York and the Pentagon in Virginia, there is an increased risk that subversive activity could be launched by vessels or persons in close proximity to Calvert Cliffs Nuclear Power Plant. On October 3, 2001, Constellation Nuclear—Calvert Cliffs Nuclear Power Plant requested this rule to reduce the potential threat that may be posed by vessels that approach the power plant.

Entry into the security zone is prohibited, unless specifically authorized by the Captain of the Port, Baltimore, MD. Federal, state, and local agencies may assist the Coast Guard in the enforcement of this rule.

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).

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. This regulation is of limited duration to handle the emergency situation and vessels may transit around the zone.

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. Because of a good cause exception, this rule was not preceded by a general notice of proposed rulemaking and, therefore, is exempt from the requirements of the Regulatory Flexibility Act. (5 U.S.C. 603). Although this rule is exempt, we have reviewed it for potential economic impact on small entities and 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.

Most charter fishing activity on the Chesapeake Bay takes place outside of the affected area. Approximately 15 charter-fishing vessels per day operate within the area encompassed by the security zone. These charter-fishing vessels will be excluded from further fishing within this zone, and will be forced to seek fishing opportunities in other areas. The added time and expense necessary to seek out, and travel to other fishing areas will result in a loss of revenue to the charter fishing vessel operators. Localized impact notwithstanding, the overall impact of this regulation on the Chesapeake Bay charter fishing fleet is expected to be minor.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule will have a significant economic impact on it, please submit a comment to the office listed under ADDRESSES . In your comment, explain why you think it qualified and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the address listed under ADDRESSES .

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to 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 under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications 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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not affect 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.

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it 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.

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

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. This regulation establishes a security zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES .

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. In keeping with the requirements of 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. In keeping with the requirements of 5 U.S.C. 553 (d)(3), the Coast Guard also finds that good cause exists for making this regulation effective less than 30 days after publication in the Federal Register .

Due to the recent terrorist attack on the United States, a heightened level of security has been established concerning all vessels entering navigable waters of the United States. As a result, this security zone is needed to protect the United States and more specifically the people, ports, waterways, and properties of the San Francisco Bay area. The incidents necessitating this security zone did not allow a 30-day period for publication prior to the issuance of this temporary regulation. Publishing an NPRM and delaying the effective date would be contrary to national security.

On September 11, 2001, terrorists launched attacks on civilian and military targets within the United States killing large numbers of people and damaging properties of national significance. Vessels operating near the United States Coast Guard property on Yerba Buena Island, San Francisco, California present possible hindrances or dangers to government emergency response resources.

As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended The Ports and Waterways Safety Act (PWSA) to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. 33 U.S.C. 1226. The terrorist acts against the United States on September 11, 2001 have increased the need for safety and security measures on U.S. ports and waterways. In response to these terrorist acts, and in order to prevent similar occurrences, the Coast Guard is establishing a temporary security zone in the navigable waters of the United States surrounding the United States Coast Guard property on Yerba Buena Island, San Francisco, California. The zone will be in effect from 5:00 p.m. (PDT) on October 9, 2001 to 4:59 p.m. (PDT) on June 9, 2002.

This temporary security zone is necessary to provide for the safety and security of the United States of America and the people, ports, waterways and properties within the San Francisco Bay area. The security zone will be enforced by Coast Guard patrol craft or any patrol craft enlisted by the COTP.

Persons and vessels are prohibited from entering into or transiting through this security zone unless authorized by the Captain of the Port, or his designated representative. Each person and vessel in a security zone shall obey any direction or order of the COTP. The COTP may remove any person, vessel, article, or thing from a security zone. No person may board, or take or place any article or thing on board, any vessel in a security zone without the permission of the COTP.

Any violation of either security zone described herein, is punishable by, among other things, civil penalties (not to exceed $27,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment for not more than 12 years and a fine of not more than $250,000), in rem liability against the offending vessel, and license sanctions.

This temporary final rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6 (a)(3) of that Order. It has not been reviewed by the Office of Management and Budget 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). Due to the recent terrorist actions against the United States the implementation of this security zone is necessary for the protection of the United States and its people. Vessels will receive authorization to transit into San Francisco Bay by the Captain of the Port on a case-by-case basis. As a result, full regulatory evaluation under paragraph 10 (e) of the regulatory policies and procedures of DOT is unnecessary.

Under the Regulatory Flexibility Act (5 U.S.C. § 601-612), the Coast Guard considered whether this rule would have a significant economic impact on a substantial number of small entities. “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 less than 50,000.

