This interim rule is necessary to improve both efficiency and customer service, and to support the Service's long-established goals for filing of petitions and applications via direct mail. Current regulations at § 204.5(n), § 245.1(g) and § 245.2(a)(2) state that an alien can only submit Form I-485 after the alien has had his or her underlying visa petition, Form I-140, approved, and when an immigrant visa is immediately available. Due to these requirements there has been a delay from the time the Form I-140 is filed with the Service until the alien worker, for whom a visa is otherwise immediately available, can properly file Form I-485 with the Service.

The most practical and efficient way to eliminate this dalay is to permit concurrent filing of Form I-485 together with Form I-140 in cases in which a visa is immediately available. Concurrent filing eliminates the dalay that takes place between approval of Form I-140 and the subsequent filing of Form I-485. This interim rule provides for such concurrent filing.

No, this interim rule does not change the current substantive requirements governing eligibility for and adjudication of the Form I-140 nor for the Form I-485.

Forms I-140 and I-485 may be filed concurrently only when an immigrant visa number is immediately available. This interim rule does not change the existing requirement that a visa number must be immediately available before an alien can apply for permanent resident status. This interim rule simply applies to aliens who are classifiable under sections 203(b)(1), (2), and (3), of the Immigration and Nationality Act, allowing them to file the Forms I-140 and I-485 at the same time, but only when a visa is immediately available.

Yes, upon issuance of this rule, an alien whose Form I-140 visa petition is pending with the Service may file Form I-485, together with associated forms and fees, with the Service office at which the visa petition was filed. When filing Form I-485, the alien will be required to attach a copy of the Form I-797, Notice of Action, establishing previous receipt and acceptance by the Service of the underlying Form I-140 visa petition. When an immigrant visa is immediately available, Form I-485 may be filed either concurrently with the Form I-140 or anytime thereafter.

Yes, upon issuance of this rule, if a visa number becomes immediately available since filing of the underlying Form I-140, the alien may tehn file Form I-485, together with associated forms and appropriate fees, with the Service office at which the visa petition was filed. When filing Form I-485, the alien will be required to attach a copy of the Form I-797, Notice of Action, establishing previous receipt and acceptance by the Service of the underlying Form I-140 visa petition.

For aliens in deportation or removal proceedings, 8 CFR 245.2(a)(2) establishes “applications shall be made and considered only in those proceedings.” If the alien is before the Immigration Court, the Form I-485, associated documents and proof of payment of the fees must be filed with the Immigration Court. If the alien has an appeal pending before the Board, the Form I-485, associated documents and proof of payment of the fees must be filed with the Board. The fees must first be paid to, and receipt obtained from, the Service.

No. The filing of an adjustment action where the underlying visa petition is not current does not by itself stop or stay (suspend) the proceedings. The Board will only accept the filing of the Form I-485 for placement into the Record of Proceedings (ROP). This filing is not a motion to reopen, motion to reconsider, or any other motion beyond a request to include the adjustment application in the file. Furthermore, accepting the application and placing it in the ROP is not a reopening or reconsidering of the case, nor any other action pertaining to the case. If the underlying petition for the alien is approved and a visa is or becomes immediately available, the alien must affirmatively move the Immigration Court or the Board of Immigration Appeals to consider the application for adjudication, or remand the application to the Service for adjudication if the Service concurs in the remand.

These amendments will allow the Service to issue Employment Authorization Documentation (EAD) and advance parole authorization (which allows the alien to travel outside of the United States temporarily while his or her Form I-485 is pending with the Service) to certain alien workers within substantially less time than at present. In being able to apply for employment authorization and advance parole, the alien may avoid the adverse consequences of accrual of unlawful presence. To achieve the desired efficiency improvement in the Service's processing, only aliens who have filed a Form I-140 for which a visa number is immediately available and Form I-485 will qualify for these benefits. Therefore, as a result of this interim rule, an eligible beneficiary of a Form I-140 visa petition for whom a visa is immediately available will no longer need to wait for approval of the underlying Form I-140 before eligible to apply for these benefits.

On September 6, 2000, the Service published in the Federal Register at 64 FR 53889 an interim rule relating to national interest job offer waivers for physicians. Under 8 CFR 245.18(f) of that interim rule, when a physician files for adjustment of status the Service is required to give a physician notice of specific requirements relating to the adjustment of the physician's status. This interim rule concerning concurrent filing of Forms I-140 and I-485 requires one conforming amendment to 8 CFR 245.18(f). If the physician filed the Form I-485 concurrently with the Form I-140, the Service will give the required notice upon approval of the Form I-140, rather than upon receipt of the Form I-485. If the physician waits to subsequently file the Form I-485 while the previously filed Form I-140 is still pending, then the Service will give the required notice upon approval of the Form I-140. If the physician files the Form I-485 after the Form I-140 is approved, then the Service will give the required notice upon receipt of the Form I-485.

The Service's implementation of this rule as an interim rule, with provision for post-promulgation public comment, is based upon the “good cause” exception found at 5 U.S.C. 553(b)(B) and (d)(1). This rule relieves the current restriction that bars the filing of an application for permanent residence (Form I-485) until after the underlying visa petition (Form I-140) has been approved. This rule is intended to provide efficiency and fairness to applicants. It is therefore impractical, unnecessary, and contrary to the public interest to publish this rule with the prior notice and comment period normally required under 5 U.S.C. 553(b).

The Commissioner of the Immigration and Naturalization Service, in accordance with 5 U.S.C. 605(b), has reviewed this interim rule and, by approving it, certifies that this rule does not have a significant economic impact on a substantial number of small entities. This rule is intended to expedite alien worker authorization while the alien's permanent status application (Form I-485) is pending. This rule affects individual aliens, not small entities as that term is defined in 5 U.S.C. 601(6).

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one-year, and it 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 rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million 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.

This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

The information collection requirement (Form I-140) contained in this rule has been approved for use by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. The OMB control number for this information collection is contain in 8 CFR 299.5, Display of control numbers.

Federal Register Document 02-11495 published on Wednesday, May 8, 2002 (67 FR 30778), modified Class D and Class E Airspace at Bloomington, IN. The Docket incorrectly referred to Bloomington, IL rather than Bloomington, IN. This action corrects these errors, by replacing the State of IL with the State of IN throughout the document.

Accordingly, pursuant to the authority delegated to me, the errors for the Class D and Class E Airspace, Bloomington, IN, as published in the Federal Register Wednesday, May 8, 2002 (67 FR 30778), (FR Doc. 02-11495), are corrected as follows:

1. In Order No. 587-O, 1 the Federal Energy Regulatory Commission (Commission) amended § 284.12 of its open access regulations to incorporate by reference Version 1.5 of the consensus industry standards for the natural gas industry promulgated by the Wholesale Gas Quadrant of the North American Energy Standards Board (NAESB). These standards include requirements related to title transfer tracking (TTT) under which pipelines generally are responsible for accommodating title transfer tracking services at all pooling points.

2. On May 31, 2002, National Fuel Gas Supply Corporation (National Fuel) filed a request for clarification and rehearing relating to the adoption of the TTT standards. In particular, National Fuel contends that pipelines need only support TTT where the pipeline has a contractual relationship with a Title Transfer Tracking Service Provider or Third Party Account Administrator and that the only parties for whom pipelines need to accommodate TTT services are Title Transfer Tracking Service Providers or Third Party Account Administrators. As discussed below, the Commission provides clarification that a party requesting the processing of title transfers must have a contract with the pipeline, but denies National Fuel's request that pipelines be required to process title transfer nominations only from Title Transfer Tracking Service Providers and Third Party Account Administrators. This decision is in the public interest because it will ensure that pipelines will not limit the processing of title transfers to select parties, but will provide the same service, without undue discrimination, to all shippers.

3. Title transfer is defined as “the change of title to gas between parties at a location.”  2 Title Transfer Tracking (TTT) is defined as “the process of accounting for the progression of title changes from party to party that does not effect a physical transfer of the gas.”  3 The two NAESB standards generally defining the pipelines' responsibility for processing title transfers are Standards 1.3.64 and 1.3.65. 4 Standard 1.3.64 provides:

Standard 1.3.65 states:

4. In Order No. 587-O, the Commission interpreted these standards as requiring pipelines to permit and process, on a non-discriminatory basis, transportation nominations (along with required responsive scheduling information) effecting transfers of title at pooling points by any party including shippers, poolers, or third party account administrators. 5 The Commission provided the following example of the pipeline's obligations under the standards. In the example, Producer A aggregates 1000 Dth of gas from three receipt points at its pool at Pool 1, sells 1000 Dth to Marketer B at Marketer B's pool at Pool 1, and Marketer B sells 1000 Dth to Shipper C at the pooling point for transportation to Shipper C's delivery point under Shipper C's firm transportation contract. The Commission explained that, under the NAESB standards, the pipeline would have to process a transportation nomination from Producer A and the required scheduling responses to reflect the transfer of gas from Producer A's pool to Marketer B's pool. Other than processing the transportation nomination to reflect the in-place transfer of gas, the pipeline would be required to provide no other “accounting services”  6 respecting the transfer of title.

5. In its rehearing request, National Fuel maintains the Commission should clarify that pipelines need only support TTT where the pipeline has a contractual relationship with a Title Transfer Tracking Service Provider or Third Party Account Administrator. National Fuel further contends that the only parties for whom pipelines need to accommodate TTT services are Title Transfer Tracking Service Providers or Third Party Account Administrators.

