This rule is issued under Marketing Agreement and Order No. 989 (7 CFR part 989), both as amended, regulating the handling of raisins produced from grapes grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. 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. A 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.

A 2002 RDP for Natural (sun-dried) Seedless (NS) raisins was established in November 2001. A total of 54,086 tons of 2001 crop reserve raisins was allocated to the program. This rule allows producers an additional opportunity to participate in the 2002 RDP. An additional 25,000 tons of 2001 crop reserve raisins has been allocated to the RDP. The additional program is applicable to producers who agree to remove vines from production, and is intended to help the industry reduce its burdensome oversupply. The action was recommended by the RAC at a meeting on May 30, 2002, by a vote of 45 in favor, 1 opposed (member opposed because the program did not provide for a moratorium on replanting), and 1 abstained.

The order provides authority for volume regulation designed to promote orderly marketing conditions, stabilize prices and supplies, and improve producer returns. When volume regulation is in effect, a certain percentage of the California raisin crop may be sold by handlers to any market (free tonnage) while the remaining percentage must be held by handlers in a reserve pool (reserve) for the account of the RAC. Reserve raisins are disposed of through various programs authorized under the order. For example, reserve raisins may be sold by the RAC to handlers for free use or to replace part of the free tonnage they exported; carried over as a hedge against a short crop the following year; or may be disposed of in other outlets not competitive with those for free tonnage raisins, such as government purchase, distilleries, or animal feed. Net proceeds from sales of reserve raisins are ultimately distributed to producers.

The RDP is another program concerning reserve raisins authorized under the order and may be used as a means for controlling overproduction. Authority for the program is provided in § 989.56 of the order. Paragraph (e) of that section provides authority for the RAC to establish, with the approval of USDA, such rules and regulations as may be necessary for the implementation and operation of a RDP. Accordingly, additional procedures are specified in § 989.156.

Pursuant to these sections, the RAC must meet by November 30 each crop year to review raisin data, including information on production, supplies, market demand, and inventories. If the RAC determines that the available supply of raisins, including those in the reserve pool, exceeds projected market needs, it can decide to implement a diversion program, and announce the amount of tonnage eligible for diversion during the subsequent crop year. Producers who wish to participate in the RDP must submit an application to the RAC. The RAC conducts a lottery if the tonnage applied for exceeds what has been allotted. RAC staff then notifies producers whether they have been accepted into the program.

Approved producers curtail their production by vine removal or some other means established by the RAC. Such producers receive a certificate the following fall from the RAC which represents the quantity of raisins diverted. Producers sell these certificates to handlers who pay producers for the free tonnage applicable to the diversion certificate minus the established harvest cost for the diverted tonnage. Handlers redeem the certificates by presenting them to the RAC by December 15 and paying an amount equal to the established harvest cost plus payment for receiving, storing, fumigating, handling, and inspecting the tonnage represented on the certificate. The RAC then gives the handler raisins from the prior year's reserve pool in an amount equal to the tonnage represented on the diversion certificate. The new crop year's volume regulation percentages are applied to the diversion tonnage acquired by the handler (as if the handler had bought raisins directly from a producer).

On November 28, 2001, the RAC met and reviewed data relating to the quantity of reserve raisins and anticipated market needs. With a 2001-02 NS crop estimated at 359,341 tons, and a computed trade demand (comparable to market needs) of 235,850 tons, the RAC projected a reserve pool of 123,491 tons of NS raisins. With such a large anticipated reserve, the RAC announced that 45,182 tons of NS raisins would be eligible for diversion under the initial 2002 RDP. The RAC increased this amount to 54,086 tons at a meeting on January 11, 2002.

Of the 54,086 tons, 49,086 tons were made available to approved producers who submitted applications to the RAC by December 20, 2001, with producers who planned to remove vines receiving priority over those who planned to curtail (abort) production through spur pruning or other means. Section 989.156(d) requires the RAC to give priority to applicants who agree to remove vines. Another 5,000 tons were made available to approved producers who submitted applications to the RAC from December 21, 2001, through May 1, 2002, and planned to remove vines. Authority for this additional opportunity for vine removal is provided in § 989.156(s).

Harvest costs for the initial RDP were announced by the RAC at $340 per ton, and a production cap of 2.0 tons per acre was established for the program. The production cap limits the yield per acre that a producer can claim. The 2.0-ton per acre production cap was established in an interim final rule that was published in the Federal Register on March 15, 2002 (67 FR 11555). A final rule was published on May 14, 2002 (67 FR 34383).

Under the initial RDP, the RAC received applications from producers accounting for 40,788 tons of raisins that would be removed from production by spur pruning vines, and 7,704 tons of raisins that would be removed from production by removing vines. Using the production cap of 2.0 tons per acre, about 3,850 acres should be removed from production through vine removal (7,704 tons divided by 2.0 acres per ton.) The following is a summary of the tonnage allocated and participation in the initial 2002 RDP:

The RAC met on May 30, 2002, and recommended adding an additional opportunity for producers to participate in the 2002 NS RDP in view of the oversupply situation affecting the California raisin industry. Specifically, the RAC allocated an additional 25,000 tons of 2001 NS reserve raisins to the program. The additional program applies to producers who agree to remove vines, and includes a bonus for participating producers. Producers will receive a diversion certificate from the RAC equal to 1.5 times the creditable fruit weight of the raisins produced on the production unit (up to a maximum of 3 tons per acre). For example, if an applicant's verified production is 1.7 tons per acre, the applicant will receive credit for 2.55 tons per acre (1.7 tons times 1.5). If an applicant's verified production is 2.5 tons per acre, the applicant will receive credit for 3.0 tons per acre (2.0 tons times 1.5). Authority for the RAC to issue diversion certificates in an amount greater than the creditable fruit weight produced on the production unit is provided in § 989.56(c) of the order. The bonus is intended to encourage participation in the program.

The additional opportunity to participate in the 2002 RDP is available to producers who did not participate in the initial 2002 program (“new participants”), and to approved participants in the initial 2002 RDP who curtailed their production by spur pruning their vines (“early season spur pruners”). Producers who wish to participate in the program must file an application with the RAC by July 8, 2002. Priority will be given to new participants. If the production applied for exceeds the 25,000 tons added to the program, a lottery will be held to allocate the tonnage among the applicants, pursuant to applicable procedures specified in § 989.156(d).

Harvest costs for the additional opportunity program for “early season spur pruners” will remain at $340 per ton, while harvest costs for new participants will be $100 per ton. Because harvest costs are deducted from the payment producers receive from handlers for their diversion certificates, a reduction in harvest costs results in a larger payment to producers for the certificates. The reduction in harvest costs for new participants and resulting increased payment is intended to take into account the cultural costs incurred by such producers thus far in producing a 2002 crop.

Under the additional opportunity program, vines must either be removed, or chain sawed at the base by July 31, 2002. RAC staff will verify that the vines have been removed or adequately chain sawed. RAC staff will re-inspect vines that have been chain sawed to ensure that the remainder of the vine is removed at a later date.

Accordingly, a new paragraph (u) is added to § 989.156 that specifies the provisions of the additional opportunity program with applicable time frames. In addition, necessary conforming changes have been made to paragraphs (a), (q), and (s) of § 989.156.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial 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 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 20 handlers of California raisins who are subject to regulation under the order and approximately 4,500 raisin producers in the regulated area. Small agricultural firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. Thirteen of the 20 handlers subject to regulation have annual sales estimated to be at least $5,000,000, and the remaining 7 handlers have sales less than $5,000,000. No more than 7 handlers, and a majority of producers, of California raisins may be classified as small entities.

This rule revises § 989.156 of the order's rules and regulations regarding the RDP. Under a RDP, producers receive certificates from the RAC for curtailing their production to reduce burdensome supplies. The certificates represent diverted tonnage. Producers sell the certificates to handlers who, in turn, redeem the certificates with the RAC for raisins from the prior year's reserve pool. A 2002 RDP for NS raisins was established in November 2001, and 54,086 tons of 2001 crop reserve raisins were allocated to the program. This rule allows producers an additional opportunity to participate in the 2002 RDP in view of the oversupply situation affecting the California raisin industry. An additional 25,000 tons of 2001 crop reserve raisins has been allocated to the RDP. The additional program is applicable to producers who agree to remove vines from production, and is intended to help the industry reduce its burdensome oversupply. Authority for this action is provided in § 989.56(e) of the order.

Regarding the impact of this action on affected entities, the additional opportunity program is intended to help the industry as a whole reduce its burdensome oversupply. The California raisin industry has experienced successive crop years of high production. The 10-year average for deliveries of NS raisins to handlers is 344,303 tons. NS raisin deliveries for the 2000 crop year were 432,616 tons, and deliveries to-date for the 2001 crop year are about 375,000 tons. As previously stated, the initial RDP should remove about 3,850 acres from production. It is estimated that the additional opportunity program could remove another 8,350 acres from production, for a combined total of about 12,200 acres, which would help the industry reduce its oversupply.

Regarding the impact of this action on producers, the program will provide producers with an additional opportunity to earn some income for removing their vineyards from production. Participating producers will receive a bonus for removing their vines. They will receive a diversion certificate from the RAC equal to 1.5 times the creditable fruit weight of the raisins produced on the production unit (up to a maximum of 3 tons per acre). Producers will sell their certificates to handlers this fall and be paid for the free tonnage applicable to the diversion certificate minus the harvest cost for the diverted tonnage. Applicable harvest costs for the additional RDP were announced by the RAC at $100 per ton for “new participants” (producers who did not participate in the initial 2002 RDP), and $340 per ton for “early season spur pruners” (approved participants in the initial 2002 RDP who curtailed production by spur pruning their vines).

Regarding the impact on handlers, handlers will redeem certificates for 2001 crop NS raisins and pay the RAC the applicable harvest cost ($100 per ton for new participants, and $340 per ton for early season spur pruners) plus payment for bins ($20 per ton) and for receiving, storing, fumigating, handling ($46 per ton), and inspecting ($9.00 per ton). The program will return $175 per ton for new participant certificates, and $415 per ton for remaining certificates to the 2001 NS reserve pool. Such income to the reserve pool could be used to pay remaining pool expenses or be distributed to 2001 NS reserve pool equity holders (producers). Thus, all such equity holders could potentially benefit from this action.

Several alternatives to the recommended action were considered by the RAC. There was discussion at the meeting regarding whether the program should include a moratorium on replanting. Some members expressed concern that growers may remove their vines and replant with new systems that produce higher yields, thereby contributing to more oversupply. However, there is no authority for a moratorium on replanting.

There was some discussion at the meeting about the impact of adding an additional 25,000 tons of 2001 crop NS reserve raisins to the 2002 supply. Through the order's mathematical formula for volume regulation, additional 2002 supply will reduce the 2002 free tonnage percentage. This could reduce returns for producers since producers are paid a field price for the free tonnage percentage of their crop. There was some consideration of allowing handlers to redeem a portion of their certificates for 2001 reserve raisins and a portion for 2002 crop reserve raisins. However, the current order only provides authority for handlers to redeem certificates for reserve raisins from the prior crop year.