This security zone will not have a significant impact on a substantial number of small entities because although the security zone will occupy the entire entrance of San Francisco Bay, vessels will receive authorization to transit into San Francisco Bay by the Captain of the Port on a case-by-case basis. Therefore, the Coast Guard certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) that this temporary final rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard offers 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 your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact Lieutenant Ross Sargent, U.S. Coast Guard Marine Office San Francisco Bay at (510) 437-3073.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This temporary final rule does not provide for a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

A rule has implications 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 and have determined that this rule 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.

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 create 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 relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation, because we are establishing a security zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES .

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 an NPRM, and, under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The catastrophic nature of, and resulting devastation from, the September 11, 2001 attacks on the World Trade Center towers in New York City and the Pentagon in Washington DC, makes this rulemaking necessary for the protection of national security interests. National security and intelligence officials warn that future terrorist attacks against United States interests are likely. Any delay in making this regulation effective would be contrary to the public interest because immediate action is necessary to protect against the possible loss of life, injury, or damage to property.

On September 11, 2001, both towers of the World Trade Center and the Pentagon were attacked by terrorists. In response to these terrorist acts, heightened awareness and security of our ports and harbors is necessary. To enhance that security the Captain of the Port (COTP), St. Louis is establishing a temporary security zone.

This security zone includes all water extending 300 feet from the shoreline of the left descending bank on the Upper Mississippi River beginning from mile marker 506.9 and ending at mile marker 506.7. This security zone is necessary to protect the public, facilities, and surrounding area from possible acts of sabotage or other subversive acts at the Quad Cities Generating Station. All vessels and persons are prohibited from entering the zone without the permission of the Captain of the Port St. Louis or his designated representative.

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

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

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This security zone will not have an impact on a substantial number of small entities because this rule will not obstruct the regular flow of vessel traffic and will allow vessel traffic to pass safely around the security zone. If you are a small business entity and are significantly affected by this regulation please contact LT Dave Webb, U.S. Coast Guard Marine Safety Detachment Quad Cities, Rock Island Arsenal Bldg 218, Rock Island, IL 61299-0627 at (309) 782-0627.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to 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 under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications 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 so discuss the effects of this rule elsewhere in this preamble.

This rule will not affect 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.

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 create 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 relationship 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 that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action, therefore it does not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available for inspection or copying where indicated under ADDRESSES .

VA death pension is a needs-based benefit available to surviving spouses and unmarried children of deceased veterans with qualifying wartime service. In order for an individual to be eligible for death pension, his or her income from all sources must be less than the maximum annual pension rate established by law. The annual benefit is reduced, dollar for dollar, by the amount of the beneficiary's countable income. All income from any source is counted unless specifically excluded by statute or regulation.

Section 1503(a)(3) of 38 U.S.C. provides for certain exclusions from countable income for death pension entitlement, including an amount equal to the expenses of the veteran's last illness, burial and just debts paid by the spouse or by the surviving spouse or child of a deceased veteran. VA implemented the provisions of 38 U.S.C. 1503(a)(3) at 38 CFR 3.272(h). The last sentence of § 3.272 (h) provides that the amount of expenses of the veteran's last illness, burial, and just debts “paid subsequent to death but prior to date of entitlement are not deductible.”

In a precedent opinion dated March 28, 2000 (VAOPGCPREC 1-2000), VA's General Counsel held that the last sentence of § 3.272(h) is inconsistent with 38 U.S.C. 1503(a)(3) because the statute does not limit the period in which expenses of a veteran's last illness may be deducted in calculating the surviving spouse's death pension entitlement. The General Counsel determined that VA may not deny a death pension claim or reduce the amount of benefits payable based on the last sentence of § 3.272(h) and that VA must revise § 3.272(h) to eliminate the prohibition against reducing the surviving spouse's countable income by the amount of expenses of the veteran's last illness, just debts and burial when paid after the veteran's death but before the date of the surviving spouse's entitlement to death pension. Pursuant to 38 CFR 14.507, a General Counsel precedent opinion is binding on VA. Accordingly, we are amending § 3.272(h) to make it consistent with that General Counsel opinion.

This final rule brings the regulations into conformance with the governing statute as interpreted by VA's General Counsel in a precedent opinion that under 38 CFR 14.507 is binding on VA and the public. Accordingly, since there is no discretion in this matter, there is a basis for dispensing with prior notice and comment and delayed effective date provisions of 5 U.S.C. 552 and 553.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

This document has been reviewed by the Office of Management and Budget under Executive Order 12866.

Because no notice of proposed rule making was required in connection with the adoption of this final rule, no regulatory flexibility analysis is required under the Regulatory Flexibility Act (5 U.S.C. 601-612). Even so, the Secretary hereby certifies that this regulatory amendment will not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance numbers are 64.101 and 64.105.