6. On June 7, 2002, Dominion Resources, Inc. also filed a request for rehearing or reconsideration and clarification of Order No. 587-O. This rehearing request was filed late, and, accordingly, will not be addressed. 7

7. National Fuel maintains that the Commission's statement in Order No. 587-O (that pipelines must “effect[] transfers of title at pooling points by any party including shippers, poolers, or third party account administrators”) can be read to require pipelines to process title transfers regardless of whether there is a contractual relationship between the party transferring title and the pipeline. National Fuel further argues that the Commission has incorrectly provided that pipelines must accommodate TTT services from other than Title Transfer Tracking Service Providers (and Third Party Account Administrators), 8 and it urges the Commission to clarify that the obligation of a pipeline to accommodate TTT services arises in the context of services requested to be performed by Title Transfer Tracking Service Providers and Third Party Account Administrators.

8. The Commission agrees with National Fuel that pipelines need only process title transfers from parties with contractual relationships with the pipeline. Pipelines need to be able to verify the parties with whom they deal. The obligation to process title transfer nominations, however, extends to any party with a contractual relationship with the pipeline, including, but not limited to, parties with transportation or storage contracts, pooling contracts or operational balancing agreements, Third Party Account Administrators, and agents of any of the foregoing.

9. The Commission does not agree with National Fuel's interpretation of the standards as providing that pipelines are required to accommodate title transfers only with Third Party Account Administrators, and denies the rehearing request. The Commission finds that, as discussed below, National Fuel's interpretation is not supported by the text of the standards. Moreover, adopting National Fuel's interpretation, which would limit the obligation of a pipeline to provide nomination services only for certain third parties, would lead to practical difficulties, and would be inconsistent with a pipeline's obligation to provide services in a not unduly discriminatory manner under the Natural Gas Act, and the Commission's regulations.

10. The two principal standards defining the pipelines' obligations to support title transfers are Standards 1.3.64 and 1.3.65. In relevant part, these standards provide that “at a minimum, the Transportation Service Providers (TSP) should be responsible for accommodating Title Transfer Tracking (TTT) services at all points identified by the TSP as pooling points, where TTT services are requested,” and that “the Title Transfer Tracking services should be supported by means of the nominations, quick responses and scheduled quantities processes.” These standards do not state that pipelines are to support title transfer tracking only with Title Transfer Tracking Service Providers or Third Party Account Administrators. 9 These standards impose a general obligation on pipelines to accommodate title transfer tracking at pooling points through the nominations, quick responses and scheduled quantities processes. 10 While other standards do require pipelines to accommodate title transfer tracking from Third Party Account Administrators, these standards do not provide that Third Party Account Administrators and Title Transfer Tracking Service Providers are the sole parties from whom pipelines are required to accommodate title transfer nominations. The ability to use Third Party Account Administrators is an additional option under the standards for obtaining title transfer tracking services; the standards do not make it the exclusive method of obtaining title transfer tracking services, nor do the standards specifically preclude shippers or others from undertaking the process of accounting for title transfers themselves. 11

11. Moreover, the standards define a Third Party Account Administrator only as “a Title Transfer Tracking Service Provider other than the Transportation Service Provider.” 12 This definition does not specifically define or limit who can be a Third Party Account Administrator, nor does it preclude a shipper, pooler, point operator, or other firm with a contract with the pipeline from acting as a Third Party Account Administrator only with respect to its own sales. National Fuel fails to provide citation to a specific definition of the characteristics necessary qualify as a Third Party Account Administrator, nor does it explain why under the standards any party, including a shipper, pooler, point operator, cannot qualify as a Third Party Account Administrator with respect only to its own transactions. The definition of Third Party Account Administrator, therefore, is sufficiently broad to include any party wanting to account for its own title transfers and supports the conclusion that pipelines are required to process nominations reflecting title transfers from any party with a contractual relationship with the pipeline.

12. National Fuel asserts that standard 1.2.19 (which provides that “[a] title transfer Nomination is a nomination line item requesting the service of Title Transfer Tracking and is sent by an Account Holder to a Title Transfer Tracking Service Provider”) and standard 1.2.16 (which defines a Title Transfer Tracking Service Provider as a “party conducting the title transfer tracking activity”) support its view that title transfer tracking nominations will be made only to the Title Transfer Tracking Service Provider, not the pipeline. But these standards only define the method by which shippers choosing to use a Third Party Account Administrator will communicate with the Third Party Account Administrator; the standards do not specifically state that pipelines are required to process title transfers only from Third Party Account Administrators or that pipelines can refuse to process title transfers from shippers or other parties. 13

In the Federal Register of May 20, 2002 (67 FR 35429), FDA amended the color additive regulations to add § 73.125 Sodium copper chlorophyllin (21 CFR 73.125) to provide for the safe use of sodium copper chlorophyllin as a color additive in citrus-based dry beverage mixes.

FDA gave interested persons until June 19, 2002, to file objections or requests for a hearing. The agency received no objections or requests for a hearing on the final rule. Therefore, FDA finds that the effective date of the final rule that published in the Federal Register of May 20, 2002, should be confirmed.

The U.S. Postal Service has assigned DEA a new post office box number that replaces the one listed in the Code of Federal Regulations for filing certain required reports. This occurred when the U.S. Postal Service relocated the post office. DEA does not have any discretion concerning this change.

DEA is revising Title 21, Code of Federal Regulations, wherever it mentions: P.O. Box 28346, Washington, DC 20038.

The new address for filing the affected reports is: P.O. Box 27284, Washington, DC 20038.

With publication of this rule, all reports must be sent to the new address.

Title 21 of the Code of Federal Regulations requires that certain reports for listed chemicals and tableting and encapsulating machines must currently be filed with the Drug Enforcement Administration at the old address (P.O. Box 28346). The reporting requirements are described in 21 CFR parts 1310 and 1313.

In 21 CFR part 1310, reports affected by the address change include those for the importation and exportation of tableting and encapsulating machines (21 CFR 1310.05(c)) and reports concerning the return of exported tableting or encapsulating machines (21 CFR 1310.06(g)).

In 21 CFR part 1313, the following reports are affected by the address change:

(1) DEA Form 486 for authorization to import listed chemicals (21 CFR 1313.12(b));

(2) Quarterly reports on importations of listed chemicals when the advance notification is waived and no DEA Form 486 is required (21 CFR 1313.12(e));

(3) DEA Form 486 for authorization to export listed chemicals (DEA 1313.21(b));

(4) Quarterly reports on exportation of listed chemicals when the advance notification is waived and no DEA Form 486 is required (21 CFR 1313.21(e));

(5) Reports concerning the return of exported listed chemicals (21 CFR 1313.22(e));

(6) Advance notices of importation for transshipment or transfer of listed chemicals (21 CFR 1313.31(b)); and

(7) DEA Form 486s from brokers or traders for authorization of international transactions of listed chemicals (21 CFR 1313.32(b)(1)).

An agency may find good cause to exempt a rule from certain provisions of the Administrative Procedure Act (5 U.S.C. 553), including notice of proposed rulemaking and the opportunity for public comment, if it is determined to be unnecessary, impracticable, or contrary to the public interest. This rule pertains to agency management, organization and procedure. DEA has no discretion in the change of the post office box number and thus finds it unnecessary and impracticable to permit public notice and comment. Therefore, DEA is publishing this document as a final rule. Further, as the change of address is imminent, and since a delay in the effective date of this regulation could impede the timely receipt of required reports by the regulated industry, DEA finds there is good cause to make this final rule effective immediately.

The Deputy Assistant Administrator hereby certifies that this rulemaking has been drafted in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation, and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. This final rule merely changes an address, permitting industry to report to DEA in a timely manner.

The Deputy Assistant Administrator further certifies that this rulemaking has been drafted in accordance with the principles in Executive Order 12866 Section 1(b). DEA has determined that this is not a significant rulemaking action. Therefore, this action has not been reviewed by the Office of Management and Budget.

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

This rulemaking 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 laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.

This rule will not result in the expenditure by State, local, and 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 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.

The Drug Enforcement Administration has determined that this action is a rule relating to agency procedure and practice that does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. Section 801 does not apply.

This document, the NPRM, and all comments received may be viewed online through the Document Management System (DMS) at: http://dms.dot.gov. The DMS is available 24 hours each day, 365 days each year. Electronic submission and retrieval help and guidelines are available under the help section of the web site.

An electronic copy of this document may also be downloaded by using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may also reach the Office of the Federal Register's home page at: http://www.nara.gov/fedreg and the Government Printing Office's web page at: http://www.access.gpo.gov.

The current color specifications are on file at the Office of the Federal Register, 800 North Capitol Street, NW., 7th Floor, Suite 700, Washington, DC 20408, and are available for inspection and copying at the FHWA, Office of Transportation Operations, Room 3408, 400 7th St., SW., Washington, DC 20590, as prescribed in 49 CFR part 7.

This final rule is based on the FHWA's notice of proposed rulemaking (NPRM), Traffic Control Devices on Federal-Aid and Other Streets and Highways; Color Specifications for Retroreflective Sign and Pavement Marking Materials, published in the Federal Register on December 21, 1999, at 64 FR 71354. All comments received in response to the NPRM have been considered in adopting this final rule. These comments are discussed in the section entitled “Discussion of Comments.”

The MUTCD is incorporated by reference in 23 CFR 655.601. The color specifications are found in the appendix to subpart F of part 655.

The current specifications for the color of retroreflective sign sheeting were determined on the basis of material available nearly 20 years ago. Since then, new microprismatic material has been commercially available and the original CIE  1 Illuminant C has been replaced with CIE Illuminant D 65 . In addition, an extensive international effort is in progress to specify the nighttime appearance of retroreflective materials. Lastly, expanding the specifications to include fluorescent materials is also necessary at this time since these materials are used on several traffic signs. In addition to revising the daytime color specifications for retroreflective sign sheeting material used primarily for traffic signs, color specifications for pavement markings and markers are included in this revision.