There was also discussion at the meeting about giving smaller producers some priority in the program. For example, the program could allow 2 days for producers with production units of 80 acres to apply, and then the program could be opened up to other applicants. However, this was not recommended over a program providing the same opportunity to all eligible producers.

This rule imposes no additional reporting or recordkeeping requirements on either small or large raisin handlers. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirement referred to in this rule (i.e., the RDP application) has been approved previously by the Office of Management and Budget (OMB) under OMB Control No. 0581-0178. 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. Finally, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

Further, the RAC's meeting on May 30, 2002, where this action was deliberated was a public meeting widely publicized throughout the raisin industry. All interested persons were invited to attend the meeting and participate in the industry's deliberations. Finally, all interested persons are invited to submit information on the regulatory and information impact of this action on small businesses.

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.

A 15-day comment period is provided to allow interested persons to comment on this rule. Fifteen days is deemed appropriate taking into account producers must submit applications to the RAC by July 8, 2002, to participate in the program.

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

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) This rule needs to be in effect as soon as possible because producers must submit applications to participate in the program to the RAC by July 8, 2002; (2) this rule allows producers an additional opportunity to participate in the 2002 RDP and earn some income for removing their vines; (3) producers are aware of this action which was recommended by the RAC at a public meeting; and (4) this interim final rule provides a 15-day comment period for written comments and all comments timely received will be considered prior to finalization of this rule.

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay certification of the airplane and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance; however, the FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions in light of the comments we receive.

If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On October 9, 2001, Piedmont Hawthorne—Associated Air Center, P.O. Box 540728 (8321 Lemmon Ave, Love Field), Dallas, Texas 75234, applied for a Supplemental Type Certificate (STC) to modify a Boeing Model 737-700 IGW airplane (BBJ serial number 32807). The Boeing Model 737-700 IGW airplane is one of the Boeing Business Jet (BBJ) variants of Model 737 airplanes. It is a large transport category airplane powered by two CFM 56 engines, with a maximum takeoff weight of 171,000 pounds. The modified Boeing Model 737-700 IGW airplane (BBJ serial number 32807) operates with a 2-pilot crew, up to 4 flight attendants, and can hold up to 18 passengers.

The modification incorporates the installation of an electrically heated surface, called a cooktop. Cooktops introduce high heat, smoke, and the possibility of fire into the passenger cabin environment. These potential hazards to the airplane and its occupants must be satisfactorily addressed. Since existing airworthiness regulations do not contain safety standards addressing cooktops, special conditions are therefore issued.

Under the provisions of 14 CFR 21.101, Piedmont Hawthorne—Associated Air Center must show that the Boeing Model 737-700 IGW airplane (BBJ serial number 32807), as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate Data Sheet No. A16WE, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate Data Sheet No. A16WE are part 25, as amended by Amendments 25-1 through 25-77, with reversions to earlier Amendments, voluntary compliance to later Amendments, special conditions, equivalent safety findings, and exemptions listed in the type certificate data sheet.

If the Administrator finds that the applicable airworthiness regulations (that is, part 25 as amended) do not contain adequate or appropriate safety standards for the Boeing Model 737-700 IGW airplane (BBJ serial number 32807) modified by Piedmont Hawthorne—Associated Air Center, because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 737-700 IGW airplane (BBJ serial number 32807) must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of part 36.

Special conditions, as defined in § 11.19, are issued in accordance with § 11.38, and become part of the type certification basis in accordance with § 21.101(b)(2).

Special conditions are initially applicable to the model for which they are issued. Should Piedmont Hawthorne—Associated Air Center apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101(a)(1).

As noted earlier, the modification of the Boeing Model 737-700 IGW airplane (BBJ serial number 32807) will include installation of a cooktop in the passenger cabin. Cooktops introduce high heat, smoke, and the possibility of fire into the passenger cabin environment. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards to protect the airplane and its occupants from these potential hazards. Accordingly, this system is considered to be a novel or unusual design feature.

Currently, ovens are the prevailing means of heating food on airplanes. Ovens are characterized by an enclosure that contains both the heat source and the food being heated. The hazards represented by ovens are thus inherently limited, and are well understood through years of service experience. Cooktops, on the other hand, are characterized by exposed heat sources and the presence of relatively unrestrained hot cookware and heated food, which may represent unprecedented hazards to both occupants and the airplane.

Cooktops could have serious passenger and airplane safety implications if appropriate requirements are not established for their installation and use. These special conditions apply to cooktops with electrically powered burners. The use of an open flame cooktop (for example natural gas) is beyond the scope of these special conditions and would require separate rulemaking action. The requirements identified in these special conditions are in addition to those considerations identified in Advisory Circular (AC) 25-10, “Guidance for Installation of Miscellaneous Non-required Electrical Equipment,” and those in AC 25-17, “Transport Airplane Cabin Interiors Crashworthiness Handbook.” The intent of these special conditions is to provide a level of safety that is consistent with that on similar airplanes without cooktops.

As discussed above, these special conditions are applicable to the Boeing Model 737-700 IGW airplane (BBJ serial number 32807) modified by Piedmont Hawthorne—Associated Air Center. Should Piedmont Hawthorne—Associated Air Center apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

This action affects only certain novel or unusual design features on the Boeing Model 737-700 IGW airplane (BBJ serial number 32807) modified by Piedmont Hawthorne—Associated Air Center. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of the special conditions for this airplane has been subjected to notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

On April 29, 2002, the FAA proposed to amend Part 71 of the Federal Aviation Regulations (14 CFR part 71) by amending Class D airspace at Marietta Dobbins ARB (NAS Atlanta), GA, (67 FR 20919). Class D airspace designations for airspace areas extending upward from the surface of the earth are published in Paragraph 5000 of FAA Order 7400.9J, dated August 31, 2001, and effective September 16, 2001, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designations listed in this document will be published subsequently in the Order.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) amends Class D airspace at Marietta Dobbins ARB (NAS Atlanta), GA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation, as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The Rule was issued by the Commission in 1979, 44 FR 66466 (Nov. 19, 1979), in response to a directive in the Energy Policy and Conservation Act of 1975. 1 The Rule covers several categories of major household appliances and other consumer products including water heaters (this category includes storage-type water heaters, gas-fired instantaneous water heaters, and heat pump water heaters), room air conditioners, furnaces (this category includes boilers), ad central air conditioners (this category includes heat pumps).

The Rule requires manufacturers of all covered appliances and pool heaters to disclose specific energy consumption or efficiency information (derived from the DOE test procedures) at the point of sale in the form of an “EnergyGuide” label and in catalogs. It also requires manufacturers of furnaces, central air conditioners, and heat pumps either to provide fact sheets showing additional cost information, or to be listed in an industry directory showing the cost information for their products. The Rule requires manufacturers to include, on labels and fact sheets, an energy consumption or efficiency figure and a “range of comparability.” This range shows the highest and lowest energy consumption or efficiencies for all comparable appliance models so consumers can compare the energy consumption or efficiency of other models (perhaps competing brands) similar to the labeled model. The Rule also requires manufacturers to include, on labels for some products, a secondary energy usage disclosure in the form of an estimated annual operating cost based on a specified DOE national average cost for the fuel the appliances uses.

Section 305.8(b) of the Rule requires manufacturers, after filing an initial report, to report certain information annually to the Commission by specified dates for each product type. 2 These reports, which are to assist the Commission in preparing the ranges of comparability, contain the estimated annual energy consumption or energy efficiency ratings for the appliances derived from tests performed pursuant to the DOE test procedures. Because manufacturers regularly add new models to their lines, improve existing models, and drop others, the data base from which the ranges of comparability are calculated is constantly changing. To keep the required information consistent with these changes, under § 305.10 of the Rule, the Commission will publish new ranges if an analysis of the new information indicates that the upper or lower limits of the ranges have changed by more than 15%. Otherwise, the Commission will publish a statement that the prior ranges remain in effect for the next year.

Manufacturers have submitted data for room air conditioners, water heaters (including storage-type, gas-fired instantaneous, and heat pump water heaters), furnaces, boilers, and pool heaters. The Commission did not receive any data for heat pump water heaters this year. Accordingly, the Commission is amending the ranges of comparability for these products to eliminate the high and low endpoints. As long as the amended ranges published here are in effect, manufacturers that introduce new heat pump water heater models in the future should look to the requirements in § 305.10(b) of the Rule for guidance in preparing their labels. Manufacturers of heat pump water heaters must base the disclosures of estimated annual operating cost required at the bottom of EnergyGuides for these products on the 2002 Representative Average Unit Costs of Energy for electricity (8.28 cents per kiloWatt-hour) that were published by DOE on April 24, 2002 (67 FR 20104), and by the Commission on June 7, 2002 (67 FR 39269).

The ranges of comparability for room air conditioners, storage-type water heaters, gas-fired instantaneous water heaters, furnaces, boilers, and pool heaters have not changed significantly enough to warrant a change to the current ranges. Therefore, the current ranges for these products will remain in effect until further notice.

This means that manufacturers of storage-type water heaters, furnaces, and boilers must continue to use the ranges that were published on September 23, 1994 (59 FR 48796). These manufacturers must continue to base the disclosures of estimated annual operating cost required at the bottom of EnergyGuides for these products on the 1994 Representative Average Unit Costs of Energy for electricity (8.41 cents per kilo Watt-hour), natural gas (60.4 cents per therm), propane (98 cents per gallon), and/or heating oil ($1.05 per gallon) that were published by DOE on December 29, 1993 (58 FR 68901), and by the Commission on February 8, 1994 (59 FR 5699).

Manufacturers of gas-fired instantaneous water heaters must continue to use the ranges of comparability that were published on December 20, 1999 (64 FR 71019). They must continue to base the disclosures of estimated annual operating cost required at the bottom of EnergyGuides for these products in the 1999 Representatives Average Unit Costs of Energy for natural gas (68.8 cents per therm) and propane (77 cents per gallon) that were published by DOE by January 5, 1999 (64 FR 487) and by the Commission on February 17, 1999 (64 FR 7783).

Manufacturers of pool heaters must continue to use the ranges that were published on August 21, 1995 (60 FR 43367). Manufacturers of room air conditioners must continue to use the corrected ranges for room air conditioners that were published on November 13, 1995 (60 FR 56945, at 46949). Manufacturers of room air conditioners must continue to base the disclosures of estimated annual operating cost required at the bottom of EnergyGuides for these products on the 1995 Representative Average Unit Costs of Energy for electricity (8.67 cents per kilo Watt-hour), natural gas (63 cents per therm), propane (98.5 cents per gallon), and/or heating oil ($1.008 per gallon) that were published by DOE on January 5, 1995 (60 FR 1773), and by the Commission on February 17, 1995 (60 FR 9295).