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

On September 14, 1998 (63 FR 49053), EPA proposed a limited approval and limited disapproval of the following rules that were submitted for incorporation into the California SIP.

We proposed a limited approval because we determined that these rules improve the SIP and are largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions conflict with section 110 and part D of the Act. These provisions include the following:

1. Exemption from regulation, or exemption from federal enforceability of regulation, of facilities located west of Interstate Highway 5 in Fresno, Kern, or Kings county (the “West Side Exemption”).

2. Automatic exemption from regulation of emissions which occur during start-up, shutdown, or breakdown conditions.

3. The application of the four rules and the circumstances under which sources might be exempt from the rules.

4. The absence of explicitly stated averaging times for emissions concentration limits.

5. The absence of interim parametric monitoring in instances of deferred source testing.

6. The overly lenient use of representative testing to fulfill monitoring requirements.

7. The lack of a requirement for a 10% additional reduction of emissions beyond established baselines as an environmental benefit when sources meet rule requirements via an alternative emission control plan.

8. The failure to require physical modification of an exempted unit to assure its operation at or below the rule application capacity threshold when the unit's nameplate capacity exceeds this threshold.

9. The failure to require source tests to be performed on units using each fuel which is allowed to be burned in that unit.

10. The lack of source test requirements for certain units through May 31, 1999.

11. The lack of specificity as to what information is required to be recorded and maintained as part of recordkeeping requirements.

12. The frequency of required compliance testing for internal combustion engines under Rule 4701.

13. The lack of specificity as to what operating records and support documentation are to be maintained by owners claiming exemption to the requirements of Rule 4701.

14. The allowance until May 31, 2001 for Reasonably Available Control Technology (“RACT”) compliance for certain internal combustion engines under Rule 4701.

15. Use of 14 day averaging to determine compliance under the alternative emission control plan provisions of Rule 4701.

16. Excessive director's discretion in specifying what method is to be used to determine the applicable conversion factor from fuel use to engine emissions in the alternative emission control plan provisions of Rule 4701.

17. The inclusion of the factor AE Motor to account for emissions avoided by replacing internal combustion engines with electric motors.

18. The lack of reference to continuous emission monitoring system requirements and reporting requirements of 40 CFR part 60.

Our proposed action contains more information on the basis for this rulemaking and on our evaluation of the submittals.

EPA's proposed action provided a 30-day public comment period. The comment period was subsequently extended for an additional 30 days. During and after the 60-day comment period, we received comments from the following parties.

1. Mark Boese, San Joaquin Valley Unified Air Pollution Control District (“SJVUAPCD” or “the District”); letter dated November 10, 1998.

2. Marc Chytilo, Environmental Defense Center (“EDC”); letter dated November 13, 1998.

3. William A. Brommelsiek, Chevron USA Production Company (“CUPC”); letter dated November 13, 1998.

4. Malcolm C. Weiss, McClintock, Weston, Benshoof, Rochefort, Rubalcava, & MacCuish LLP (“MWB”); letter dated November 12, 1998.

5. David R. Farabee, Pillsbury, Madison, & Sutro LLP (“PMS”); letter dated November 13, 1998.

6. Bruce Nilles, Earthjustice, email dated November 14, 2001.

The letter from EDC expressed unequivocal support for our proposed action. The letter from CUPC concurred with and incorporated by reference the comments submitted by MWB. The email from Earthjustice noted the exemption in Rule 4701 for engines used in agricultural production and requested that this exemption be added to the rule provisions determined by EPA to be deficient. Since this comment was received well after the close of the comment period, EPA simply acknowledges it in the present rulemaking and will defer any determination of whether the agricultural exemption fails to implement CAA requirements until such time as the State of California submits a revised version of this rule. The remainder of the comments and our responses are summarized below.

Comment: SJVUAPCD commented on a number of instances where EPA found that the rules should be made applicable to more sources. These instances include sections 4.1.5 and 5.2 of Rule 4305; and section 3.11 of Rule 4701. SJVUAPCD objected to our findings by referring to their cost effectiveness analyses which they performed while developing these rules. These analyses were based on a cost effectiveness threshold of $9700 per ton of NO X reduced, and SJVUAPCD objected to our proposed requirement that their rules be made applicable to additional sources on the grounds that to do so would incur costs to sources that exceed SJVUAPCD's threshold.