Interested persons were invited to participate in the development of this final rule by submitting written or electronic comments on the NPRM to FHWA Docket No. FHWA-99-6190 on or before June 21, 2000. The FHWA received 21 comments to the docket (6 from State and local DOTs; 7 from industry; 4 from associations; 3 from institutes/universities; and 1 Federal agency). The FHWA received significant comments that included concerns with the availability and cost of the laboratory equipment used, concerns with the use of illuminant D 65 for evaluating the performance of luminescent for fluorescent materials, the use of luminescent luminance factor (Y F ) for fluorescent materials.

The FHWA believes the amount of information presented in the tables published in the NPRM may be overwhelming in content and confusing. The FHWA has placed the “luminance” values in a separate table (i.e., 1a, 3a, and 5a). It is important for users to know that these sub-tables should be read together in order to define the correct color requirement.

Commenters recommended that FHWA provide the appropriate references for types of sheeting material for retroreflective materials. A breakdown of sheeting type has been added as Table 1a.

Another concern identified through several comments was the lack of human factors research related to driver recognition of sign colors. The discussion of human factors research is beyond the scope of this rulemaking and will be addressed in the future. While laboratory studies have indicated that human observers require fairly small color regions to achieve a high degree of agreement (greater than 90 percent) for color naming, there have been no studies with forced choices. That is, when presented with a variety of samples spanning colors within a given color region, responses will vary. Additional studies are needed wherein the observer is forced to choose between specified color names to determine if samples taken from near the allowable color region boundaries might be mistaken for a neighboring color. Pending such studies, however, there are no indications that the existing color system should be modified. The color regions in the final rule are not significantly different from previously defined color regions and should not be changed without substantial indication of inadequacy.

Several commenters recommended that color specifications for the color “fluorescent red” be included in the specifications. Fluorescent red was not proposed in Tables 3 or 4 of the NPRM and it is beyond the scope of this rulemaking. However, this color will be addressed in future rulemaking, which will allow the public the opportunity to comment on the proposed specification.

The FHWA adopts, with some changes, the proposed Table 1 to Part 655, Subpart F, Daytime Color Specification Limits for Retroreflective Material with CIE 2 Degree Standard Observer and 45/0 (0/45) Geometry and CIE Standard Illuminant D 65 . The American Society for Testing and Materials (ASTM) sets industry standards for defining daytime sign color. It also established a standard addressing color specifications. With few exceptions, Table 1 is the same as this standard.

The color specifications for “white” have been adjusted from table 1, proposed in the NPRM, which results in a slight enlargement of the color region in all directions. This slightly larger color region will not result in loss of color differentiation between white and other colors as long as differences in the daytime luminance factors are maintained.

The color specifications for “orange” have been adjusted from the proposed table by adjusting the red border which allows a slightly shorter wavelength hue line than that proposed in the NPRM. This results in a slightly greater separation between the red and orange color regions which will aid in daytime color recognition.

The “purple” color specifications have been modified to reflect the colors actually in use. Several commenters pointed out that specifying precise color regions for unassigned colors may be premature. Accordingly, a revised color region, incorporating both the hues from the initial proposal in the NPRM and the existing commercial materials, are recommended. As use of the materials is further refined, the purple color box may be optimized or even separated into two distinct colors.

The “coral” and “yellow-green” color specifications have been removed from this table. Several commenters mentioned that there are no studies that indicate yellow-green or coral are effective signing colors. The FHWA has adopted the color “fluorescent yellow-green” for use with pedestrian, school, and bicycle crossing warning signs and has included color specifications in Table 3.

The color “fluorescent coral” is being proposed for use in incident management and is being considered under FHWA Docket No. FHWA-2001-11159, published at 67 FR 35850 on May 21, 2002.

In response to several docket comments, we have removed the color “black” from the table. Black sheeting used in traffic control signage is not a retroreflective product. Commercially available vinyl elastomeric films meet all the requirements for a high-contrast legend material.

We have added Table 1a to part 655, Subpart F, Daytime Luminance Factors (percent) for Retroreflective Material with CIE 2 Degree Standard Observer and 45/0 (0/45) Geometry and CIE Standard Illuminant D 65 , in order to be consistent with the format found in ASTM Standard Specification D4956-01 2 which provides three separate tables of daytime luminance factors (Y) for retroreflective materials: One for ASTM Types I, II, III and VI sheeting; one for ASTM Types IV, VII, VIII, and IX; and the third for ASTM Type V sheeting. The different manufacturing techniques for the various ASTM types have resulted in varying luminance factors. ASTM Type V is metallized microprismatic retroreflecting material used primarily for delineators. This material is not the predominant daytime signal, but provides a nighttime signal for delineation.

The FHWA has adopted Table 2 to part 655, Subpart F, Nighttime Color Specification Limits for Retroreflective Material With CIE 2 Degree Standard Observer and Observation Angle of 0.33 Degrees, Entrance Angle of Plus 5 Degrees and CIE Standard Illuminant A, with very minor changes. The color specifications for the color “orange” have been reordered and the two missing coordinates for the color “red” have been added. The color “coral” has been removed from the table for reasons given in the preamble discussion for Table 1. At present there are no known instruments available for field measurement of nighttime color.

The FHWA has adopted Table 3 to Part 655, Subpart F, Daytime Color Specification Limits for Fluorescent Retroreflective Material With CIE 2 Degree Standard Observer and 45/0 (0/45) Geometry and CIE Standard Illuminant D 65 . The contents of Tables 3 and 4 reflect the general comments received in response to the docket. The white boundaries for fluorescent colors have been shifted closer to the chromaticity diagram loci from those positions proposed in the NPRM in response to comments that color saturation is as important as luminance to achieve high conspicuity for colored materials.

The FHWA has added Table 3a to Part 655, Subpart F, Daytime Luminance Factors (Percent) for Fluorescent Retroreflective Material With CIE 2 Degree Standard Observer and 45/0 (0/45) Geometry and CIE Standard Illuminant D 65 , which contains the luminance factors found in Table 3 proposed in the NPRM for easier recognition. Specifying the requirements for high-conspicuity (fluorescent) materials by using daytime luminance factors under CIE Standard Illuminants D 65 and D 150 (analogous to noontime and twilight) have been extensively discussed with the ASTM. There is disagreement over the use of the fluorescent luminance factor (Y F ) as a material requirement since Y F cannot be measured in the field at this time. As an interim step, the FHWA is defining high-conspicuity materials using a value for the daytime luminance factor that roughly equals 70 percent of the MacAdam Limit  3 for a color near the centroid of the color region. The fluorescent luminance factor (Y F ) for high-conspicuity materials is provided as a provision for quality control by manufacturers, and is not recommended as a measurement of materials performance for acceptance or while in service.

Table 4 to part 655, Subpart F, Nighttime Color Specification Limits for Fluorescent Retroreflective Material With CIE 2 Degree Standard Observer and Observation Angle of 0.33 Degree, Entrance Angle of Plus 5 Degrees and CIE Standard Illuminant A, is adopted with only a slight re-ordering of the x,y coordinates for consistency. At present there are no known instruments available for field measurement of nighttime color.

Table 5 to part 655, Subpart F, Daytime Color Specification Limits for Retroreflective Pavement Marking Material With CIE 2 Degree Standard Observer and 45/0 (0/45) Geometry and CIE Standard Illuminant D 65 , is adopted with only a slight re-ordering of the x,y coordinates for consistency.

Table 5a part 655, Subpart F, Daytime Luminance Factors (Percent) for Retroreflective Pavement Marking Material With CIE 2Degree Standard Observer and 45/0 (0/45) Geometry and CIE Standard Illuminant D 65 , is added and, for easier recognition, contains the luminance factors found in the Table 5 proposed in the NPRM. The luminance factor (Y) for white and yellow pavement marking materials proposed in the NPRM were significantly higher than values typically measured on the National Transportation Product Evaluation Program test decks after a fairly short period of time. The FHWA deleted the column heading “Without Glass Beads” as the materials should be measured in the manner they are intended to be used, which includes the glass beads.

Table 6 to part 655, subpart F, Nighttime Color Specification Limits for Retroreflective Pavement Marking Material with CIE 2 Degree Standard Observer, Observation Angle of 1.05 Degrees, Entrance Angle of Plus 88.76 Degrees and CIE Standard Illuminant A, is adopted in the final rule with a modification to what was proposed in the NPRM to the yellow pavement marking materials. The proposed specifications did not provide sufficient separation between yellow and white, leading to the potential loss of color recognition at night. This specification corrects that problem.

The FHWA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of the U.S. Department of Transportation regulatory policies and procedures. The economic impact of this rulemaking will be minimal. Although the new specifications have been revised to incorporate the latest research, the basic criteria remain essentially the same. These changes will not adversely affect, in a material way, any sector of the economy. In addition, these changes will not interfere with any action taken or planned by another agency and will not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the FHWA has evaluated the effects of this action on small entities and has determined that this action will not have a significant economic impact on a substantial number of small entities. As stated above, although the FHWA has amended this final rule to incorporate the latest research, the basic criteria remain essentially the same. For these reasons, the FHWA certifies that this action will not have a significant economic impact on a substantial number of small entities.

This rule will not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (2 U.S.C. 1531 et seq).

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

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

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999, and the FHWA has determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism assessment. The FHWA has also determined that this action will not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq. ), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this action does not contain collection of information requirements for the purposes of the PRA.

The FHWA has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and has determined that this action will not have any effect on the quality of the environment.

The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that it will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal law. Therefore, a tribal summary impact statement is not required.

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. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.

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

The Florida Department of Transportation requested on July 22, 2002, that the Coast Guard temporarily allow the Flagler Memorial bridge to only open a single leaf of the bridge from 9:30 a.m. until 3:30 p.m., from July 29, 2002 until August 1, 2002. This temporary deviation from the existing bridge regulations is necessary to effect emergency repairs to the bascule leaves. The Flagler Memorial bridge has a horizontal clearance of 40 feet between the fender and the single down span.