For up-to-date tables showing current range and cost information for all covered appliances, see the Commission's Appliance Labeling Rule web page at http://www.ftc.gov/appliances.

The amendments published in this notice involve routine, technical and minor, or conforming changes to the Rule's labeling requirements. These technical amendments involve a change to the ranges for heat pump water heaters covered by the Rule. Accordingly, the Commission finds for good cause that public comment and a 30-day effective date for these technical, procedural amendments are impractical and unnecessary (5 U.S.C. 553(b)(A)(B) and (d)).

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

In the 1988 NPR, the Commission stated that the Rule contains disclosure and reporting requirements that constitute “information collection requirements” ad defined by 5 CFR 1320.7(c), the regulation that implements the Paperwork Reduction Act (“PRA”). 3 The Commission noted that the Rule had been reviewed and approved in 1984 by the Office of Management and Budget (“OMB”) and assigned OMB Control No. 3084-0068. OMB has extended its approval for its recordkeeping and reporting requirements until September 30, 2004. The amendments now being adopted do not change the substance or frequency of the recordkeeping, disclosure, or reporting requirements and, therefore, do not require further OMB clearance.

The Anabolic Steroids Control Act (ASCA) of 1990 (Title XIX of Pub. L. 101-647) placed anabolic steroids into Schedule III of the Controlled Substances Act (CSA) (21 U.S.C. 801 et seq. ). Section 1902(b)(41)(B)(i) of the ASCA provides for the exclusion of any anabolic steroid which the Secretary of Health and Human Services has approved for administration through implants to cattle or other nonhuman species. The procedure for implementing this section of the ASCA is described in § 1308.25 of Title 21 Code of Federal Regulations. The purpose of this rule is to identify three products which the Deputy Assistant Administrator, Office of Diversion Control, finds meet the excluded veterinary anabolic steroid implant product criteria.

The Deputy Assistant Administrator, having reviewed the applications which were made in conformance with 21 U.S.C. 802(41)(B)(i) and 21 CFR 1308.25, finds that the anabolic steroid products, Revalor®-IS, Revalor®-IH and Revalor®-200, are expressly intended for administration through implants to cattle and have been approved by the Secretary of Health and Human Services for such use. Therefore, pursuant to the authority vested in the Attorney General by Title XIX of Pub. L. 101-647 as delegated to the Administrator of DEA pursuant to 21 U.S.C. 871(a) and 28 CFR 0.100, the Deputy Assistant Administrator hereby orders that the following anabolic steroid veterinary implant products be added to the list of products excluded from application of the CSA and referenced in 21 CFR 1308.26(a).

The exemption of these products relates to their production, distribution, and use in animals only. If any person distributes, dispenses or otherwise diverts these products to use in humans, he/she shall be deemed to have distributed a Schedule III controlled substance and may be prosecuted for CSA violations.

Section 102(41)(b) of the CSA (21 U.S.C. 802(41)(B)(i)) states that the term “anabolic steroid” “does not include an anabolic steroid which is expressly intended for administration through implants to cattle or other nonhuman species and which has been approved by the Secretary of Health and Human Services for such administration.” Title 21 CFR 1308.25(a) permits any person to apply for an exemption from any schedule of the CSA for any product meeting the above criteria. Therefore, in compliance with 21 CFR 1308.25, and having been presented with the proper documentation, DEA is issuing this order that the three identified products are excluded from the definition of anabolic steroid pursuant to 21 U.S.C. 802(41)(B)(i).

Interested persons are invited to submit their comments in writing with regard to this interim rule. If any comments or objections raise significant issues regarding any finding of fact or conclusion of law upon which this order is based, the Deputy Assistant Administrator shall immediately suspend the effectiveness of this order until she may reconsider the application in light of the comments and objections filed. Thereafter, the Deputy Assistant Administrator shall reinstate, revoke, or amend her original order as she determines appropriate.

The granting of excluded status relieves persons who handle the excluded products in the course of legitimate business from the registration, record keeping, security, and other requirements imposed by the CSA. Accordingly, the Deputy Assistant Administrator certifies that this action will not have a significant economic impact upon a substantial number of small entities whose interests must be considered under the Regulatory Flexibility Act (5 U.S.C. 605(b)).

It has been determined that drug control matters are not subject to review by the Office of Management and Budget (OMB) pursuant to the provisions of Executive Order 12866. Accordingly, this action is not subject to those provisions of Executive Order 12778 which are contingent upon review by OMB. Nevertheless, the Deputy Assistant Administrator has determined that this is not a “major rule,” as that term is used in Executive Order 12866, and that it would otherwise meet the applicable standards of Sections 2(a) and 2(b)(2) of Executive Order 12778.

This interim rule meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform.

This interim rule does not preempt or modify any provision of state law; nor does it impose enforcement responsibilities on any state; nor does it diminish the power of any state to enforce its own law. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.

This interim rule will not result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This interim rule is not a major rule as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

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 . Information was made available to the Coast Guard in insufficient time to publish an NPRM or for publication in the Federal Register 30 days prior to the event. Publishing an NPRM and delaying its effective date would be contrary to public interest since immediate action is needed to protect participating vessels and mariners as well as the public from the hazards associated with this event.

The City of Mobile, Alabama is sponsoring a Parade of Tall Ships, titled SAIL MOBILE 2002, in Mobile Bay and Mobile River as part of the city's tri-centennial celebration. Events are scheduled from July 3, 2002 through July 8, 2002. Participating vessels, including tall ships, will be at anchorage in Mobile Bay on July 3, 2002. On July 4, 2002, the participating vessels will transit from anchorage up the Mobile Bay Ship Channel to the Mobile River where they will make a 180 degree turn just south of the Cochran Bridge and proceed to their designated berth or anchorage. Participating vessels are scheduled to remain in Mobile until July 8, 2002. The Coast Guard expects a minimum of 2,000 spectator craft for this event.

The Coast Guard is establishing a temporary regulated area to provide for the safety of spectators and participants of SAIL MOBILE 2002. This regulated area is intended to protect participating vessels and spectators by restricting vessel traffic around participating vessels, establishing spectator viewing areas, and establishing temporary anchorages for participating vessels. All vessels, other than officially registered participants of SAIL MOBILE 2002 are prohibited from using the participant anchorage areas as described in this rule.

The regulated area includes all waters of Mobile Bay from the mouth of the bay between Fort Morgan and Dauphin Island to the Mobile River south of the Cochran Bridge near mile 3 of the Mobile River. Within this regulated area there will be two participant anchorages for participating vessels only. Only vessels officially registered in the Parade of Tall Ships will be permitted to anchor in these areas.

Participant Anchorage 1 will be in effect from 6 a.m. on July 3, 2002 to 11 p.m. on July 4, 2002, and will include that portion of the Mobile Bay within the following boundaries: 30°14′48″ N, 88°02′14″ W to 30°14′47″ N, 88°00′53″ W to 30°14′12″ N, 88°00′55″ W to 30°13′47″ N, 88°01′52″ W to 30°14′48″ N, 88°02′14″ W [NAD 83].

Participant Anchorage 2 will be in effect from 11 a.m. on July 4, 2002 to 5 p.m. on July 8, 2002, and will include all the waters of the Mobile River within the following boundaries: 30°41′36″ N, 88°02′04″ W to 30°41′04″ N, 88°02′06″ W to 30°41′31″ N, 88°02′05″ W to 30°41′32″ N, 88°02′02″ W to 30°41′36″ N, 88°02′04″ W [NAD 83].

While participating vessels are underway within the regulated area, other vessels may not approach within 100 yards of the participating vessel without the express permission of the Coast Guard Patrol Commander. While participating vessels are at anchor or moored, other vessels may not approach within 50 feet of the participating vessel without the express permission of the Coast Guard Patrol Commander. The Coast Guard Patrol Commander will be the Captain of the Port, Mobile or a designated commissioned, warrant or petty officer of the U.S. Coast Guard.

Event organizers plan to establish spectator viewing areas for vessels along the parade route in the Mobile River. Spectator areas will be located outside of the Mobile Shipping Channel in the Mobile River south of the Cochran Bridge. Markers along the channel south of the Cochran Bridge will outline these spectator areas. More precise information regarding these spectator areas will be published via local notices and general media as soon as the information is available. Spectator vessels are not allowed outside these specially marked areas 30 minutes immediately prior to and during the passing of the Parade of Tall Ships without the express permission of the Coast Guard Patrol Commander. The parade is scheduled from 11 a.m. to 5 p.m. on July 4, 2002.

These special local regulations are necessary to ensure the safety of life and property on the navigable waters of the United States. It may be necessary for the Coast Guard to establish additional safety or security zones in addition to these rules to safeguard dignitaries and certain vessels participating in the event. If the Coast Guard deems it necessary to establish such zones at a later date, the details of those zones may be announced separately via the Federal Register , Local Notice to Mariners, Marine Safety Broadcast, or any other means available.

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).

The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This rule will only be in effect for a short period of time, and notifications to the marine community will be made through broadcast notice to mariners. The impacts on routine navigation are expected to be minimal. Although the regulated area will apply to the entire Mobile Bay and part of the Mobile River, normal traffic will primarily be affected only on July 4, 2002. Vessels needing to transit within 100 yards of an underway participating vessel or 50 feet of an anchored or moored participating vessel may seek to gain permission from the Coast Guard Patrol Commander or his designated on-scene representative.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will 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 for the reasons enumerated under the Regulatory Evaluation section above. If you are a small business entity and are significantly affected by this regulation please contact LT Jeff Morgan or LTJG Mark Sawyer, Marine Safety Office Mobile, Operations Department, at (251) 441-5121.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking. 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, paragraphs 34(h) and 34(f) of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. 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 a NPRM. Publishing a NPRM, which would incorporate a comment period before a final rule could be issued, and delaying the rule's effective date would be contrary to the public interest since immediate action is needed to protect the public, ports and waterways of the United States.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The Coast Guard will issue a broadcast notice to mariners to advise mariners of the restriction. The Coast Guard will publish a NPRM proposing to make these temporary security zones permanent and requesting public comment.

The terrorist attacks of September 2001 killed thousands of people and heightened the need for development of various security measures throughout the seaports of the United States, particularly those vessels and facilities which are frequented by foreign nationals and maintain an interest to national security. Following these attacks by well-trained and clandestine terrorists, national security and intelligence officials have warned that future terrorists attacks are likely. The Captain of the Port of Tampa has determined that these security zones are necessary to protect the public, ports, and waterways of the United States from potential subversive acts.

These zones are based on temporary security zones for vessels, waterfront facilities and bridges that will soon expire. The following five, existing temporary final rules were published in the Federal Register:

Security Zone for Crystal River, FL (66 FR 62940, December 4, 2001). This rule created a temporary fixed security zone around the Florida Power Crystal River nuclear power plant located at the end of the Florida Power Corporation Channel, Crystal River, Florida.