Response: SJVUAPCD provided no information on how and when they selected $9,700 per ton NO X reduced as a cost effectiveness threshold for the subject rules. We believe this figure may have been generated originally by the South Coast Air Quality Management District in the 1980s and has no link to applicable RACT or attainment requirements. In evaluating RACT, we have reviewed analogous requirements contained in other District, state and federal rules and guidance including RACT determinations developed by the California Air Resources Board (CARB). Relevant CARB RACT determinations, for example, incorporate cost effectiveness thresholds as high as $24,000/ton. We retain the specified deficiencies as proposed, but acknowledge that SJVUAPCD may be able to correct them by demonstrating local circumstances that justify alternative RACT limits.

Comment: SJVUAPCD commented on EPA's finding that the emission limits in section 5.1.3 of Rule 4701 should be made more stringent. Again SJVUAPCD's objection was based on their cost effectiveness threshold of $9700 per ton of NO X reduced.

Response: Again, we have reviewed analogous requirements contained in other District, state and federal rules and guidance including RACT determinations developed by CARB and compared these to the limits in section 5.1.3. We retain the specified deficiencies as proposed, but acknowledge that SJVUAPCD may be able to correct them by demonstrating local circumstances that justify alternative RACT limits.

Comment: SJVUAPCD objected to our requirement that an alternate emissions limit be applicable during natural gas curtailment on the grounds that this would necessitate additional emissions testing. Also SJVUAPCD stated that gas curtailments can last longer than the 168 hours allowed by EPA.

Response: EPA does not intend that additional source testing be required and withdraws our comment to this effect in regard to section 6.3 of Rule 4351. However, if gas curtailment extends beyond 168 hours of operation per year EPA does require that the standard emissions limitations for non-gaseous fuel firing be met.

Comment: SJVUAPCD objected to our disallowance of their exemption of sources that operate only during winter months.

Response: The CAA requires that RACT level of controls be implemented at major sources of NO X year-round. This requirement of the CAA is addressed in a March 30, 1994 memorandum “Nitrogen Oxides Questions from the Ohio EPA,” U.S. EPA, Ozone/Carbon Monoxide Programs Branch. The EPA's RACT guidance for volatile organic compounds (VOC) states that seasonal controls are generally not allowed (EPA clarification to Appendix D of the November 24, 1987 Federal Register , “Issues Relating to VOC Regulations Cutpoints, Deficiencies, and Deviations,” revised January 1, 1990). As stated in the NO X Supplement to the General Preamble (57 FR 55625, November 25, 1992), the VOC RACT guidance is generally applicable to NO X RACT. Thus the limitation on seasonal controls also applies to NO X RACT.

Comment: SJVUAPCD objected to our requirement that averaging times for emissions measurements be explicitly stated in the rules.

Response: EPA believes that an explicit averaging time is necessary in order that emissions limits be enforceable on a continuous basis. This is consistent with the CARB RACT determination as well as other SIP-approved rules for these source categories.

Comment: SJVUAPCD commented that the excess emissions provisions in section 5.5.2 of Rule 4305 are consistent with EPA policy.

Response: On September 20, 1999, EPA issued a policy guidance document entitled “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown,” U.S. EPA, Office of Air Quality Planning and Standards. This guidance document is intended to assist states in drafting excess emissions provisions into SIPs that are consistent with the requirements of the federal Clean Air Act. Generally speaking, automatic exemptions from emissions limits are allowed during start-up and shutdown only insofar as control technologies or strategies are shown to be technically infeasible during these periods and are not allowed during malfunctions. The existing exemptions in Rule 4305 apply during malfunction and are not time-limited during start-up and shutdown and thus do not meet the requirements of the Act as interpreted by EPA policy.

Comment: SJVUAPCD expressed concern that EPA's requirement for equipment tune-ups between source tests may result in setting operating parameters at different levels than were established during source tests.

Response: EPA believes that equipment tune-ups, properly conducted, will result in decreased emissions. See, for example, the procedures described in Attachment 1 to the CARB Determination of Reasonably Available Control Technology for Industrial, Institutional, and Commercial Boilers, Steam Generators, and Process Heaters dated July 18, 1991.

Comment: SJVUAPCD expressed concern that requiring source tests for each fuel burned would be impractical since some fuels are burned only as a back-up during natural gas curtailment and then only for a limited period of time.

Response: EPA agrees with SJVUAPCD's concern and withdraws this requirement for section 6.3 of Rule 4351.

Comment: SJVUAPCD objected to EPA's disallowance of representative testing for internal combustion engines.

Response: EPA continues to disapprove of representative testing for internal combustion engines due to the inherently high variability of emissions from units within this source category. This is consistent with other rulemakings EPA has promulgated for this source category.

Comment: SJVUAPCD stated that 14-day averaging is appropriate for evaluating compliance with an Alternative Emissions Compliance Plan (“AECP”) as opposed to a shorter averaging time as would be required for a standard compliance determination.