The District Commander has granted a temporary deviation from the operating requirements listed in 33 CFR 117.5 to allow the owner to complete emergency repairs to the bascule leaves. Under this deviation, the Flagler Memorial bridge need only open a single leaf of the bridge from 9:30 a.m. until 3:30 p.m., from July 29, 2002 until August 1, 2002.

The bridge owner, National Passenger Railroad Corporation (Amtrak), requested a temporary deviation from the drawbridge operating regulations to facilitate necessary maintenance, to install new miter rails, bridge blocks, and other general maintenance, at the bridge. The performance of these repairs require the bridge to remain in the closed position.

Although the bridge owner did not provide the required thirty days notice to the Coast Guard prior to the effective date of this temporary deviation, the Coast Guard has approved this deviation because this work must be performed with undue delay to insure continued safe reliable operation of the bridge.

Under this temporary deviation the Amtrak Dock Bridge may remain closed to vessel traffic from 9 p.m. on July 26, 2002 through 5 a.m. on July 29, 2002, and from 9 p.m. on August 2, 2002 through 5 a.m. on August 5, 2002.

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

On April 18, 2002, we published a notice of proposed rulemaking (NPRM) entitled “Security Zones; Captain of the Port Milwaukee Zone, Lake Michigan” in the Federal Register (67 FR 19142). We received 14 letters and 2 petitions commenting on the proposed rule. No public hearing was requested, and none was held.

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 permanent security zones being established by this rulemaking are smaller in size than the temporary security zones currently in effect. By immediately implementing the smaller zone size, we will be relieving some of the burden placed on the public by a larger security zone.

On September 11, 2001, the United States was the target of coordinated attacks by international terrorists resulting in catastrophic loss of life, the destruction of the World Trade Center, significant damage to the Pentagon, and tragic loss of life. National security and intelligence officials warn that future terrorists attacks are likely.

This regulation establishes two permanent security zones for the following facilities:

(1) Point Beach nuclear power plant, and

(2) Kewaunee nuclear power plant.

These security zones are necessary to protect the public, facilities, and the surrounding area from possible sabotage or other subversive acts. All persons other than those approved by the Captain of the Port Milwaukee, or his authorized representative, are prohibited from entering or moving within the zones. The Captain of the Port Milwaukee may be contacted via VHF Channel 16 for further instructions before transiting through the restricted area. The Captain of the Port Milwaukee's on-scene representative will be the patrol commander. In addition to publication in the Federal Register , the public will be made aware of the existence of these security zones, their exact locations, and the restrictions involved via Local Notice to Mariners and the Broadcast Notice to Mariners.

During the public comment period, we received 14 letters. All expressed concern that the security zone would exclude fishermen from a good fishing area and that the security zone would do little to prevent acts of terrorism.

One letter was a form comment signed by 129 individuals stating that a no-fishing, no-boating zone, marked by buoys, will help to deter a terrorist attack. However, the ban will prevent fishermen from enjoying good fishing in that area. Another letter was a form comment signed by 145 individuals stating that the current level of security is sufficient and that they would like to see the area open to fishermen.

The Captain of the Port Milwaukee has carefully weighed security concerns versus public access in the decision to establish security zones. The security zones create a clear area in which unauthorized persons are readily detectable. This area, coupled with regular Coast Guard patrols, the assistance of state, local, and the nuclear power plant security personnel, all help to create an area to detect and respond to unauthorized individuals.

Thirteen comments indicated that recreational boaters are being deprived of good fishing areas and a beach area for families and tourists to enjoy. Due to the events of September 11, 2001, both nuclear power plants have already taken steps that prohibit access to beach and park areas. These steps include prohibiting beach and park access, posting signs, and regular roaming patrols. Nuclear plants are critical infrastructure throughout the country, providing electricity to millions of homes and cities. In addition, the plants pose a significant radiological hazard should their structural integrity be compromised. The Captain of the Port Milwaukee has determined that the best practice to ensure the safety of these facilities is to provide a clear area in which no vessels or persons are allowed access without specific permission from the Captain of the Port Milwaukee.

One comment was from a local charter boat captain who was concerned about the impact the security zones would have on the local charter fleet. The Captain of the Port Milwaukee has taken every step possible to minimize the impact of the permanent security zones by decreasing the size from that of the temporary security zone. The permanent security zone sizes were carefully considered and balance the safety and security of the facility versus access to the area. The permanent zone size, while smaller than the temporary zone size, continues to provide a clear area in which to detect persons or vessels while providing for traditional use around the security zones.

The Captain of the Port Milwaukee feels that this action is currently necessary until there is domestic security intelligence to indicate otherwise. As circumstances allow, the Captain of the Port Milwaukee may take steps to relieve the burden imposed on the public by allowing general access, reducing the zone size, or deactivating the security zones. However, this final rule remains unchanged from the proposed rule.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT)(44 FR 11040, February 26, 1979).

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.

These security zones will not have a significant economic impact on a substantial number of small entities for the following reasons. Our rule will not obstruct the regular flow of commercial traffic and will allow vessel traffic to pass around the security zone. In addition, in the event that is may be necessary, prior to transiting commercial vessels can request permission from the Captain of the Port Milwaukee to transit through the zone.

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 could better evaluate its effects on them and participate in the rulemaking process. No comments or questions were received from any small businesses.

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.

On June 10, 2002, we published a temporary final rule (TFR) titled “Safety Zone; North Pacific Ocean, Gulf of the Farallones, offshore of San Francisco, CA” in the Federal Register (67 FR 39598) under § 165.T11-082. It has been in effect since May 14, 2002 and is set to expire 11:59 p.m. PDT on July 31, 2002.

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. The original TFR was urgently required because once it was decided that oil removal was the most prudent means of protecting against future discharges from the sunken vessel, it was determined that publishing a NPRM and delaying the effective date of the safety zone would be contrary to the public interest. As of today, the need for this safety zone still exists because inclement weather has thwarted oil removal operations for several weeks and thus much of the oil has yet to be removed from the vessel. Accordingly, using the same rationale that was used for the original TFR, publishing a NPRM and delaying the effective date would be contrary to the public interest since the oil removal operations necessitating this safety zone would likely terminate before the rulemaking process was complete.

For the same reasons stated above, 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 .

In November of 2001, the Coast Guard and other cognizant government agencies began receiving reports of oiled birds washing ashore along the California coastline between Monterey and Sonoma counties. Weeks of searching for surface sheens yielded negative results and prompted responding government agencies to consider sunken vessels in the area as possible sources of the contaminating oil. By February 2002, responding agencies identified the sunken freight vessel JACOB LUCKENBACH as the most probable source and began deploying camera-equipped remotely operated vehicles (ROVs) in order to view the sunken vessel. During this period, the Coast Guard learned that recreational and commercial divers had been diving on or were planning to dive on the sunken vessel while responding agencies were conducting the on-scene investigation. In February 2002, the Coast Guard established a temporary safety zone in the navigable waters surrounding the JACOB LUCKENBACH in order to protect persons and vessels from hazards associated with the investigation operations. That temporary safety zone expired at the end of April 2002.

The Coast Guard and other government agencies have reviewed the results of the investigation and have determined that removal of the oil from within the JACOB LUCKENBACH is the most prudent means of protecting against future oil discharges. Removal of the oil will require several surface and submersible vessels and associated equipment, all of which present hazards, particularly collision dangers, to persons and vessels in the area. As of today, the need for this safety zone still exists because inclement weather has thwarted oil removal operations for several weeks and thus much of the oil has yet to be removed from the vessel. This temporary final rule will extend this safety zone that was set to expire July 31, 2002 for 2 months—from July 31, 2002, to September 30, 2002.

In order to continue facilitating safe oil removal operations and to guard against the possibility of an accidental discharge of a large quantity of oil into the environment, the Coast Guard is extending the current temporary safety zone in the navigable waters surrounding the sunken vessel. The safety zone encompasses all waters from the surface of the ocean to the bottom within a one nautical mile radius centered at 37°40.38′ N, 122°47.59′ W, the approximate position of the JACOB LUCKENBACH. Entry into, transit through or anchoring in this zone by persons, vessels or ROVs is prohibited, unless authorized by the Captain of the Port, or his designated representative. The requirements of this safety zone do not apply to deep draft vessels transiting within the Offshore Traffic Separation Scheme.

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). Due to the continued short duration and limited geographic scope of the safety zone, the Coast Guard expects the economic impact of this rule to be so minimal that full regulatory evaluation under paragraph 10 (e) of the regulatory policies and procedures of DOT is unnecessary.

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

For these reasons and the reasons stated in the Regulatory Evaluation section above, 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.

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.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), the Coast Guard offers to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact 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 requirements 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 safety zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

On December 26, 2001, we published a notice of proposed rulemaking (NPRM) entitled “Safety Zone; Vessel Launches, Bath Iron Works, Kennebec River, Bath, ME” in the Federal Register (66 FR 66380). We received no letters commenting on the proposed rule. No public hearing was requested, and none was held.

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 . Any delay in the establishment of this rule would be contrary to the public interest as this safety zone is necessary immediately to ensure the safety of the maritime community during vessel launches currently scheduled for the beginning of August. Bath Iron Works has informed the Coast Guard that they will be using the dry dock several times in the near future, beginning August 2, 2002, as they complete work on several large vessels. It is necessary to make this rule effective in less than 30 days after publication in order to protect the maritime community from the possible hazards to navigation associated with positioning a 700-foot dry dock near the center of the Kennebec River to launch and recover large vessels.