Security Zone Sunshine Skyway Bridge, Tampa, FL (66 FR 65838, December 21, 2001). This rule created temporary fixed security zones 100 feet around all bridge supports and rocky outcroppings at the base of the supports for the Sunshine Skyway Bridge in Tampa Bay.

Security Zone Tampa, FL (67 FR 8186, February 22, 2002). This rule created temporary security zones 100 yards around moored vessels carrying or transferring Liquefied Petroleum Gas (LPG), Anhydrous Ammonia (NH3) and/or grade “A” and “B” flammable liquid cargo. Additionally, any vessel transiting within 200 yards of moored vessels carrying or transferring Liquefied Petroleum Gas (LPG), Anhydrous Ammonia (NH3) and/or grade “A” and “B” cargo must proceed through the area at the minimum speed necessary to maintain safe navigation.

Security Zone Cruise Ships Tampa, FL (67 FR 10618, March 8, 2002). This rule created temporary security zones 100 yards around cruise ships moored in the Port of Tampa. Additionally, any vessel transiting within 200 yards of a moored cruise ship must proceed through the area at the minimum speed necessary to maintain safe navigation.

Security Zone St. Petersburg Harbor, FL (67 FR 36098, May 23, 2002). This rule established temporary fixed security zones around all Coast Guard and waterfront facilities and moorings in St. Petersburg Harbor, FL.

On December 4, 2001, the Captain of the Port issued a temporary rule titled “Security Zone Moving Cruise Ships, Tampa, FL” that has not yet been published in Federal Register . On April 16, 2002, the Captain of the Port issued a temporary rule titled “Security Zone facilities, Tampa, FL” that has not yet been published in Federal Register . [This April 2002 rule was subsequently published on June 14, 2002 (67 FR 40861).

This temporary final rule published today combines many security zones in the Tampa Bay area into one rule. These zones will be located in the following areas:

(1) Fifty-yard security zones around all piers and waterfront facilities in Port Sutton, East Bay, Hooker's Point, Sparkman Channel, Ybor Channel and portions of Garrison Channel;

(2) Two hundred-yard minimal speed zone and a one hundred-yard security zone around moored vessels carrying or transferring Liquefied Petroleum Gas (LPG), Anhydrous Ammonia (NH3) and/or grade “A” and “B” flammable liquid cargo, and moored cruise ships;

(3) One hundred-yard security zones around all cruise ships east of the Tampa Bay “T” sea buoy entering or departing Tampa Bay. Additionally, any vessel transiting within 200 yards of a moving cruise ship must proceed through the area at the minimum speed necessary to maintain safe navigation,

(4) One hundred-feet security zones around Coast Guard waterfront facilities and moorings in Saint Petersburg (Bayboro) Harbor;

(5) All waters of the Florida Power Corporation Channel and Demory Gap Channel around the Florida Power Crystal River nuclear power plant; and

(6) One hundred-feet security zones around all bridge supports and rocky outcroppings at the base of the supports for the Sunshine Skyway Bridge to October 31, 2002, to ensure public safety and security in the Tampa Bay area.

The Coast Guard will, during the effective period of this temporary final rule, complete notice and comment rulemaking for permanent regulations.

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 minimal and that a full Regulatory Evaluation under paragraph 10e of the regulation policies and procedures of DOT is unnecessary. This temporary rule may have some impact on the public, but these potential impacts will be minimized for the following reasons: there is ample room for vessels to navigate around security zones, and there are several locations for recreational and commercial fishing vessels to fish throughout the Tampa Bay Region, and the Captain of the Port may, on a case-by-case basis allow persons or vessels to enter a security 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.

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 majority of the zones are limited in size, leaving ample room for vessels to navigate around the zones. The zones will not significantly impact commuter and passenger vessel traffic patterns, and mariners will be notified of the zones via local notice to mariners and marine broadcasts. Also, the Captain of the Port may allow entrance into a zone on a case-by-case basis.

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

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small 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 modifies existing collection of information under the Paperwork Reduction Act (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. Although this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this 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.

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

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 relationships between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

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

On February 20, 2002, we published a temporary final rule (TFR) for cruise ships and tank vessels in San Francisco Bay and Delta ports entitled “Security Zones; San Francisco Bay, San Francisco, CA” in the Federal Register (67 FR 7611) under § 165.T11-098. It has been in effect since December 21, 2001 and is set to expire 11:59 p.m. PDT on June 21, 2002.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b), the Coast Guard finds that good cause exists for not publishing an NPRM. Due to the terrorist attacks on September 11, 2001, and the warnings given by national security and intelligence officials, there is an increased risk that further subversive or terrorist activity may be launched against the United States. A heightened level of security has been established around all cruise ships and tank vessels in San Francisco Bay and Delta ports. These security zones are needed to protect the United States and more specifically the people, waterways, and properties near the ports.

The original temporary final rule was urgently required to prevent possible terrorist strikes against the United States and more specifically the people, waterways, and properties in and near the San Francisco and Delta ports. It was anticipated that we would assess the security environment at the end of the effective period to determine whether continuing security precautions were required and, if so, propose regulations responsive to existing conditions. We have determined the need for continued security regulations exists.

The Coast Guard will utilize the extended effective period created by this TFR to engage in notice and comment rulemaking to develop permanent regulations tailored to the present and foreseeable security environment with the Captain of the Port (COTP) San Francisco Bay. Therefore, the public will still have the opportunity to comment on this rule. The measures contemplated by the rule were intended to facilitate ongoing response efforts and prevent future terrorist attack. In this case, issuing a NPRM would delay the effective date of this rule; such a delay would be contrary to the public interest insofar as it may render individuals and facilities within and adjacent to cruise ships and tank vessels vulnerable to subversive activity, sabotage or terrorist attack. The measures contemplated by this rule are intended to prevent future terrorist attacks against individuals and facilities within or adjacent to cruise ships and tank vessels. Immediate action is required to accomplish these objectives and necessary to continue safeguarding these vessels and the surrounding area. Any delay in the effective date of this rule is impractical and contrary to the public interest.

The Coast Guard will be publishing a NPRM to establish permanent security zones that are temporarily effective under this rule. This revision preserves the status quo within the Ports while permanent regulations are developed.

For the reasons stated in the paragraphs above under 5 U.S.C. 553(d)(3), the Coast Guard also 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 hijackings and attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia, there is an increased risk that subversive activity could be launched by vessels or persons in close proximity to the San Francisco Bay and Delta ports, against cruise ships and tank vessels entering, departing, or moored within the San Francisco Bay and Delta ports. 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 has established a security zone around cruise ships and tank vessels to protect persons, transiting vessels, adjacent waterfront facilities, and the adjacent land of the San Francisco Bay and Delta ports. These security zones are necessary to prevent damage or injury to any vessel or waterfront facility, and to safeguard ports, harbors, or waters of the United States near the San Francisco and Delta ports.

As of today, the need for security zones around cruise ships and tank vessels still exist. This temporary final rule will extend these zones that were set to expire June 21, 2002, for 6 months—from June 21, 2002, to December 21, 2002. This will allow the Coast Guard time to publish a notice of proposed rulemaking (NPRM) in the Federal Register , which will include a public comment period, and for a final rule to be put into effect without there being an interruption in the protection provided by cruise ship and tank vessel security zones.

This regulation extends the current security zone that prohibits all vessels and people from approaching cruise ships and tank vessels that are underway or moored in the San Francisco Bay and Delta ports. Specifically, no vessel or person may close to within 100 yards of a cruise ship or tank vessel that is entering, moored, or departing the San Francisco Bay and Delta ports.

A security zone is automatically activated when a cruise ship or tank vessel passes a line drawn between San Francisco Main Ship Channel buoys 7 and 8 (LLNR 4190 & 4195, positions 37°46.9′ N, 122°35.4′ W & 37°46.5′ N, 122°35.2′ W, respectively) while entering port and remains in effect while the vessel is moored within in the San Francisco Bay and Delta ports. When activated, this security zone will encompass a portion of the waterway described as a 100 yard radius around a cruise ship or tank vessel in the San Francisco Bay and Delta ports. This security zone is automatically deactivated when the cruise ship or tank vessel passes a line drawn between San Francisco Main Ship Channel buoys 7 and 8 (LLNR 4190 & 4195, positions 37°46.9′ N, 122°35.4′ W & 37°46.5′ N, 122°35.2′ W, respectively) on its departure from port. Vessels and people may be allowed to enter an established security zone on a case-by-case basis with authorization from the Captain of the Port.

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. This authority, under section 7 of the PWSA (33 U.S.C. 1226), supplements the Coast Guard's authority to issue security zones under The Magnuson Act regulations promulgated by the President under 50 U.S.C. 191, including Subparts 6.01 and 6.04 of Part 6 of Title 33 of the Code of Federal Regulations.

Vessels or persons violating this section will be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant to 33 U.S.C. 1232, any violation of the security zone described herein, is punishable by civil penalties (not to exceed $27,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000), and in rem liability against the offending vessel. Any person who violates this section, using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation, also faces imprisonment up to 12 years. Vessels or persons violating this section are also subject to the penalties set forth in 50 U.S.C. 192: seizure and forfeiture of the vessel to the United States, a maximum criminal fine of $10,000, and imprisonment up to 10 years.

The Captain of the Port will enforce these zones and may enlist the aid and cooperation of any Federal, State, county, municipal, and private agency to assist in the enforcement of the regulation. This regulation is proposed under the authority of 33 U.S.C. 1226 in addition to the authority contained in 50 U.S.C. 191 and 33 U.S.C. 1231.

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, l979). The size of the zones are the minimum necessary to provide adequate protection for cruise ships and tank vessels, their crews, other vessels and crews operating in the vicinity of cruise ships and tank vessels, adjoining areas and the public. These zones will encompass a small portion of the waterway for a limited duration. Also, vessels and people may be allowed to enter the zones on a case-by-case basis with authorization from the Captain of the Port. Any hardships experienced by persons or vessels are considered minimal compared to the national interest in protecting cruise ships and tank vessels, their crews and the public.

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. The security zones will not have a significant economic impact on a substantial number of small entities for several reasons: Small vessel traffic can pass safely around the area and vessels engaged in recreational activities, sightseeing and commercial fishing have ample space outside of the security zones to engage in these activities. When a cruise ship or tank vessel is at anchor, vessel traffic will have ample room to maneuver around the security zones. Small entities and the maritime public will be advised of these security zones via public notice to mariners.

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

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small 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 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 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 because we are establishing a security zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

On May 1, 2001, we published in the Federal Register [66 FR 21717] a notice of proposed rulemaking (NPRM) titled “Wearing of Personal Flotation Devices (PFDs) by Certain Children Aboard Recreational Vessels”. We received 46 letters commenting on the proposed rule. No public hearing was requested and none was held.