Response: EPA's interpretation of CAA requirements with respect to long-term (greater than 24 hours) averaging of emissions is contained in section 16.13 of our January 2001 Economic Incentive Program guidance as well as in the January 20, 1984 memorandum “Averaging Times for Compliance with VOC Emission Limits—SIP Revision Policy”, U.S. EPA Office of Air Quality Planning and Standards. Any State that wishes to allow long-term averaging for compliance evaluation for RACT limits must include in the SIP submittal a justification that the long-term average is needed and demonstrate that averaging will not interfere with attainment or other requirements of the Act. Since the submittal for Rule 4701 does not contain this information, EPA cannot approve the long-term averaging provisions in section 8.0 of Rule 4701.

Comment: SJVUAPCD explained that the emission factor EF i in section 8.3.2 of Rule 4701 is the actual NO X emissions as determined by the most recent source test and not a general emission factor as was EPA's concern.

Response: EPA agrees and withdraws our previous comment concerning section 8.3.2 of Rule 4701.

Comment: SJVUAPCD stated that emissions reductions obtained when engines are replaced with an electric motor should be allowed to be included in an AECP so long as the engines are not being replaced solely to comply with RACT limits.

Response: EPA agrees and withdraws our previous comment concerning section 8.4 of Rule 4701.

Comment: MWB and PMS assert that the EPA's determination that NO X sources may contribute significantly to PM-10 levels which exceed the standard in the area and that, therefore, Reasonably Available Control Measures (“RACM”) are required at West Side sources is contrary to documentation provided by the SJVUAPCD.

Response: The SJVUAPCD presented their PM-10 Attainment Demonstration Plan Progress Report 1997-1999 (“Progress Report”) to a hearing of their Governing Board on June 15, 2000. The Progress Report states that during winter months secondary ammonium nitrate is the largest contributor to PM mass and that the core sites were found to be ammonia rich with the formation of secondary ammonium nitrate limited by the amount of NO X rather than ammonia. This finding is consistent with our September 14, 1998 Proposed Rulemaking. RACM is required for the West Side NO X sources because section 189(a)(1)(C) and section 189(e) of the Act require RACM at major stationary sources of PM-10 precursors in PM-10 nonattainment areas independent of separate ozone attainment requirements. The SJVUAPCD has not demonstrated to EPA that the West Side sources do not contribute significantly to PM-10 levels which exceed the standard in the area.

Comment: MWB asserts that the West Side Exemption is required under state law since emissions from that area do not impact other portions of the SJVUAPCD.

Response: Without commenting on the provisions of California state law, EPA notes that our interpretation of the CAA requirements applicable to the subject Rules does not rest on any finding regarding transport of pollutants within the SJVUAPCD.

Comment: MWB asserts that EPA does not have authority under the CAA to grant limited approval and simultaneous limited disapproval of a Rule. MWB further expresses confusion over the effect of such an action.

Response: While the Act does not expressly provide for limited approvals, EPA is using its “gap-filling” authority under section 301(a) of the Act in conjunction with the section 110(k)(3) approval provision to interpret the Act to provide for this type of approval action. EPA routinely publishes limited approval/limited disapproval actions (e.g. we did so for nine different rules in the SJVUAPCD in the year 2000 alone). Under this action EPA approves and can enforce the entire rule as submitted, even those portions that prohibit full approval. For example, upon the effective date of this final rulemaking, the West Side Exemption becomes part of the SIP and will remain in the SIP until such time as EPA approves a SIP revision removing the exemption or EPA promulgates a FIP. The disapproval only applies to whether the submittal meets specific requirements of the Act and does not affect incorporation of the rule into the approved, federally enforceable SIP.

Comment: MWB and PMS assert that since the Rules were submitted to EPA as part of the ozone SIP, EPA lacks the authority to consider whether the provisions of the Rules are sufficient to meet requirements of the CAA related to PM-10 and that, further, this is not the proper time to consider CAA requirements related to PM-10.

Response: As stated in the September 14, 1998 Notice of Proposed Rulemaking, section 189(a)(1)(C) of the Act requires that RACM for the control of PM-10 be implemented in moderate nonattainment areas (including the SJVUAPCD) by December 10, 1993. These control requirements also apply to major stationary sources of PM-10 precursors (including NO X ) under section 189(e) of the Act unless the EPA determines that such sources do not contribute significantly to PM-10 levels which exceed the standard in the area. Section 172(c)(1) provides that RACM shall include, at a minimum, those reductions in emissions from existing sources as may be obtained through the adoption of RACT. The four subject Rules contain provisions waiving RACT requirements under the SIP for facilities on the West Side. This constitutes a failure to implement RACM at these facilities as required under section 189(a)(1)(C) of the Act. Section 110(l) of the Act forbids EPA from approving SIP revisions which would interfere with any applicable requirement, including section 189(a)(1)(C). For this reason EPA must disapprove the West Side Exemption.