The Bath Iron Works facility in Bath, Maine acquired a 700-foot dry dock to aid in vessel launchings and repairs. This dry dock needs to be pulled away from shore and placed in a dredged basin near the center of the Kennebec River, approximately 0.5 nm south of the new Bath-Woolwich Bridge and just to the east of Trufant Ledge, in order to submerge and be able to launch and recover vessels. To accomplish this a series of permanent anchors and submerged chains in the river is used. It is necessary to restrict vessel movement in this area during deployment to protect mariners from this system and any associated vessels involved with the deployment.

This rule establishes a permanent moving safety zone around the dry dock when it is being moved from its moored position at the Bath Iron Works facility to its deployed location in the dredged basin of the Kennebec River, and from its deployed location back to its mooring.

This rule also establishes a permanent safety zone around the dry dock while it is in its deployed position in the waters of the Kennebec River. This safety zone restricts entry into the waters of the Kennebec River within a 150-yard radius of the dry dock. This safety zone is needed to protect the maritime community from the possible dangers and hazards to navigation associated with positioning a 700-foot dry dock near the center of the Kennebec River to launch and recover large vessels.

The Coast Guard received no comments for this rulemaking. Only one change has been made to the proposed rule in this final rulemaking. The NPRM for this rule proposed to redesignate 33 CFR § 165.103 as § 165.108 and designate this rule as § 165.103. The Coast Guard, in the interim, has revised § 165.103. Rather than moving and revising § 165.103 we will add a new section designated as § 165.104.

This proposed 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 10e of the regulatory policies and procedures of DOT is unnecessary for the following reasons: This safety zone would only be activated when the dry dock is relocated to its launch and recovery position, and during vessel launch and recovery; the safety zone only restricts movement in a portion of the Kennebec River allowing vessels to safely navigate around the zone without delay; the maritime community will be notified of the restrictions via broadcast notice to mariners; and there will be advanced coordination of vessel traffic around the safety zone to minimize the effect on commercial vessel traffic.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612) we have considered whether this proposal 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.

Guard expects the impact of this regulation to be minimal and certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.

Under section 213 (a) of the Small Business Regulatory Enforcement

Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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

This rule contains no collection of information requirements 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 section 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 tribe, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

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

A notice of proposed rulemaking (NPRM) was not published for this regulation. In accordance with 5 U.S.C. 553 (b)(B), the Coast Guard finds good cause exists for not publishing an NPRM. The Coast Guard is taking this action for the immediate protection of the national security interests in light of terrorist acts perpetrated on September 11, 2001. Also, in accordance with 5 U.S.C. 553 (d)(3), the Coast Guard finds good cause to exist for making this regulation effective less than 30 days after publication in the Federal Register . Publication of a notice of proposed rulemaking and delay of effective date would be contrary to the public interest because immediate action is necessary to provide for the safety of the TAPS terminal and TAPS tank vessels.

On November 7, 2001, we published three temporary final rules in the Federal Register (66 FR 56208, 56210, 56212) that created security zones effective through June 1, 2002. The section numbers and titles for these zones are—

Then on June 4, 2002, we published a temporary final rule (67 FR 38389) that established security zones to replace these security zones that expired June 1, 2002. That rule issued in June, which will expire July 30, 2002, created temporary § 165.T17-009, entitled “Port Valdez and Valdez Narrows, Valdez, Alaska”. This temporary rule will replace the § 165.T17-009 temporary security zones are only effective until July 30, 2002.

This temporary final rule establishes three security zones. The Trans-Alaska Pipeline (TAPS) Valdez Marine Terminal Security zone encompasses the waters of Port Valdez between Allison Creek to the east and Sawmill Spit to the west and offshore to marker buoys A and B (approximately 1.5 nautical miles offshore from the TAPS Terminal). The Tanker Moving Security Zone encompasses the waters within 200 yards of a TAPS Tanker within the Captain of the Port, Prince William Sound Zone. The Valdez Narrows Security Zone encompasses the waters 200 yards either side of the Tanker Optimum Trackline through Valdez Narrows between Entrance Island and Tongue Point. This zone is active only when a TAPS Tanker is in the zone. This temporary final rule reflects the changes to 33 CFR part 1701 submitted for regulatory review and publication as a Notice of Proposed Rulemaking (NPRM) in the Federal Register . The Coast Guard has worked closely with local and regional users of Port Valdez and Valdez Narrows waterways to develop these security zones and the NPRM in order to mitigate the impact on commercial and recreational users. This temporary final rule establishes a uniform transition from the temporary operating zones while the NPRM is reviewed for publication.

Although the Coast Guard has good cause in implementing this regulation without a notice of proposed rulemaking, we want to afford the maritime community the opportunity to participate in this rulemaking by submitting comments and related material regarding the size and boundaries of these security zones in order to minimize unnecessary burdens. If you do so, please include your name and address, identify the docket number for this rulemaking, COTP Prince William Sound 02-011, indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this temporary final rule in view of them.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. It has not been reviewed by the Office of Management and Budget under that order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. Economic impact is expected to be minimal because of the short duration of this rule and the season in which it is in effect.

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 number of small entities impacted by this rule is expected to be minimal because of the short duration of the rule. Since the time frame this rule is in effect may cover commercial harvests of fish in the area, the entities most likely affected are commercial and native subsistence fishermen. The Captain of the Port will consider applications for entry into the security zone on a case-by-case basis; therefore, it is likely that very few, if any, small entities will be impacted by this rule. Those interested may apply for a permit to enter the zone by contacting Marine Safety Office, Valdez at the above contact number.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule contains no information collection requirements under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

The Coast Guard has analyzed this rule under the principles and criteria contained in Executive Order 13132 and has determined that this temporary final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

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 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.

The Coast Guard considered the environmental impact of this rule and concluded that, under Figure 2-1, paragraph 34(g) of Commandant Instruction M16745.1D, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

VA is amending its adjudication regulations regarding service connection for disabilities incurred or aggravated during inactive duty for training. The regulation amending 38 CFR 3.6 to implement Public Law 106-419, November 1, 2000, Veterans Benefits and Health Care Improvement Act of 2000, used wording slightly different from the wording of the Act. We are amending the regulation to accurately reflect the wording of the Act.

We are publishing this as a final rule because the amendment only restates the statute and makes no substantive changes in the regulation. (5 U.S.C. 553).

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

The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance program numbers are 64.109 and 64.110.

Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Veterans, Vietnam.

In a document published in the Federal Register on January 2, 2002 (67 FR 200), we proposed to amend the VA adjudication regulations to provide for payment of a monetary allowance for an individual with disability from one or more covered birth defects who is a child of a woman Vietnam veteran and to provide for the identification of covered birth defects, to implement provisions in recent legislation. In addition, we proposed to amend the VA adjudication regulations affecting benefits for Vietnam veterans' children with spina bifida to reflect that legislation, to make conforming changes, and to remove unnecessary or obsolete provisions. Companion proposed rule documents concerning the provision under that legislation of health care (RIN: 2900-AK88) (67 FR 209) and vocational training benefits (RIN: 2900-AK90) (67 FR 215) for eligible children of Vietnam veterans were also set forth in the January 2, 2002, issue of the Federal Register .

That legislation, section 401 of the Veterans Benefits and Health Care Improvement Act of 2000, Public Law 106-419, amended chapter 18 of title 38, United States Code, effective December 1, 2001, to authorize VA to provide certain benefits, including a monthly monetary allowance, for children with covered birth defects who are the natural children of women veterans who served in the Republic of Vietnam during the Vietnam era. We provided a thirty-day period for public comments, which ended on February 1, 2002. We received one comment, from an individual.

The commenter felt that the U.S. government is displaying a bias in favor of women veterans in this regulation and that the hidden effect of Agent Orange may also have remained dormant in men's systems and produced chromosomal disorders in their children. No changes are made based on this comment. Public Law 106-419, which was based on a comprehensive health study conducted by VA of 8,280 women Vietnam-era veterans (as discussed in the SUPPLEMENTARY INFORMATION section of the proposed rule), provides benefits specifically for women Vietnam veterans' children with certain birth defects. We have no legal authority to award the new benefits to children of male Vietnam veterans.

VA appreciates the comment submitted in response to the proposed rule. Based on the rationale set forth in the proposed rule and in this document, we are adopting the provisions of the proposed rule as a final rule without change, except for nonsubstantive changes for purposes of clarity.

Because this rule solely provides for new benefits and makes nonsubstantive changes, there is under 5 U.S.C. 553 no need for a 30-day delay of the effective date of this rule.

Benefits are payable retroactively in accordance with this rule to December 1, 2001, the effective date of the new benefit programs enacted by section 401 of Public Law 106-419.

This rule removes the approved information collection provisions contained in 38 CFR 3.814 as unnecessary or obsolete. This rule contains no provisions constituting new collections of information under the Paperwork Reduction Act.

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

The Secretary hereby certifies that these regulatory amendments will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The reason for this certification is that these amendments will not directly affect any small entities. Only individuals could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any given year. This rule will have no consequential effect on State, local, or tribal governments.

The Catalog of Federal Domestic Assistance program numbers for benefits affected by this rule are 64.104, 64.109, 64.127, and 64.128.

There are no Catalog of Federal Domestic Assistance program numbers for other benefits affected by this rule. 2

As part of a comprehensive review of the rating schedule, VA published a proposal to amend 38 CFR 4.118, which addresses disabilities of the skin, in the Federal Register of January 19, 1993 (58 FR 4969). Comments were received from the American Legion, Paralyzed Veterans of America, Veterans of Foreign Wars, Disabled American Veterans, and VA employees.

One commenter suggested that VA withdraw the proposed regulations and reissue them based on more objective standards, and also made specific suggestions for changes to many diagnostic codes.

We do not agree that the proposed regulations should be withdrawn.