The NPRM followed two published notices of request for comments, both titled “Recreational Boating Safety-Federal Requirements for Wearing Personal Flotation Devices,” under the docket number CGD 97-059. The first appeared in the Federal Register on September 25, 1997 [62 FR 50280]; the second, which extended the comment period, on March 20, 1998 [63 FR 13586]. The comments received in response to these notices we discussed in the NPRM.

After summarizing the comments received in response to the NPRM, we consulted the National Boating Safety Advisory Council (NBSAC) at its meeting in October 2001 regarding the results. NBSAC recommended that we proceed to publish a Final Rule, as proposed in the NPRM.

We published a Final Rule in the Federal Register on February 27, 2002 [67 FR 8881], addressing requirements for children under age 13 to wear PFDs while the children are on deck and their vessels are under way. First, for States without their own statutes or rules on age, we established a Federal requirement complete in itself. Second, for States with unqualified statutes or rules on age (for most States with laws on age), we adopted those statutes or rules whole. Third, however, for States with their own statutes or rules on age qualified by, say, lengths of vessels, we purported to adopt those statutes or rules though not so qualified. Even this could have worked except for one problem: Our boarding-officers and those States' boarding-officers would have been enforcing different laws on the same waters.

A State Boating Law Administrator alerted us to this potential misfit between our own rule and States' qualified statutes or rules. At the same time, as we prepared guidance for our own boarding officers on the fine points of enforcement, we observed the same misfit. We decided that we needed to withdraw the Final Rule as it stood and rectify it. We have already published a Notice of Withdrawal [67 FR 14645 (March 27, 2002)]. By this Interim Rule we rectify the Rule as it stood.

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [USCG-2000-8589], indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by mail, by hand-delivery, by fax, or electronically to the Docket Management Facility at the address under ADDRESSES ; but please submit them by only one means. If you submit them by mail or hand-delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and want to know they reached the Facility, 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 Interim Rule in view of them.

We do not plan to hold a public meeting. You may ask for one by submitting a request to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

The number of deaths by drowning of children under 13 has decreased from 26 in 1995 to 11 in 1998. This trend is favorable on its face, and suggests the possibility that the appropriate Federal policy may be one of watchful waiting. Yet a review of statistics on recreational-boating accidents during 1998 showed that the rate of children drowning in States that require children to wear lifejackets (1.22 such drownings for every 1000 accidents) is lower than that of States that do not (1.31 such drownings for every 1000 accidents).

By late 1995, 26 States had enacted statutes or instated rules requiring children to wear lifejackets while aboard recreational vessels. The requirements, however, were not consistent nationwide, affecting children of different ages, while aboard vessels of different sizes, and engaged in different activities. By late 1999, 36 States had enacted statutes or instated rules requiring children to wear lifejackets while aboard recreational vessels. The requirements, however, still were not consistent nationwide. They varied by the age for wearing: from under age 18, when the vessel operator is under 18, to under age 6. They varied in other particulars, too: on the sizes of vessels (more than 26 feet in length; or less than 65 feet, 26 feet, 19 feet, 18 feet, or 16 feet in length); whether the vessels were under way, in motion, or not specified; and whether the children were on open decks, below decks, or in enclosed cabins.

In support of ongoing State efforts to improve boating safety, we are instating a requirement that children under 13 wear lifejackets approved by the Coast Guard while aboard recreational vessels under way, except when the children are below decks or in enclosed cabins. We are nevertheless adopting any State's statute or rule requiring children aboard recreational vessels to wear lifejackets within those States to avoid differences in enforcement between State and Federal boarding-officers. We encourage States to establish their own requirements for children and also encourage greater uniformity of State statutes and rules nationwide.

By the close of the comment period on August 30, 2001, we had received 46 comments, from—

Most of the comments that supported the Rule, as proposed in the NPRM, stated that it would be a positive step toward reducing drownings and toward a uniform requirement across the States. Two comments indicated that requiring children to wear PFDs would make boating safer and more pleasant for parents because parents themselves often wear PFDs, again to influence children. Parents also know that mishaps happen quickly and that they cannot always watch children on a boat so use of PFDs increases their sense of safety. In separate comments, two agencies in North Carolina stated that that State's data on drownings indicate that most children who drowned there were not wearing PFDs at the time of the incidents.

Eight comments either suggested helpful changes or stated that they could support the Rule, or at least not object to it if certain changes were made.

Two comments requested that the Rule allow the use of automatic, inflatable PFDs or safety harnesses on all vessels or at least on every vessel more than 21 feet in length.

But the proposed rule never contemplated prohibiting, and this Interim Rule does not prohibit, the use of inflatable PFDs for children. The Coast Guard has already approved automatic, hybrid, inflatable PFDs for children, which means these PFDs meet the requirements of this Rule. Once the Coast Guard has approved automatic, fully inflatable PFDs for children to wear, such devices will also meet these requirements. Nor does this Rule prohibit the use of safety harnesses; it just does not allow their use instead of wearing PFDs. The Coast Guard has decided not to revise this Rule to take account of these two comments, because the Rule anticipates them.

One comment suggested limiting the Rule to children on boats less than 18 feet that are under way or making way, while another suggested limiting it to children on the decks of vessels more than 65 feet.

The Coast Guard has no data indicating any specific length above which children become safe even without wearing lifejackets. Even so, we want to avoid disparate applicability of Federal and State requirements for wearing PFDs within any specific State. Therefore, this rule adds a new § 175.25 to adopt any State statute or rule requiring certain children to wear lifejackets, including such limits on applicability as the lengths of vessels; whether the vessels are under way, in motion, or not specified; and whether the children are on open decks, below decks, or in enclosed cabins.

Several comments asked the Coast Guard to lower the age limit because many 12-year-olds are better swimmers than many adults. One comment suggested lowering it to 6 years old when a vessel is not under way. Another comment recommended exempting those children who have passed a swimming course or a swimming-proficiency test.

In a study of Recreational Boating Safety from 1993, NTSB recommended that the Coast Guard work with the National Association of State Boating Law Administrators (NASBLA) and the American Academy of Pediatrics to develop “a uniform component of standards that establishes an age at or below which all children should be required by all States to wear personal flotation devices while in recreational boats.” NTSB proposed this strategy instead of one that would set specific Federal age-based requirements for wearing PFDs. The Coast Guard, these two organizations, and others endorsed mandatory use of lifejackets for children 12 and under. The other organizations were the National Safety Council, NBSAC, the U.S. Coast Guard Auxiliary, the National Water Safety Congress, the National Recreational Boating Safety Coalition, the National Safe Boating Council, the National Marine Manufacturers Association, the PFD Manufacturers Association, the American Medical Association, the American Camping Association, and the National Safe Kids Campaign. At least 14 States selected the same age-based requirements for children to wear lifejackets, either under 13 years or 12 years and under, which squares with the recent recommendations of NBSAC and NTSB.

Therefore, we have retained in this Interim Rule the Federal age-based requirement of under 13, as proposed in the NPRM. (Under 33 CFR 175.5, the States may set their own wearing requirements different from the Federal ones. Still, under it, the Coast Guard need not defer to States that have set no such requirements by statute or rule; and it does not so defer here.)

Another comment suggested that the current wording of “appropriate PFDs” is too vague and requested that the “appropriate” be replaced with “a Type I, II, III, or V PFD.”

In the preamble to the NPRM [66 FR 21717], under paragraph 2 of the discussion of section 175.15 of the proposed rule, we stated that the proposed requirement would be to wear lifejackets approved by the Coast Guard. We agree with the comment and have revised this section to read “* * * appropriate PFDs approved by the Coast Guard.”

In its comment, the NTSB requested that the Coast Guard reconsider allowing States to set their own age-based requirements, even if lower than 12 years old. The NTSB urged the Coast Guard to establish a uniform standard for the mandatory use of PFDs for all children under age 13. According to NTSB, a national standard would help parents and law-enforcement agencies by minimizing confusion about which children must wear PFDs in which States. Another comment also asked that the Rule preempt the different age-based requirements from State to State.

Again, the Coast Guard has decided not to amend 33 CFR 175.5 so as to preempt the States from setting their own wearing requirements different from the Federal ones and, in fact, is adopting them where they exist. States' requirements, even where they vary, represent a real improvement.

Seven of the sixteen opposing comments stated that mandatory use of lifejackets is a State issue.

One comment expressed concern that Federal action would interfere with individual State efforts to mandate use of PFDs. It and another suggested that each State be allowed to continue drafting laws tailored to its own distinct waters and boating community. Another comment stated that the low number of children's drownings that appear in national statistics indicate that States are handling the issue properly. Two others disapproved of a Federal requirement because it would create confusion at a time when most States already require that children wear lifejackets. One of those, from the Virginia Department of Game and Inland Fisheries, stated that, because under the proposed rule States would continue to enforce existing age limits, it is “unclear how [that rule] would encourage greater uniformity of boating laws.” It added that Virginia's own data on boating accidents did not support imposing the requirement on “potentially hundreds of thousands of ‘recreational vessel users’.”

This Interim Rule acknowledges the law-enforcement efforts of the many States that already require children under specific ages to wear lifejackets while on board recreational vessels and, by adopting any statutes or rules requiring children to wear lifejackets, including any limits on applicability, within those States, does not interfere with those efforts. It adds authority for boarding officers of the Coast Guard, enforcing Federal law (or State law assimilated to it), to support those efforts. Further, we encourage other States to undertake their own such efforts, without imposing a Federal mandate in this Interim Rule.

Other opposing comments stated that national statistics do not warrant a Federal rule, and one suggested that the Coast Guard focus on education rather than regulation. Another questioned whether the Coast Guard's own statistics supported the Rule. It stated that some entries in the Boating Accident Reporting Database (BARD) first report deaths as due to drownings, which coroners later conclude were actually due to carbon-monoxide poison. Another responded that the data indicate that the Rule would not have saved most children who drowned; and it concluded that age 12 “is certainly too old.”

The Coast Guard has fostered and will continue to foster safety in recreational boating through education and public awareness. However, we disagree with the comments implying that our boarding officers should not be authorized to support States' law-enforcement officers by enforcing requirements for children to wear lifejackets within the States with such requirements. Our applying “under 13” agrees with recommendations from NBSAC and the NTSB. Whether or not our statistics compel Federal measures, they do, as we observe, support them. Therefore, we have retained the age-based requirement as proposed.

Other comments objecting to the Rule noted the Coast Guard's limited funds for enforcement. One stated that because most States already have a mandated age limit, generally 12, the Coast Guard would be wasting valuable man-hours handing out citations like parking tickets. It also voiced concern that the citations could lead to higher insurance costs for individual boaters. Another stated that a Federal rule would be ineffective because there would be no added funding for enforcement.

In the preamble to the NPRM, under paragraph 1 of the Regulatory Evaluation discussing the costs of the proposed rule, we stated that “* * * the Coast Guard already trains its boarding officers to check safety equipment.” Enforcement of the Rule will entail few if any stops that these officers would not have been making anyway during enforcement of, say, rules on carriage of that equipment. The Coast Guard has decided that the Rule, as proposed in the NPRM, anticipates these comments and it adopts that Rule, unchanged in these respects, as this Interim Rule.