Comment: MWB asserts that EPA has inappropriately concluded that Best Available Retrofit Control Technology (“BARCT”), as required under state law, is the same as RACT.

Response: EPA has determined that the control requirements waived under the West Side Exemption are reasonably available. This determination was made by comparing these requirements with those implemented elsewhere in the SJVUAPCD and the State of California, as well as by referring to applicable Determinations of Reasonably Available Control Technology published by the California Air Resources Board. We agree with the commentor that states can adopt requirements more stringent than those required by federal RACT. The SJVUAPCD could, theoretically, demonstrate that NO X emission limits currently applied to the east-side sources are more stringent than RACT, and are therefore not needed to fulfill RACT for the West Side sources. However, some level of control beyond the existing full exemption for the West Side sources is clearly needed to fulfill RACT.

Comment: MWB and PMS noted that EPA objected to certain of the compliance deadlines in Rule 4701. MWB and PMS assert that it would be impractical to accelerate these deadlines.

Response: EPA notes that the deadlines to which the commentors refer have now passed rendering moot this particular objection by EPA.

Comment: MWB and PMS assert that the District has shown, through modeling, that the reduction of NO X emissions from West Side sources would not contribute to the attainment of the ozone National Ambient Air Quality Standards (“NAAQS”) in the District and that therefore the West Side Exemption is consistent with CAA requirements for ozone.

Response: Since our September 14, 1998 Notice of Proposed Rulemaking, EPA on November 8, 2001 (66 FR 56476), published a final rulemaking action reclassifying the San Joaquin Valley Ozone Nonattainment Area from serious to severe nonattainment because the area was unable to attain the ozone standard by the serious area deadline of 1999. This indicates that the previous control strategy and modeling that supported the West Side Exemption were inadequate to attain the standard by the applicable attainment date and that substantial additional reductions of ozone precursors (NO X and/or VOC) will be necessary to achieve attainment of the ozone NAAQS.

Two of the rule provisions listed above as being in conflict with the Act included compliance dates that we proposed as deficient for being too far in the future. However, both of those dates have now passed so those issues are moot. The relevant requirements are found in section 6.3 of Rule 4351 and section 7.3 of Rule 4701. As stated in the above responses, there are three specific instances where we agree with SJVUAPCD's comments and therefore withdraw our proposed finding that the subject rule provisions are deficient. These are found in section 6.3 of Rule 4351, and sections 8.3.2 and 8.4 of Rule 4701. For the remainder of the above listed rule provisions, we have concluded that they are in conflict with the Act and are thus grounds for a limited disapproval. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a limited approval of the submitted rules. This action incorporates the submitted rules into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of the rules. As a result, sanctions will be imposed unless EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months of the effective date of this action. These sanctions will be imposed under section 179 of the Act according to 40 CFR 52.31. In addition, EPA must promulgate a Federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months. Note that the submitted rules have been adopted by the San Joaquin Valley Unified Air Pollution Control District, and EPA's final limited disapproval does not prevent the local agency from enforcing them.

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

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

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

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

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

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely acts on a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

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 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. Thus, Executive Order 13175 does not apply to this rule.

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

This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply act on requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

EPA's disapproval of the state request under section 110 and subchapter I, part D of the Clean Air Act does not affect any existing requirements applicable to small entities. Any pre-existing federal requirements remain in place after this disapproval. Federal disapproval of the state submittal does not affect state enforceability. Moreover, EPA's disapproval of the submittal does not impose any new Federal requirements. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

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

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

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

EPA believes that VCS are inapplicable to today's action because it does not require the public to perform activities conducive to the use of VCS.

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

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

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

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

1. Electronically. You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr180_00.html, a beta site currently under development.

2. In person. The Agency has established an official record for this action under docket control number OPP-301217. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of November 1, 2001 (66 FR 55175) (FRL-6805-7), EPA issued a notice pursuant to section 408 of the FFDCA, 21 U.S.C. 346a(e), as amended by the FQPA (Public Law 104-170) announcing the filing of a pesticide tolerance petition by Biosafe Systems, Inc., 80 Commerce Street, Glastonbury, CT 06033. This notice included a summary of the petition prepared by the petitioner Biosafe Systems, Inc.. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.1197 be amended by establishing an exemption from the requirement of a tolerance for residues of hydrogen peroxide.