We made the process of revision as open as possible. For example, prior to publication of the proposed amendment, we published an advance notice of proposed rulemaking in the Federal Register to receive public comments about the revision. We also contracted with an outside consultant, who convened a panel of non-VA physician specialists in skin diseases to make recommendations for revisions of this section of the rating schedule. We asked the Veterans Health Administration to review our proposed changes. We published the proposed revision only after reviewing all of these sources of information. We received several other comments on the proposed rule after it was published in the Federal Register , but none of the commenters suggested withdrawing the proposed revision. In response to comments, we have however, made further revisions to some of the criteria for the sake of clarity and more objectivity and have added definitions and explanatory notes under some conditions. These added changes are discussed in more detail below. The same commenter who suggested withdrawing the proposed revision also made specific suggestions for changes to many diagnostic codes. With the additional changes we have made in the final revision, we believe we have made the evaluation criteria for skin conditions reasonably clear and objective.

Under diagnostic code (DC) 7800, disfigurement of the head, face, or neck, the former rating schedule provided evaluation levels of 50, 30, 10, and zero percent based on whether there is repugnant deformity of one or both sides of the face, whether the disfigurement is “severe,” producing a marked and unsightly deformity of eyelids, lips, or auricles, and on whether the disfigurement is “moderate” or “slight.” Following these criteria was a note stating that each level could be increased to the next higher evaluation level on the basis of marked discoloration or color contrast and that the most repugnant, disfiguring conditions, including scars and diseases of the skin, could be submitted with photographs for central office rating. The proposed amendment added an 80-percent evaluation level and deleted the part of the note that provided authority to elevate evaluations in the presence of marked discoloration or color contrast based on the rationale that these criteria are subject to inconsistent interpretations. The proposed evaluation criteria were based at 80 percent on whether disfigurement is so disfiguring as to preclude occupational interaction with the public, at 50 percent on whether it is repugnant on casual inspection, at 30 percent on whether it is disagreeable on casual inspection, at 10 percent on whether it is noticeable on casual inspection, and at zero percent on whether it is noticeable, but only on close inspection.

One commenter felt that the deleted note should be retained. Another commenter, while offering no alternative language for us to consider, stated that the words “repugnant,” disagreeable,” and “noticeable,” used to describe degrees of disfigurement, are too subjective to be useful and are not based on medical criteria. In a similar vein, another commenter said that we should establish objective criteria for rating scars that should include evaluation of size, configuration, color, etc. One commenter felt that the difference between casual and close inspection, part of the criteria used to determine disfigurement, is a distinction that is difficult to understand.

In response to these comments, we have further revised the evaluation criteria for DC 7800 by basing them on the number of objective characteristics of disfigurement that are present and whether there is asymmetry or gross distortion of the features. We provided a new note following DC 7800 describing the eight specific characteristics of disfigurement, for purposes of evaluation under § 4.118: Scar 5 or more inches (13 or more cm.) in length; scar at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). For an 80-percent evaluation, there must be visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or six or more characteristics of disfigurement must be present. For a 50-percent evaluation, there must be visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or four or more characteristics of disfigurement must be present. For a 30-percent evaluation, there must be visible or palpable tissue loss and either gross distortion or asymmetry of one feature or set of paired features, or two or three characteristics of disfigurement must be present. For a 10-percent evaluation, one characteristic of disfigurement must be present. In our judgment, these further revised criteria are sufficiently clear and objective to assure that evaluations take into account the most significant characteristics of disfigurement and will be consistent from veteran to veteran. We have provided two additional notes under DC 7800, one directing the rater to rate tissue loss of the auricle under DC 6207 (loss of auricle) and anatomical loss of the eye under DC 6061 (anatomical loss of both eyes) or DC 6063 (anatomical loss of one eye), as appropriate; and the second directing the rater to take into consideration unretouched color photographs.

The former rating schedule designated DC 7801 as “scars, burns, third degree,” and DC 7802 as “scars, burns, second degree.” We proposed to revise these codes so that they additionally addressed scars from causes other than burns and so that the conditions would be evaluated based on actual residual disability, i.e., the size of the area of underlying soft tissue damage or limitation of motion, rather than on the initial assessment of the severity of a burn. We proposed to redesignate DC 7801 as “scars, other than head, face, or neck, with underlying soft tissue damage causing deep contour defect or limited motion” and DC 7802 as “scars, other than head, face, or neck, that are superficial and that do not cause limited motion.” We proposed that under DC 7801 scars with an area or areas exceeding 144 square inches (929 sq. cm.) receive a 40-percent evaluation; with area or areas exceeding 72 square inches (465 sq. cm.) a 30-percent evaluation; with area or areas exceeding 12 square inches (77 sq. cm.) a 20-percent evaluation; and with area or areas exceeding 6 square inches (39 sq. cm.) a 10-percent evaluation. We proposed that under DC 7802 scars with area or areas approximating 144 square inches (929 sq. cm.) receive a 10-percent evaluation. A commenter felt that historical precedent requires continuation of the wording “third degree” and “second degree” under DC's 7801 and 7802, formerly burn scars.

We disagree. One objective of the rating schedule revision is to incorporate medical advances and to delete obsolete concepts and conditions. Our consultants, a panel of non-VA physician specialists in skin diseases, as well as medical textbooks such as “Christopher's Textbook of Surgery” 140-41 (Loyal Davis, M.D., ed., 9th ed. 1968), indicate that the clinical estimation of the degree of a burn is not always accurate and does not necessarily relate to long-term disability. The severity of residual scarring from burns of all depths varies. Furthermore, burn scars that are not caused by thermal injury, but by chemical, electrical, or friction injury, as well as scars resulting from non-burn injuries that permanently alter the skin, can lead to comparable residuals. For these reasons, a determination of disability that is based on the extent of the scarring itself and its effects, rather than on the etiology of the scarring, is preferable because it will result in wider application of these criteria and afford consistency in the evaluation of comparable scarring, whatever the etiology. For more clarity and consistency of language, we have, however, modified the titles slightly, for better differentiation of superficial and deep scars, as discussed below.

We proposed that DC 7801 (formerly titled “scars, burns, third degree”) be retitled “scars, other than head, face, or neck, with underlying soft tissue damage causing deep contour defect or limited motion.” According to one commenter, the term “deep contour defect” is confusing. When there is soft tissue damage beneath the skin, in addition to scarring of the skin, the overlying scar shows a greater anatomical change in contour than when there is skin damage alone. The defect that appears in a scarred area when there is underlying soft tissue damage is known as a deep contour defect and could also be called a deep scar. The lesser change that results in a scarred area when there is skin damage alone, without soft tissue damage beneath the skin, is known as a superficial contour defect and could also be called a superficial scar. A superficial scar may have an irregular surface that is either raised or depressed, but the abnormal contour goes no deeper than the skin. To make the distinction between the scars to be evaluated under DC's 7801 and 7802 clearer, we have removed the term “deep contour defect” and have retitled DC 7801 “scars, other than head, face, or neck, that are deep or that cause limited motion” and retitled DC 7802 “scars, other than head, face, or neck, that are superficial and that do not cause limited motion.” We have also added a definition of deep scar, as one associated with underlying soft tissue damage, in a note under DC 7801 and of superficial scar, as one not associated with underlying soft tissue damage, in a note under DC 7802.

We proposed to retitle DC 7803 (formerly titled “scars, superficial, poorly nourished, with repeated ulceration”) “scars, superficial, unstable with frequent loss of epidermal covering.” One commenter felt that the meaning of “unstable” under DC 7803 is unclear, and wondered whether this means that the wound is infected or unhealed.

The term “unstable” in the title of DC 7803 does not imply a specific etiology but only indicates that there is frequent loss of covering of the skin over the scar. An unstable scar may result from a number of causes, including poor healing or infection. For further clarity, we have added a note under DC 7803 defining unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. We have also removed the term “with frequent loss of epidermal covering” from the title and repeated the definition of superficial scar under this code.

One commenter suggested that we not repeat identical criteria when several different conditions are evaluated using the same criteria.

While it is feasible to use general rating formulas when related conditions are listed consecutively, we have repeated criteria under a number of diagnostic codes in this section for several reasons. First, conditions evaluated under identical criteria in this section are not consecutive diagnostic codes. The repetition of criteria will save time by eliminating the need to seek the appropriate evaluation criteria, lessen the chance of error by eliminating the need to search other pages of the rating schedule, and eliminate the “double references” that are present under some diagnostic codes (where the schedule says to see a certain diagnostic code and there is a reference under that diagnostic code to see yet another diagnostic code). Additionally, while rating specialists may readily locate the appropriate rating criteria, others who use the schedule may find it more difficult. While eliminating the repetition of criteria would save space, we believe that the advantages gained favor their repetition in this case. Where a general rating formula applies to several diagnostic codes that are listed consecutively, the proximity of the conditions and the rating formula eliminates most of the potential problems discussed above.