Three comments voiced concern that the proposed rule did not consider how uncomfortable lifejackets can be for children, especially those boating in hot, humid climates. One of the three stated that children wearing lifejackets in those climates could suffer heat stroke and argued that the Rule would discriminate against children who are under 13 but who are good, even excellent, swimmers. Another added that the Coast Guard could reduce the number of drownings more effectively if it focused educational campaigns on adults who use canoes and johnboats to go fishing or bird-watching. These people view boating only as a means to doing the primary activity, so they may not be as aware of boating safety as boaters with children on board.

Some models and types of lifejackets are more comfortable than others, designs are ever-evolving, and there are already some designs available in the marketplace that reduce the threat of injury by heat stroke. Voluntary swimming is not the same as involuntary swimming after falling overboard or after a collision. Again, the Coast Guard has fostered and will continue to foster recreational boating safety through education and public awareness, even where boating is involved but where it is not the primary activity. The Coast Guard adopts the proposed rule, unchanged in these respects, as this Interim Rule.

Other comments stated that the decision whether to place a child in a lifejacket should belong to the parents or guardians and that the government cannot protect people from their own poor judgment.

This Interim Rule does not preclude parents and guardians from the exercise of good judgment, but it does prohibit the operator of the boat from getting under way until each child on board and on deck is wearing a lifejacket. It is likely to have the same effect on the judgment of parents and guardians as laws that require the use of seatbelts and special seats for children in cars. Even if “government cannot protect people from their own poor judgment,” it can protect some people from some others' poor judgment. The Coast Guard adopts the proposed rule, unchanged in these respects, as this Interim Rule.

1. Section 175.3 adds a definition of the term “State” to clarify the applicability of non-Federal requirements and the Federal adoption of those requirements.

2. Section 175.15 accomplishes a minor editorial change and adds a new paragraph establishing a requirement for children under 13 to wear lifejackets approved by the Coast Guard while aboard recreational vessels.

3. Subpart B adds a new section 175.25 adopting States' statutes or rules requiring children to wear lifejackets while aboard recreational vessels within those States.

This Interim Rule (once effective) applies the Federal standard in full only where a State has not enacted or instated such a requirement. It would apply in full now, therefore, only in American Samoa, Colorado, Guam, Hawaii, Idaho, Indiana, Iowa, Minnesota, the Northern Mariana Islands, Nevada, New Mexico, North Carolina, North Dakota, South Dakota, the Virgin Islands, Virginia, Wisconsin, and Wyoming [see the 1999 edition of the National Association of State Boating Law Administrators, Reference Guide to State Boating Laws ]; and, for recreational vessels owned in the United States, it applies (once effective) on the high seas.

This Interim 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 (OMB) 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)].

An interim Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT follows:

This Interim Rule imposes no costs on the boating public. Existing rules require the carriage of an appropriate lifejacket for each passenger. Costs to the Government are non-existent as well because the Coast Guard already directs its boarding officers to board recreational vessels and already trains them to check safety equipment, once there.

This Interim Rule is appropriate because, even though statistics on boating accidents show that the actual numbers of children under 13 that drowned in recent years were relatively small (14 in 1998, 14 in 1999, and 7 in 2000), these few drownings were avoidable. It should reduce the number of children under 13 that drown every year because they are not wearing lifejackets.

This Rule affects only those States that have not established requirements, by statute or rule, for children to wear lifejackets. In those States, there were 7 drownings and 1 moderate injury and 3 critical injuries due to near-drownings of children under 13 from 1996 through 2000. These drownings and near-drownings might have been prevented if the children had worn lifejackets. (These numbers may overstate the number of lives that could have been saved if the children had worn lifejackets: Narratives in accident reports may fail to disclose circumstances in which the victims were pinned, for example, and would have drowned anyway. Equally, though, they may understate the number of lives that could have been saved: Many accidents go unreported entirely.)

A memorandum from the Office of the Secretary of Transportation, dated January 29, 2002, sets the benefit of averting an accidental fatality in regulatory analyses at $3.0 million. Another memorandum from that Office, dated January 8, 1993, yet never superseded, advises agencies within the Department to classify injuries as minor, moderate, serious, severe, critical, or fatal. The latter memorandum also assigns to each degree of injury averted a certain percentage of the value of society's willingness to pay to avert a fatality. To calculate the value of society's willingness to pay to avert each degree of injury, we multiplied $3.0 million by the percentage assigned to each degree of injury averted.

If we consider a 100% rate of compliance with a requirement for children to wear lifejackets, we can calculate the retrospective benefits of this Rule as below:

The total value of injuries and fatalities averted for 1996-2000 would have been $27,909,000. Therefore, the average annual value of injuries and fatalities averted would have been $5,581,800, calculated as ($27,909,000)/(5 years).

Under the Regulatory Flexibility Act [5 U.S.C. 601-612], we have considered whether this Interim Rule has 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.

This Federal requirement for children under 13 to wear lifejackets applies (once effective) to operators of recreational vessels on waters subject to the jurisdiction of the United States (as defined in 33 CFR 2.05-30). Further, it applies likewise to operators of recreational vessels owned in the United States, while operating on the high seas (as defined in 33 CFR 2.05-1). Last, since this Rule adopts any State statute or rule requiring certain children to wear lifejackets, including any limits on applicability, within those States, this requirement applies likewise to operators of recreational vessels either in States with such requirements or on navigable waters of the United States outside States altogether.

Because the Regulatory Flexibility Act does not apply to individuals, the Coast Guard certifies under 5 U.S.C. 605(b) that this Rule does not have a significant economic impact on a substantial number of small entities. If you think that this Rule affects small entities, 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 Docket Management Facility at the address under ADDRESSES. In your comment, explain why you think this Rule affects small entities, how your business, organization, or governmental jurisdiction qualifies, 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 have offered to assist small entities in understanding this Interim Rule so that they can better evaluate its effects on them and participate in the rulemaking. If the Rule affects your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Carlton Perry, Project Manager, Office of Boating Safety, by telephone at 202-267-0979, or by e-mail at cperry@comdt.uscg.mil.

Small businesses may also send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal rules 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 Interim 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 Interim Rule under Executive Order 13132 and have determined that, because the Federal requirement for children under 13 to wear lifejackets will not supersede or preempt any State's comparable requirement, this Rule does not have implications for federalism under that Order. The Federal requirements apply in full only where there are no State requirements; where there are State requirements, the Federal requirements apply only so as to assimilate the State requirements.

The Unfunded Mandates Reform Act of 1995 [2 U.S.C. 1531-1538] governs the issuance of Federal rules that impose unfunded mandates. An unfunded mandate is a requirement that a State, local, or tribal government, or the private sector, incur direct costs without the Federal Government's having first provided the funds to pay those costs. This Interim Rule does not impose an unfunded mandate.

This Interim Rule does 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 Interim 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 Interim Rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This Rule is not an economically significant rule. Nor does it create an environmental risk to health or risk to safety that may disproportionately affect children; on the contrary, it advances the welfare of children even though it defers to States' limits on applicability of their requirements for children to wear lifejackets.

This Interim 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 Interim 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 within OMB 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 Interim Rule and concluded that, under figure 2-1, paragraph (34)(a), of Commandant Instruction M16475.lD, this Rule is categorically excluded from further environmental documentation. The Rule requires that certain children aboard recreational vessels wear lifejackets. A Determination of Categorical Exclusion is available in the docket where indicated under ADDRESSES .

The proposed rule was published in the February 6, 2002, Federal Register (67 FR 5542) for a 60-day public comment period. NARA announced the availability of the proposed rule widely, including to all current grantees and State historical records coordinators. A copy of the proposed rule was also posted on the NARA web site for review. No timely comments were received. We are issuing this final rule without change.

This final rule is a significant regulatory action for the purposes of Executive Order 12866 and has been reviewed by the Office of Management and Budget. As required by the Regulatory Flexibility Act, I certify that this rule will not have a significant impact on a substantial number of small entities. In fiscal year 2000 the NHPRC made grants to only 72 organizations and entities as defined in the Act, from the 84 applications submitted.

On December 7, 2000, EPA published a limited approval and limited disapproval in the Federal Register (65 FR 76567). The effective date of our limited disapproval was January 8, 2001. EPA's disapproval action started an 18-month clock for the imposition of one sanction (followed by a second sanction 6 months later) and a 24-month clock for promulgation of a Federal Implementation Plan (FIP). On May 20, 2002, the State subsequently submitted a revised version of Rules 10, 26.1, 26.2, 26.3, 26.4, 26.6, and the new Rule 26.11. In the Proposed Rules section of today's Federal Register , EPA is also proposing full approval of the May 20, 2002 submittal.

EPA is taking this interim final rulemaking action because it has determined that the District has corrected the deficiencies noted in its limited disapproval. However, EPA is also providing the public with an opportunity to comment on this interim final action. If, based on the comments on this action and the comments on EPA's proposed approval, EPA determines that the State's submittal is not approvable and this interim final action was inappropriate, EPA will propose to disapprove the State's submittal and will take interim final action finding that the State has not corrected the original disapproval deficiencies. Upon a final disapproval of the State's submittal, EPA would finalize the interim final finding, finding that the State has not corrected the deficiencies.

This action neither stops nor tolls the sanctions clock that started for these deficiencies on January 8, 2001, the effective date of limited approval and limited disapproval. However, this action will defer the imposition of the offset and highway sanctions. See 40 CFR 52.31(d)(2)(ii). If EPA takes final action approving the State's submittal after accepting comments on the proposed rule, such action will permanently stop the sanctions clock and will permanently lift any imposed, stayed or deferred sanctions. However, if at any time EPA determines that the State, in fact, did not correct the disapproval deficiencies, as appropriate, EPA either will withdraw this interim final determination or take action finding that the State has not corrected the deficiencies. Such action will retrigger the sanctions consequences as described in 40 CFR 52.31 and would result in the immediate imposition of sanctions if the sanctions clock had expired.

Today we are taking interim final action finding that the State has corrected the disapproval deficiencies that started the sanctions clock. Based on this action, imposition of the offset and highway sanctions will be deferred until EPA takes final action approving the State's submittal or EPA takes action proposing or finally disapproving in whole or part the State submittal. If EPA takes final action approving the State submittal, any sanctions clocks will be permanently stopped and any imposed, stayed or deferred sanctions will be permanently lifted.

We have preliminarily determined that the State has an approvable plan and implementing rules and relief from pending sanctions should be provided as quickly as possible. Therefore, we are invoking the good cause exception to the 30-day notice requirement of the Administrative Procedure Act because the purpose of this notice is to relieve a restriction. See 5 U.S.C. 553(d)(1).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This action merely defers federal sanctions. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule only defers sanctions, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely defers sanctions, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), because it is not economically significant. This rule does not contain technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. However, section 808 provides that any rule for which the issuing agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule) that notice and public procedure thereon are impractible, unnecessary, or contrary to the public interest, shall take effect at such time as the agency promulgating the rule determines. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of June 24, 2002. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a major rule as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 23, 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 rules. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2)).