New section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” Additionally, section 408(b)(2)(D) requires that the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Hydrogen peroxide at a concentration of 27.17% has a pH of 1.05 at which concentration EPA assumes a toxicity category I for skin and eye irritation. Biosafe has submitted toxicology information from open literature for aqueous solutions containing 6% hydrogen peroxide and for aqueous solutions containing 50% hydrogen peroxide. The concentrate (27.17% hydrogen peroxide) will be diluted with water at the rate of 1:50 or 1:100 or 1:300 and thus, the concentration of hydrogen peroxide in the product at the time of application will range from 0.09% to 0.54%. The information from open literature demonstrated that solutions containing 6% hydrogen peroxide have an acute oral LD 50 ≥ 5,000 milligrams/kilograms (mg/kg) in rats (toxicity category III), an acute dermal LD 50 ≥ 10,000 mg/kg in rabbits (toxicity category IV), and an inhalation LC 50 of 4 milligram/liter (mg/L) (toxicity category IV). The 6% hydrogen peroxide solutions are mild irritants to rabbit skin and cause severe irreversible corneal injury in half of the exposed rabbits (toxicity category I). Toxicology information from open literature demonstrated that solutions which contained 50% hydrogen peroxide have an acute oral LD 50 < 500 mg/kg in rats (toxicity category II), and an acute dermal LD 50 < 1,000 mg/kg in rabbits (toxicity category II). No deaths resulted after an 8-hour exposure of rats to saturated vapors of 90% hydrogen peroxide, LC 50 = 4 mg/L (2,000 ppm). Solutions which contain 50% hydrogen peroxide also are extremely irritating (corrosive) to rabbit eyes (toxicity category I).

EPA has concluded that for food use at an application rate of ≤ 1% hydrogen peroxide has no apparent acute toxicity and subchronic toxicity end points exist to suggest a significant toxicity. An RfD (chronic toxicity) for hydrogen peroxide has not been estimated because of its short half-life in the environment and lack of any residues of toxicological concern. For similar reasons, an additional safety factor was not judged necessary to protect the safety of infants and children. Additionally, hydrogen peroxide is listed by the Food and Drug Administration as Generally Recognized As Safe (GRAS). Additionally, hydrogen peroxide is used to treat food at a maximum level of 0.05% in milk used in cheesemaking, 0.04% in whey, 0.15% in starch and corn syrup, and 1.25% in emulsifiers containing fatty acid esters as bleaching agents (21 CFR 184.1366). As a GRAS substance, hydrogen peroxide may be used in washing or to assist in the lye peeling of fruits and vegetables (21 CFR 173.315).

In examining aggregate exposure, FFDCA section 408 directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

1. Food. For the proposed uses the concentrate of hydrogen peroxide will be diluted with water at the rate of 1:50, 1:100 or 1:300 corresponding to a low concentration of hydrogen peroxide in the product at the time of application (0.09-0.54%). The solution, having a low concentration of hydrogen peroxide, reacts on contact with the surface on which it is sprayed and degrades rapidly to oxygen and water. Therefore, residues in or on treated post-harvest food commodities of the algaecide/fungicide/bactericide hydrogen peroxide are expected to be negligible. Additional sources of the GRAS substance hydrogen peroxide in concentrations range from 0.04% to 1.25% in various foods as cited above (21 CFR 184.1366).

2. Drinking water exposure . At the proposed application rates, the use of hydrogen peroxide as an algaecide, fungicide, and bactericide to treat all post-harvest agricultural food commodities could result in a minimal transfer of residues to potential drinking water sources. This is due to the low application rate and the rapid chemical degradation of hydrogen peroxide into oxygen and water neither of which is of toxicological concern.

There may be minimal amounts of non-dietary exposure to hydrogen peroxide in homes through the infrequent and short topical use of the substance in treating minor skin injuries and in its use in oral mouthwashes. Exposure is expected to be minimal also because of the rapid chemical degradation of hydrogen peroxide into oxygen and water.

Because of the low use rates of hydrogen peroxide, its low toxicity and rapid degradation, EPA does not believe that there is any concern regarding the potential for cumulative effects of hydrogen peroxide with other substances due to a common mechanism of action. Because hydrogen peroxide is not known to have a common toxic metabolite with other substances, EPA has not assumed that hydrogen peroxide has a common mechanism of toxicity with other substances.

Because hydrogen peroxide is of low toxicity, the proposed uses employ low concentrations of hydrogen peroxide, and hydrogen peroxide degrades rapidly following application, EPA concludes that this exemption from the requirement of a tolerance in or on all post-harvest food commodities for hydrogen peroxide when applied at ≤ 1% will not pose a dietary risk under reasonably foreseeable circumstances. Further, the EPA Office of Water has stated that it has seen no new data that contradict the assessment previously given, which is that low concentrations of hydrogen peroxide do not typically persist in drinking water at levels that pose a health risk. Accordingly, EPA concludes that there is a reasonable certainty of no harm to consumers, including infants and children, from aggregate exposure to hydrogen peroxide.