In the former schedule, DC 7806 (dermatitis or eczema) was evaluated at levels of 50, 30, 10, or zero percent. The criteria called for a 50-percent evaluation for ulceration or extensive exfoliation or crusting, with systemic or nervous manifestations, or being exceptionally repugnant; a 30-percent evaluation for constant exudation or itching, with extensive lesions, or with marked disfigurement; a 10-percent evaluation for exfoliation, exudation or itching, if involving an exposed surface or extensive area; and a zero-percent evaluation for slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area. DC's 7809 (discoid lupus erythematosus), 7815 (bullous disorders), 7816 (psoriasis), and 7817 (exfoliative dermatitis) did not include specific evaluation criteria, but were ordinarily rated as analogous conditions, using the same criteria as for DC 7806. We proposed to evaluate all five of these conditions, plus four new conditions-cutaneous manifestations of collagen-vascular diseases not listed elsewhere (DC 7821), papulosquamous disorders not listed elsewhere (DC 7822), vitiligo (DC 7823), and diseases of keratinization (DC 7824)—under identical criteria, with evaluation levels of 100, 50, 30, 10, and zero percent. We proposed a 100-percent evaluation for generalized scaling, crusting, systemic manifestations, pruritus and for being so disfiguring as to preclude interaction with the public; a 50-percent evaluation for ulceration or extensive exfoliation or crusting, and systemic manifestations, or being so disfiguring as to be repugnant on casual inspection; a 30-percent evaluation for exudation or constant itching, or extensive lesions, or being so disfiguring as to be disagreeable on casual inspection; a 10-percent evaluation for exfoliation, exudation, or itching, if involving an exposed surface or extensive area; and a zero-percent evaluation for minimal exfoliation, exudation or itching, if on a nonexposed surface or small area. We proposed to evaluate a second group of skin disorders-disfigurement of the head, face, or neck (DC 7800), acne (DC 7828), chloracne (DC 7829), scarring alopecia (DC 7830), and alopecia areata (DC 7831)—solely on the basis of disfigurement, as described above under the discussion of DC 7800, and made 80 percent the maximum evaluation for this group based on disfigurement that precludes occupational interaction with the public. There were several comments regarding similarities between the proposed criteria for a 100-percent evaluation for the first group (DC 7806 and conditions rated under the same criteria) and the criterion for an 80-percent evaluation for the second group (DC 7800 and conditions rated under the same criteria).

One commenter objected to the fact that when interaction with the public is precluded, one group of skin conditions may be assigned an evaluation of 100 percent and another group may be assigned no more than 80 percent. Another commenter suggested that we add an intermediate evaluation level between 50 and 100 percent for the skin conditions for which we proposed evaluation levels of 100, 50, 30, 10, and zero percent. An evaluation of 60 percent or more for a single disability would allow a veteran to advance a claim under 38 CFR 4.16(a), which allows a claim for individual unemployability in cases where there is a service-connected disability rating that is less than total but which renders an individual unable to secure or follow a substantially gainful occupation.

In response to these comments, and because the more specific criteria we have provided for DC 7800 are not as readily applicable to other skin conditions as those we proposed, we have further revised the criteria for DC's 7806, 7809, 7815, 7816, 7817, 7821, 7822, 7823, and 7824. We have removed the proposed criteria, which were the same for all these conditions and have provided criteria that are more objective and more specific for each condition.

For dermatitis or eczema, DC 7806, instead of the proposed evaluation levels of 100, 50, 30, 10, and zero percent based on the presence of scaling, crusting, whether there are systemic manifestations, itching, exudation, exfoliation, etc., or, alternatively, on the extent of disfigurement, we have now provided evaluation levels of 60, 30, 10, and zero percent, as the commenter suggested. As part of the more condition-specific criteria we have provided, we have also removed the 100-percent evaluation level because dermatitis is rarely totally disabling. However, since a 60-percent evaluation level may now be assigned, a claim for individual unemployability, when appropriate, is feasible under 38 CFR 4.16 (a) for those individuals unable to secure or follow a substantially gainful occupation as a result of service-connected skin disease. The criteria are based on the extent (in percentage) to which the entire body or exposed areas are affected by the condition or on the treatment required. For a 60-percent evaluation for dermatitis, more than 40 percent of the entire body or more than 40 percent of exposed areas must be affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required. For a 30-percent evaluation, 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas must be affected, or systemic therapy for a total duration of six weeks or more, but not constantly, during the past 12-month period is required. For a 10-percent evaluation, at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas must be affected, or intermittent systemic therapy for a total duration of less than six weeks during the past 12-month period is required. For a zero-percent evaluation, less than 5 percent of the entire body or less than 5 percent of exposed areas must be affected, with no more than topical therapy required during the past 12-month period. We also added an alternative direction to rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. This will provide an alternative means of evaluation in cases, for example, where the active disease has been controlled but there are significant residuals, such as scarring. These criteria are much more objective than the proposed criteria and will assure more consistent evaluations.

We had proposed criteria identical to those for DC 7806 for DC's 7815 (Bullous disorders (including pemphigus vulgaris, pemphigus foliaceous, bullous pemphigoid, dermatitis herpetiformis, epidermolysis bullosa acquisita, benign chronic familial pemphigus (Hailey-Hailey), and porphyria cutanea tarda)); 7816 (Psoriasis); 7821 (Cutaneous manifestations of collagen-vascular diseases not listed elsewhere (including scleroderma, calcinosis cutis, and dermatomyositis)); and 7822 (Papulosquamous disorders not listed elsewhere (including lichen planus, large or small plaque parapsoriasis, pityriasis lichenoides et varioliformis acuta (PLEVA), lymphomatoid papulosus, and pityriasis rubra pilaris (PRP))). The further revised evaluation criteria we have provided for DC 7806 remain appropriate for those four conditions, and we have provided identical criteria under each diagnostic code.

We also proposed to provide evaluation criteria identical to those for DC 7806 for the evaluation of DC's 7809 (Discoid lupus erythematosus or subacute cutaneous lupus erythematosus), 7817 (Exfoliative dermatitis (erythroderma)), 7823 (Vitiligo), and 7824 (Diseases of keratinization). However, the proposed criteria were not specific enough to these conditions to assure consistent evaluations, and the revised criteria for DC 7806 are also not appropriate for their evaluation. We have therefore provided more disease-specific evaluation criteria for these conditions, and also revised the evaluation levels in order to make them appropriate for the usual range of severity of each individual condition. The evaluation criteria for each of these conditions is discussed in more detail below.

Discoid lupus erythematosus (DC 7809) can present in a number of different ways (scaling, plaques, atrophy, erythema, scars, etc.), and we have therefore directed that it be rated as disfigurement (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability.

Exfoliative dermatitis (DC 7817) is a disease that may be very severe, and its treatment is different from that of most other skin conditions. It may require the use of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy. It may also be associated with systemic manifestations, such as fever, weight loss, and hypoproteinemia (low level of protein in the blood, often associated with edema). We have provided evaluation levels of 100, 60, 30, 10, and zero percent for this condition, based on the extent of involvement of the skin, whether there are also systemic manifestations, and the type and duration of treatment. For a 100-percent evaluation, generalized involvement of the skin, plus systemic manifestations (such as fever, weight loss, and hypoproteinemia) must be present, and constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy during the past 12-month period is required. For a 60-percent evaluation, generalized involvement of the skin without systemic manifestations must be present, and constant or near-constant systemic therapy during the past 12-month period is required. For a 30-percent evaluation, there can be any extent of involvement of the skin, and systemic therapy for a total duration of six weeks or more, but not constantly, during the past 12-month period is required. For a 10-percent evaluation, there can be any extent of involvement of the skin, and systemic therapy for a total duration of less than six weeks during the past 12-month period is required. For a zero-percent evaluation, there can be any extent of involvement of the skin with no more than topical therapy required during the past 12-month period. These criteria are specific to this condition and are more objective than the proposed criteria.

We proposed to evaluate vitiligo (DC 7823) under the same evaluation criteria as those we proposed for DC 7806 (dermatitis or eczema). Vitiligo is a condition in which the only abnormal finding is hypopigmented skin; the only treatment for it is cosmetic. The proposed criteria, however, included findings such as ulceration, itching, crusting, exfoliation, and systemic manifestations, none of which is specific to, or even occurs in, vitiligo. It is unlikely that an evaluation higher than zero percent could have been assigned for vitiligo using those criteria. Disfigurement was another of the proposed criteria under DC 7806. Of the characteristics of disfigurement described under DC 7800, only one—hypopigmentation—is present in vitiligo, and that is its only disabling effect. For one characteristic of disfigurement of the head, face, or neck under DC 7800, a 10-percent evaluation is assigned. We have therefore provided evaluation levels for vitiligo of ten and zero percent, providing ten percent if exposed areas are affected, and zero percent if they are not. These criteria will assure consistent evaluations for vitiligo, and they are internally consistent with the evaluations for disfigurement of the head, face, or neck, where the maximum evaluation based on the presence of hypopigmentation alone is 10 percent.

We also proposed to evaluate DC 7824, diseases of keratinization (including icthyoses, Darier's disease, and palmoplantar keratoderma) under the same evaluation criteria as those we proposed for DC 7806 (dermatitis or eczema). The further revised criteria for DC 7806 are not entirely appropriate for evaluating diseases of keratinization. We have therefore provided evaluation levels of 60, 30, 10, and zero percent for diseases of keratinization, based on requirements for therapy, the extent of cutaneous involvement, whether there are systemic manifestations, and whether the skin involvement is constant or episodic. A 60-percent evaluation requires either generalized cutaneous involvement or systemic manifestations and constant or near-constant systemic medication, such as immunosuppressive retinoids, during the past 12-month period. A 30-percent evaluation requires either generalized cutaneous involvement or systemic manifestations and intermittent systemic medication, such as immunosuppressive retinoids, for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 10-percent evaluation requires localized or episodic cutaneous involvement and intermittent systemic medication, such as immunosuppressive retinoids, for a total duration of less than six weeks during the past 12-month period. A zero-percent evaluation is assigned if no more than topical therapy was required during the past 12-month period. These criteria are more appropriate for the evaluation of diseases of keratinization. In addition, we have added to the title some of the specific diseases that make up the category of diseases of keratinization-icthyoses, Darier's disease, and palmoplantar keratoderma.