In Title 40 of the Code of Federal Regulations, Parts 100 to 135, revised as of July 1, 2001, on pages 164 and 166, § 122.26 is corrected by revising paragraphs (c)(1) introductory text and (c)(1)(i)(E)( 4 ), on page 167, by removing and reserving paragraph (c)(2), and on page 171, in paragraph (d)(2)(iii) introductory text, by revising the reference to “(d)(a)(iii)(A)( 3 )” to read “(d)(2)(iii)(A)( 3 )”, as follows:

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001 et seq. ; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Associate Director finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives a 6-month, 90-day, and 30-day notification addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.

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

The Associate Director has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless they take remedial action.

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

This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987 Comp.; p. 252.

This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991 Comp.; p. 309.

This is a summary of a Commission's Order and Second Order on Reconsideration in CC Docket Nos. 00-256 and 96-45 released on June 13, 2002. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 Twelfth Street, SW., Washington, DC, 20554.

1. In this Order we waive, on our own motion, the requirement that carriers file annual certifications on June 30, 2002, in order to receive Interstate Common Line Support (ICLS). We find that this requirement is unnecessary because carriers have already filed such certifications on April 18, 2002, for the ICLS funding year beginning July 1, 2002. We also amend our rules to permit adjustments to Long Term Support (LTS) to reflect projected revenues of carriers that participate in the National Exchange Carrier Association (NECA) common line pool. This amendment conforms the rules governing calculation of LTS to the Commission's intent in the MAG Order , 66 FR 59719, November 30, 2001, ensures appropriate LTS funding levels, and will enable NECA to file common line tariffs that comply with part 69 of the Commission's rules.

2. We waive, on our own motion, the requirement that carriers file an annual certification on June 30, 2002. The Commission may exercise its discretion to waive a rule where special circumstances make strict compliance with the rule inconsistent with the public interest. We find that special circumstances exist here to warrant a waiver. Generally, the requirement that carriers file a certification on June 30 of each year serves the public interest by ensuring that carriers use ICLS only for the “provision, maintenance, and upgrading of facilities and services for which the support is intended,” in accordance with section 254(e). In the initial ICLS funding year, however, the June 30 filing requirement merely duplicates the earlier filing required on April 18, 2002, which covers the same certification period. The duplicative filing requirement is therefore unnecessary. We therefore conclude that special circumstances warrant a waiver of the June 30, 2002 filing requirement.

3. On our own motion, we amend our rules to permit LTS to be adjusted so that it does not exceed the difference between each carrier's projected common line revenue requirement and its projected revenues from SLCs, other common line end-user charges, and transitional CCL charges. This amendment conforms the rules governing the calculation of LTS to our intent in the MAG Order , ensures appropriate LTS funding levels, and will enable NECA to file common line tariffs that comply with our rules.

4. Amendment of our LTS rule is necessary to fulfill our goals in reforming the interstate universal service support mechanisms and access rate structure in the MAG Order . The current LTS rule does not take into account the increased SLC revenues resulting from the reforms adopted in the MAG Order . This makes no difference for the vast majority of carriers, whose common line revenue requirements will exceed their revenues from SLCs, other end-user common line charges, transitional CCL charges, and LTS. For some carriers, however, the reforms adopted in the MAG Order reduced the need for high-cost support for interstate loop costs below the amount of LTS they currently receive. Failure to adjust LTS for these carriers would lead to earnings in excess of their common line revenue requirements. We retained LTS in the MAG Order solely for the purpose of stabilizing membership in the common line pool during the transition to a more efficient rate structure. We did not intend to negate our cost recovery rules for rate-of-return carriers and permit the carriers to recover more than their common line revenue requirements, nor did we intend that any carrier would have a “negative” ICLS amount. Accordingly, we conclude that amendment of the LTS rule is necessary.

5. We also find that this amendment is necessary to ensure the appropriate LTS funding levels. This amendment will prevent waste of universal service support by ensuring that LTS is not distributed to any rate-of-return carrier except to the extent that it is required to maintain the affordability of the carrier's interstate common line services. We conclude that the potential alternatives to adjusting LTS would not serve the public interest. For example, we decline to require NECA to reduce its tariffed SLC or transitional CCL rates to offset the excess LTS payments. Reducing SLCs would use universal service funds to subsidize rates below the caps the Commission has set. Reducing the transitional CCL rate would undermine the decision to use a transitional CCL charge to gradually implement the reforms adopted in the MAG Order .

6. Finally, this amendment will enable NECA to file common line tariffs that comply with our part 69 rules. Rate-of-return carriers, including members of the common line pool, are limited to recovery of their costs plus a prescribed rate of return. The common line pool would over earn if NECA filed tariffs for SLCs and CCL charges that reflect the aggregate cost and revenue data included in the April 18 projected ICLS filing, without adjustment of LTS. If NECA files a tariff that on its face permits excessive recovery, any ratepayer—end users or interexchange carriers subject to CCL charges-could request that the Commission suspend the tariff to prevent over-recovery.

7. In compliance with the Regulatory Flexibility Act (RFA), this Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) supplements the Final Regulatory Flexibility Analysis (FRFA) included in the MAG Order , to the extent that changes to that Order adopted here on reconsideration require changes in the conclusions reached in the FRFA. We note that we do not find that this Order on Reconsideration creates a significant economic impact on small entities. We could therefore meet our obligations under the RFA by certifying that there is no significant economic impact on small entities, rather than including this SFRFA. We nonetheless include this Supplemental FRFA to demonstrate that we have considered the impact of our action on small entities in adopting this Order on Reconsideration.

8. This Second Order on Reconsideration is necessary to conform the rules governing the calculation of LTS to our intent in the MAG Order , ensure appropriate LTS funding levels, and enable NECA to file common line tariffs that comply with our rules. Section 254 of the Communications Act of 1934, as amended by the 1996 Act, requires the Commission to promulgate rules to preserve and advance universal service support. Pursuant to that mandate, the Commission, in the MAG Order , adopted reforms to the interstate access rate structure and universal service support mechanisms for rate-of-return carriers. In making these reforms, the Commission created ICLS to provide explicit universal service support for the interstate common line, but left the existing interstate support mechanism, LTS, unchanged for the July 1, 2002-June 30, 2003, funding year. We now conclude that it is necessary to amend LTS to permit reductions of LTS to certain carriers in certain circumstances. As described, this is necessary in order to permit NECA to file a tariff on behalf pooling carriers that does not result in revenues in excess of their authorized rate-of-return. This is consistent with our intent in adopting the reforms in the MAG Order .

9. No petitions were submitted in response to the previous FRFA.

10. In the previous FRFA at paragraphs 289-300 of the MAG Order, we described and estimated the number of small entities that would be affected by the new universal service rules. These included local exchange carriers, interexchange carriers, competitive service providers, and providers of wireless telephony, rural radiotelephone service, fixed microwave services, and 39 GHz service. The rule amendment adopted herein may apply to the same entities affected by the rules adopted in that order. We therefore incorporate by reference paragraphs 289-300 of the MAG Order.

11. The rule amendment adopted in this Second Order on Reconsideration contains no new reporting, recordkeeping, or other compliance requirement.

12. As noted, the amendment to our rules adopted in this Order on Reconsideration does not have a significant impact on small entities. We take action to reaffirm the ability of rate-of-return carriers to recover their costs plus the Commission-approved rate of return on investment. Although the amendment does limit the carriers' ability to recover its revenue from a particular source, LTS, it has no net impact on their overall ability to recover their costs and rate return.

13. We did consider other alternatives that would have limited carriers revenue recovery from other sources, but concluded that reducing the tariffed SLC rates or transitional CCL charge rates imposed by these carriers would not be in the public interest. Reducing SLCs would use universal service funds to subsidize rates below the caps the Commission has set. Reducing the transitional CCL rate would undermine the decision to use a transitional CCL charge to gradually implement the reforms adopted in the MAG Order.

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

15. The action contained herein has been analyzed with respect to the Paperwork Reduction Act of 1995 (PRA) and found to impose no new or modified reporting or recordkeeping requirements or burdens to the public.

16. Pursuant to the authority contained in sections 1-4, 10, 201-02, and 254 of the Communications Act of 1934 as amended, 47 U.S.C. 1-4, 10, 201-02, and 254, and §§ 1.3 and 1.103 of the Commission's rules, this Order and Second Order on Reconsideration is adopted.

17. Section 54.904(d) is waived with respect to the filing required pursuant to that rule on June 30, 2002.

18. Section 54.303(b) of the Commission's rules is amended, effective June 24, 2002. Good cause exists to make this effective June 24, 2002. The actions we take in this Order on Reconsideration are intended to facilitate compliance other Commission rules. It is necessary that the amendment take effect as soon as possible in order to best fulfill this purpose.

19. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Second Order on Reconsideration, including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-322, adopted June 5, 2002, and released June 14, 2002. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A245 12th Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractors, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This is a summary of the Commission's Report and Order, adopted May 29, 2002, and released June 7, 2002. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC. 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This is a synopsis of the Commission's Report and Order, MM Docket No. 02-42, adopted May 29, 2002, and released June 7, 2002. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractors, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This is a summary of the Third Order on Reconsideration of the Report and Order and Memorandum Opinion and Order (Third Report and Order) released on May 8, 2002. The full text of this document is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW, Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

1. The Commission has before it the Ad Hoc Coalition's (“Coalition”) second Petition for Reconsideration. The Coalition seeks reconsideration of the 218-219 MHz Second Reconsideration Order, 66 FR 9212 (February 7, 2001), that denied the Coalition's first Petition for Reconsideration. The Commission dismisses the second Petition for Reconsideration for the reasons set forth.

2. On July 28 and 29, 1994, the Commission conducted an auction in the 218-219 MHz Service (“Auction No. 2”). The applicable rules at the time included provisions to encourage participation by small businesses and minority- and women-owned entities. Small businesses were entitled to pay eighty-percent of their winning bids in installments while businesses owned by minorities and/or women were entitled to a twenty-five percent bidding credit that could be applied to one of the two licenses available in each market. Bidders that were both, small businesses and minority- and/or women-owned entities could use installment financing as well as bidding credits.

3. At the time our rules were adopted for Auction No. 2, the standard of review applied to federal programs designed to enhance opportunities for racial minorities and women was an “intermediate scrutiny standard.” In June 1995, almost a year after the conclusion of Auction No. 2, the U.S. Supreme Court decided Adarand Constructors v. Pena, holding that racial classifications are subject to “strict scrutiny” and will be found unconstitutional unless “narrowly tailored” and in furtherance of “compelling governmental interests.”