There is no evidence to suggest that hydrogen peroxide in the proposed concentrations will adversely affect the endocrine system.

An analytical method for the detection of residues of hydrogen peroxide is not applicable to this tolerance exemption because of the low concentration of hydrogen peroxide in the product at the time of application ( ≤ 1%) and its rapid degradation to water and oxygen on contact with crops.

There are no Codex Maximum Residue Levels established for residues on hydrogen peroxide.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301217 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 29, 2002.

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

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

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

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

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

3. Copies for the docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit IX.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket number OPP-301217, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule establishes an exemption from the tolerance requirement under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, 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 rule 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. Thus, Executive Order 13175 does not apply to this rule.

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

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

We conclude that North Carolina's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant North Carolina Final authorization to operate its hazardous waste program with the changes described in the authorization application. North Carolina has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in North Carolina, including issuing permits, until the State is granted authorization to do so.

The effect of this decision is that a facility in North Carolina subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent federal requirements in order to comply with RCRA. North Carolina has enforcement responsibilities under its state hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Do inspections, and require monitoring, tests, analyses or reports.

• Enforce RCRA requirements and suspend or revoke permits.

• Take enforcement actions regardless of whether the State has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which North Carolina is being authorized by today's action are already effective, and are not changed by today's action.

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize the state program changes.

If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of the state program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw that part of this rule but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

North Carolina initially received final authorization on December 14, 1984, effective December 31, 1984 (49 FR 48694) to implement its base hazardous waste management program. We granted authorization for changes on March 25, 1986 (51 FR 10211) effective April 8, 1986, August 5, 1988 (53 FR 1988) effective October 4, 1988, February 9, 1989 (54 FR 6290) effective April 10, 1989, September 22, 1989 (54 FR 38993) effective November 21, 1989, January 18, 1991 (56 FR 1929) effective March 19, 1991, April 10, 1991 (56 FR 14474) effective June 9, 1991, July 19, 1991 (56 FR 33206) effective September 17, 1991, April 27, 1992 (57 FR 15254) effective June 26, 1992, December 12, 1992 (57 FR 59825) effective February 16, 1993, June 3, 1993 (58 FR 31474) effective June 3, 1993, January 27, 1994 (59 FR 3792) effective March 28, 1994, April 4, 1994 (59 FR 15633) effective June 3, 1994, June 23, 1994 (59 FR 32378) effective August 22, 1994, November 10, 1994 (59 FR 56000) effective January 9, 1995, September 27, 1995 (60 FR 49800) effective November 27, 1995, April 25, 1996 (61 FR 18284) effective June 24, 1996, October 23, 1998 (63 FR 56834) effective December 22, 1998. North Carolina most recently received authorization for revisions to its program on August 25, 1999 (64 FR 46298) effective October 25, 1999.

On April 05, 2000, North Carolina submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that North Carolina's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we grant North Carolina Final authorization for the following program changes:

North Carolina will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization. At the time the State Program is approved in the new areas, EPA will suspend issuance of Federal permits in the State and terminate those Federal permits issued pursuant to 40 CFR 124.5 and 271.8 upon effectiveness of equivalent state permit conditions. EPA will also transfer any pending permit applications, completed permits, or pertinent file information to the State within thirty (30) days of the approval of the State Program in conformance with the conditions of this agreement. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which North Carolina is not yet authorized.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart PP for this authorization of North Carolina's program until a later date.

North Carolina has not requested authorization to carry out its hazardous waste program in Indian Country within the State, which includes the Cherokee Indian Nation, and therefore is not authorized to carry out its hazardous waste program in Indian Country within the State. As a result, this action has no effect on Indian Country. EPA will continue to implement and administer the RCRA program in these lands.

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action 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 action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this action does not have tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 6, 2000). It does not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175. This action 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 authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) 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 document 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 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 action will be effective April 29, 2002.

On February 6, 2001 the Federal Register published a summary of the Commission's Report and Order adopted October 11, 2001 and released November 5, 2001, along with final rules adopted by the Commission. In § 32.5200 of the final rules, paragraphs (j), (k), and (l) were incorrectly listed as (k), (l), and (m). This document corrects that error by redesignating those pargraphs as (j), (k), and (l).

The rule published on February 6, 2002 at 67 FR 5670, is corrected as follows:

On page 5693, in the third column, in § 32.5200, redesignate paragraphs (k), (l), and (m) as paragraphs (j), (k), and (l).