4. On December 5, 1995, the Coalition filed a Petition for Relief that alleged that the bidding credits in Auction No. 2 were unconstitutional and sought a twenty-five percent reduction of its members' winning bids to match the bidding credits provided to minority- and women-owned entities. At the same time, members of the Coalition sought judicial review as petitioners and intervenors in appeal of the Commission's IVDS Omnibus Order, 11 FCC Rcd. 1282 (1996), in which the Commission denied a challenge to race- and gender-based bidding credits brought by Graceba Total Communications. The Commission held the Petition for Relief in abeyance pending the outcome of this case.

5. On June 26, 1996, the U.S. Supreme Court decided United States v. Virginia, which held that to successfully defend a gender-based program, the government must demonstrate an “exceedingly persuasive justification” for the program.

6. On November 21, 1996, the Commission released the Competitive Bidding Tenth Report and Order, 61 FR 60198 (November 27, 1996), which modified certain competitive bidding provisions concerning the treatment of small businesses, businesses owned by members of minority groups and women, and rural telephone companies for the then-planned second IVDS auction, in order to address the legal requirements of the Supreme Court's decisions in Adarand and VMI. Additionally, in order to avoid undue delay of future auctions in other services, the Commission eliminated the race- and gender-based provisions for those auctions and instead employed a similar provision for small businesses.

7. On June 20, 1997, the D.C. Circuit dismissed the Coalition's challenge to the IVDS Omnibus Order, finding that the appeal was not ripe due to the Coalition's Petition pending before the Commission. Subsequently, on January 9, 1998, the Coalition filed with the Commission a Supplement to its Petition for Relief that claimed that: (i) failure to provide the twenty-five percent reduction in the license payments amounts to an unconstitutional taking of property without due process of law; and (ii) finality-related concerns do not bar the retroactive application of Adarand. The Coalition also expanded its requested remedy to include all Auction No. 2 winning bidders who did not receive a 25 percent bidding credit.

8. On May 28, 1998, the Wireless Telecommunications Bureau (“Bureau”) issued the Community Teleplay Order, 13 FCC Rcd. 12426 (1998), which denied the Coalition's requests based on its finding that members of the Coalition had sufficient opportunity to raise a challenge in a timely manner, but failed to do so. On June 29, 1998, the Coalition filed an Application for Review.

9. On September 10, 1999, the Commission released the 218-219 MHz Order, 64 FR 59656 (November 3, 1999), which, among other things, dismissed the Coalition's Application for Review as moot because the 218-219 MHz Order eliminated from the Commission's rules the bidding credit for minority- and women-owned businesses. Thus, all minority- and women-owned businesses lost the bidding credit they had previously received in Auction No. 2. At the same time, to fulfill the Commission's statutory mandate of encouraging participation by small businesses, rural telephone companies, and businesses owned by members of minority groups and women, the Commission granted a retroactive twenty-five percent bidding credit to the accounts of “every winning bidder in the 1994 auction of what is now the 218-219 MHz Service that met the small business qualifications for that auction.” The Commission noted that this approach minimized the disruption to entities that have previously received a bidding credit and the public, and that similar bidding credits had been provided to bidders in other services. The Commission also rejected the Coalition's takings argument.

10. On December 3, 1999, the Coalition filed its first Petition for Reconsideration (“First Petition for Reconsideration”) alleging that the remedial bidding credit adopted in the 218-219 MHz Order represented a “conversion” of an unconstitutional race- and gender-based preference to a small business preference and that the new credit did not resolve its constitutional claims and should be subject to strict scrutiny. The Coalition requested that the Commission extend the remedial bidding credit to all Auction No. 2 bidders regardless of size.

11. On December 13, 2000, the Commission denied the Coalition's First Petition for Reconsideration in the 218-219 MHz Second Reconsideration Order. The Commission rejected the argument that the remedial bidding credit was impermissibly motivated and found that the remedial bidding credit satisfied rational basis review because it was adopted to further Congress's objective to disseminate licenses among a wide variety of applicants. Finally, the Commission determined that there was no evidence to support the allegation, previously raised by Kingdon Hughes (another Petitioner), that the original bidding credits inflated the prices paid by auction participants. The Commission declined to expand the remedial bidding credit to all winning bidders in Auction No. 2.

12. On February 15, 2001, the Bureau exercised its delegated authority and issued a Refund Procedures PN, 16 FCC Rcd. 3453 (2001), explaining the procedures relating to the remedial bidding credit. The Commission is presently processing the refund requests of all eligible requestors.

13. On March 9, 2001, the Coalition filed its second Petition for Reconsideration (“Second Petition for Reconsideration”) seeking reconsideration of the Commission's 218-219 MHz Second Reconsideration Order. The Coalition, in its Second Petition for Reconsideration, argued that the remedial bidding credit was unconstitutional and that the price inflation argument (previously raised by Kingdon Hughes in his Petition for Reconsideration of the 218-219 MHz Order ) was not “wholly speculative.” The Coalition also raised, for the first time with sufficient particularity, the argument that the remedial bidding credit violated the notice and comment provisions of the Administrative Procedures Act (“APA”) because the remedial bidding credit was not included in the 218-219 MHz Notice of Proposed Rule Making, 66 FR 9212 (February 7, 2001).

14. The Commission dismisses as repetitious the Coalition's Second Petition for Reconsideration with respect to the constitutional and price inflation arguments because these arguments were previously the subject of reconsideration and fully considered in the 218-219 MHz Second Reconsideration Order. The Commission also dismisses the Coalition's untimely APA argument because the Coalition does not plead or otherwise establish new facts, changed circumstances, or public interest considerations that would merit review of this untimely request for reconsideration.

15. Repetitious Arguments. The Commission does not grant reconsideration for the purpose of allowing a petitioner to reiterate arguments already presented. This is particularly true, where a petitioner advances arguments that the Commission previously considered and rejected in a prior order on reconsideration. If this were not the case, the Commission “would be involved in a never ending process of review that would frustrate the Commission's ability to conduct its business in an orderly fashion.” However, the Commission will entertain a petition for reconsideration if it is based on new evidence or changed circumstances or if reconsideration is in the public interest. In this case, a comparison of the Coalition's Second Petition for Reconsideration with the Coalition's First Petition for Reconsideration and the Petition of Kingdon Hughes establishes that the Coalition's constitutional and price inflation arguments were previously raised and fully addressed in the 218-219 MHz Second Reconsideration Order.

16. In its First Petition for Reconsideration, the Coalition argued that the remedial bidding credit adopted in the 218-219 MHz Order represented a “conversion” of an unconstitutional race- and gender-based preference to a small business preference. The Coalition argued that this “conversion” failed to resolve its constitutional claims. Additionally, the Coalition contended that the remedial bidding credit was impermissibly motivated, violated Hunt v. Cromartie, (which states that “a law that is facially neutral with respect to race classification warrants strict scrutiny under the Equal Protection Clause only if it can be proved that the law was motivated by a racial purpose or object, or if it is unexplainable on grounds other than race”) and should be subject to strict scrutiny review. The Commission rejected these arguments in the 218-219 MHz Second Reconsideration Order. The Commission explained that the remedial bidding credit was adopted not to remedy the race- and gender-discrimination that allegedly occurred in 1994. Rather, the Commission explained that the extent of any “remedy” for the alleged race- and gender-discrimination was the elimination of the race and gender-based bidding credit. The remedial bidding credit was accorded to small businesses to fulfill the Commission's statutory mandate of encouraging participation by small businesses and to make the rules consistent with those in other services. Thus, the Commission resolved a multi-faceted and complex set of regulatory issues by leveling the bidding credit upward. Because the remedial bidding credit was not based on race- or gender-classifications, the Commission found that it is not subject to strict scrutiny review and satisfied rational basis review. In its Second Petition for Reconsideration, the Coalition reiterated its constitutional arguments concerning the remedial bidding credit. Because these arguments were fully addressed by the Commission in a prior order, these arguments are dismissed as repetitious.

17. The Coalition also raised in its Second Petition for Reconsideration, an argument previously raised by Kingdon Hughes in his Petition for Reconsideration of the 218-219 MHz Order, which asserted that the bidding credits inflated the prices paid by licensees. The Commission rejected this argument as wholly speculative in the 218-219 Second Reconsideration Order. Again, because this argument was previously raised by another petitioner, and fully addressed by the Commission in the 218-219 MHz Second Reconsideration Order, this argument is dismissed as repetitious.

18. APA Argument. The Coalition's APA argument is untimely. Although the Commission did not previously address this argument, it was not originally made with enough particularity in the Coalition's First Petition for Reconsideration to merit the Commission's attention. The Coalition's inclusion of this argument in its Second Petition for Reconsideration does not correct its earlier failure or obviate the fact that the argument is now untimely.

19. The Commission's rules require that petitioners state with particularity the grounds on which reconsideration of a Commission action is sought. The precedent is clear that the Commission “'need not sift pleadings and documents” to identify arguments that are not “stated with clarity” by a petitioner. It is the petitioner that has the burden of clarifying its petition before the agency.” The mere mention of a legal concept is insufficient to properly raise an argument for review. As the Court of Appeals for the D.C. Circuit has noted “even where an issue has been “raised” before the Commission, if it is done in an incomplete way * * * the Commission has not been afforded a fair opportunity [to pass on the issue].” In the First Petition for Reconsideration, the Coalition's passing reference to the APA in a section devoted to the constitutionality of the remedial bidding credit does not meet the standard. Although the Coalition characterized the adoption of the remedial bidding credit as “dubious” under the APA, it did not develop any argument or cite any authority. Indeed, the Coalition did not even specifically claim that the remedial bidding credit violated the APA. Thus, this passing reference in the First Petition for Reconsideration did not comport with the requirement that the basis for a petition for reconsideration be stated with particularity and, accordingly, the issue was not properly raised for our review.

20. As previously noted, “[t]he Communications Act, our rules, and the need for administrative orderliness require petitioners to raise issues in a timely manner.” Accordingly, unless the public interest would be served by reconsideration, § 1.429(i) of the Commission's rules limits subsequent reconsideration to modifications made to the original order on reconsideration. The 218-219 MHz Second Reconsideration Order did not modify the remedial bidding credit. Thus, a petition for reconsideration of the 218-219 MHz Second Reconsideration Order that challenges the remedial bidding credit is precluded under § 1.429(i). This result is particularly appropriate where, as here, the Coalition's Second Petition for Reconsideration did not establish that the public interest would be served by review of the untimely APA argument. Accordingly, the Coalition's APA argument is dismissed.

21. It is ordered that, pursuant to the authority of sections 4(i), 257, 303(b), 303(g), 303(h), 303(q), 303(r), 309(j) and 332(a) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 257, 303(b), 303(g), 303(h), 303(q), 303(r), 309(j) and 332(a), and § 1.429 of the Commission's rules the Second Petition for Reconsideration filed by the Ad Hoc Coalition is dismissed.

22. It is further ordered that the Third Report and Order is adopted and that a copy be sent to the Ad Hoc Coalition via certified mail, return-receipt requested.