Under the former schedule, leishmaniasis, both American (DC 7807) and Old World (DC 7808), were ordinarily evaluated under the same criteria as DC 7806 (eczema). We proposed to evaluate leishmaniasis as disfigurement, scars, or dermatitis, depending upon the predominant disability. One commenter suggested that we include evaluation criteria for systemic manifestations of the disease under these codes. In our judgment, there is no need to include criteria for the systemic forms of leishmaniasis here, because evaluation criteria for visceral leishmaniasis are provided under DC 6301, in the section of the rating schedule on infectious diseases, immune disorders and nutritional deficiencies (38 CFR 4.88b). However, as a reminder to rating specialists, we have added a note under each of these codes directing that non-cutaneous (visceral) leishmaniasis be evaluated under DC 6301 (visceral leishmaniasis).

In the former schedule and in the proposed rule, DC 7811 (tuberculosis luposa (lupus vulgaris), active or inactive) was directed to be rated under §§ 4.88b or 4.89. Section 4.88b was redesignated § 4.88c in a separate rulemaking, so we have corrected the reference under DC 7811 to codes to be used for the evaluation of tuberculosis of the skin to §§ 4.88c and 4.89.

Malignant neoplasms of the skin (DC 7818) were evaluated on scars, disfigurement, etc., on the extent of constitutional symptoms, and on physical impairment, in the former schedule. We proposed to evaluate based on impairment of function, disfigurement, or scars. One commenter stated that these criteria are inadequate for malignant melanoma because the condition is potentially lethal.

On further consideration, we have added a separate diagnostic code, 7833, to the rating schedule for malignant melanoma of the skin because it is a common malignancy and often behaves differently, particularly more aggressively, than other skin malignancies. All residuals that might occur from any skin malignancy can be evaluated under the proposed criteria for malignant neoplasms of the skin because “impairment of function” covers virtually any disability that might result, and we propose to provide the same evaluation criteria for malignant melanoma as for other skin malignancies. However, malignant melanoma, and at times other malignancies of the skin, may require a level of antineoplastic treatment that is similar to that used for internal malignancies. We have therefore added a note under DC's 7818 and 7833 stating that if a skin malignancy requires therapy that is comparable to that used for internal malignancies, i.e., systemic chemotherapy, X-ray therapy more extensive than to the skin, or surgery more extensive than wide local excision, a 100-percent evaluation will be assigned from the date of onset of treatment, and will continue, with a mandatory VA examination six months following the completion of such antineoplastic treatment, and any change in evaluation based upon that or any subsequent examination subject to the provisions of 38 CFR 3.105(e). Those provisions require a 60-day notice before VA reduces an evaluation and an additional 60-day notice before the reduced evaluation takes effect. The revision requires a current examination to assure that all residuals are documented, and also offers the veteran more contemporaneous notice of any proposed action and expands the veteran's opportunity to present evidence showing that the proposed action should not be taken. If there has been no local recurrence or metastasis, evaluation will then be made on residuals. This will assure that the evaluation of these neoplasms, when they require treatment that is comparable to the treatment of internal malignancies, is commensurate with that type of treatment and is consistent with the method of evaluating malignancies in other systems. If treatment is confined to the skin, the provisions for a 100-percent evaluation do not apply. Since we have provided a separate diagnostic code for malignant melanoma, we added to the title of malignant skin neoplasms (DC 7818) for clarity, “other than malignant melanoma.”

We proposed to add urticaria to the rating schedule as DC 7825, with evaluation levels of 40, 20, and zero percent. We proposed to call for a 40-percent evaluation if there is either a need for regular immunosuppressive therapy or the presence of uncontrollable episodes despite therapy; a 20-percent evaluation if there is a need for frequent immunosuppressive therapy; and a zero-percent evaluation if the condition is occasional or asymptomatic. We received two comments about these criteria. One commenter said that urticaria should be evaluated at 60 percent if it is uncontrollable despite any therapy, and at 50 percent if it requires frequent treatment. The other said that urticaria should be evaluated higher than 40 percent if it is uncontrolled by systemic immunosuppressive therapy and that we should replace the words “frequent,” “regular,” and “occasional” with more objective criteria.

We agree that a higher level of evaluation is warranted and have therefore added a 60-percent evaluation level for urticaria when there are at least four debilitating episodes during the past 12-month period despite continuous immunosuppressive therapy. In conjunction with this change, we made the next lower evaluation level 30 percent instead of 40 percent, and based it on debilitating episodes occurring at least four times during the past 12-month period but requiring only intermittent systemic immunosuppressive therapy for control, and made the level below that 10 percent instead of 20 percent, and based it on recurrent episodes occurring at least four times during the past 12-month period and that respond to treatment with antihistamines or sympathomimetics. These evaluation levels are consistent with the ranges for other skin diseases, and these criteria respond to the comments by providing a higher evaluation level for the most severe cases of urticaria, and by providing more objective criteria. The more objective criteria will assure more consistent evaluations.

We proposed to add primary cutaneous vasculitis as DC 7826, to be evaluated on the basis of disfigurement, scars, or urticaria, depending upon the predominant disability. Because the revised evaluation criteria for disfigurement (DC 7800) and urticaria (DC 7825) are more specific to those conditions than the proposed criteria were, they are less appropriate for the evaluation of primary cutaneous vasculitis, which is a chronic, but episodic, condition. We have therefore provided a separate set of more objective criteria with evaluation levels of 60, 30, and 10 percent for primary cutaneous vasculitis, based on the frequency of debilitating episodes and the type and frequency of treatment. A 60-percent evaluation calls for recurrent debilitating episodes occurring at least four times during the past 12-month period despite continuous immunosuppressive therapy; a 30-percent evaluation calls for recurrent debilitating episodes occurring at least four times during the past 12-month period and requiring intermittent systemic immunosuppressive therapy for control; and a ten-percent evaluation calls for recurrent episodes occurring one to three times during the past 12-month period and requiring intermittent systemic immunosuppressive therapy for control. These criteria are more specific to this condition and will result in more consistent evaluations. We have also provided an alternative direction to rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. These are consistent with the criteria recommended by our consultants.

Similarly, we proposed to add erythema multiforme (toxic epidermal necrolysis) as DC 7827, with evaluation based on disfigurement, scars, or urticaria, depending upon the predominant disability. Because the revised evaluation criteria for disfigurement (DC 7800) and urticaria (DC 7825) are more specific to those conditions than the proposed criteria were, they are less appropriate for the evaluation of erythema multiforme. We have therefore provided a separate set of more objective criteria for erythema multiforme, which is an episodic condition, with levels of 60, 30, and 10 percent, based on the frequency of debilitating episodes and the type and frequency of treatment. A 60-percent evaluation calls for recurrent debilitating episodes at least four times during the past 12-month period despite ongoing immunosuppressive therapy; a 30-percent evaluation calls for recurrent debilitating episodes at least four times during the past 12-month period despite ongoing immunosuppressive therapy; and a ten-percent evaluation calls for recurrent episodes that respond to treatment with antihistamines or sympathomimetics. We also provided an alternative direction to rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. These criteria are identical to the criteria for DC 7826, since both conditions are episodic and require similar treatment, and they are consistent with the criteria recommended by our consultants.

We proposed that acne (DC 7828) and chloracne (DC 7829), which have similar manifestations, be evaluated under the same criteria as DC 7800 (disfigurement of the head, face, or neck). One commenter suggested that acne on nonexposed areas may warrant a compensable evaluation if there are extensive painful cysts. The proposed criteria did not provide for a compensable evaluation for such manifestations.

We agree that acne involving nonexposed areas may be disabling, more because of the inflammatory aspects than the disfiguring aspects. We have therefore established evaluation criteria for acne and chloracne that are based on the extent of involvement by acne, its location, and whether it is deep or superficial. We have provided a 30-percent evaluation for deep acne (meaning deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck; a 10-percent evaluation for deep acne affecting less than 40 percent of the face and neck, or deep acne other than on the face and neck; and a zero-percent evaluation for superficial acne (comedones, papules, pustules, superficial cysts) of any extent. We have provided an alternative direction to rate acne and chloracne as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. This change will allow more leeway in assessing which type of disability best represents the findings in a particular case of acne or chloracne.

We proposed to evaluate scarring alopecia (DC 7830) and alopecia areata (DC 7831) on the basis of disfigurement. One commenter suggested that the criteria for DC's 7830 and 7831 take into account the ability or inability to improve appearance with a hairpiece or wig. We have reconsidered the criteria for these types of alopecia in view of our changed disfigurement criteria, which are not appropriate for these conditions, and have provided evaluation criteria based instead on the extent of involvement by alopecia. We have provided evaluation levels of 20, 10, and zero percent for scarring alopecia and ten and zero percent for alopecia areata. These levels are commensurate with the range of disability these conditions produce, according to our contract consultant specialists, who reviewed the rating schedule and made recommendations for changes to help fulfill the goals of revising and updating the medical criteria. For scarring alopecia, which usually follows injury, infection, burns, etc., and shows tissue loss and scarring, we have provided a 20-percent evaluation if the condition affects more than 40 percent of the scalp; a 10-percent evaluation if it affects 20 to 40 percent of the scalp; and a zero-percent evaluation if it affects less than 20 percent of the scalp. For alopecia areata, where scarring and atrophic changes are not present, we have provided a 10-percent evaluation for generalized involvement of the body, and a zero-percent evaluation if the condition is limited to the scalp and face. These criteria are clear and objective and will assure consistency in evaluation. They do not take into account the potential improvement of appearance with a hairpiece or wig, which would require a subjective assessment, but are based instead on the objectively determinable effects of the condition and are consistent with the recommendations of our consultants.

We edited the language of the note regarding under painful superficial scars (DC 7804) for clarity, and the notes under DC's 7801 and 7802 regarding scars in widely separated areas for the same reason, but these are not substantive changes.

For more clarity and objectivity, we have revised the language in DC 7802 from “area or areas approximating 144 square inches (929 sq. cm.)” to “area or areas of 144 square inches (929 sq. cm.) or greater.” We revised the title of DC 7813, Dermatophytosis, to include “(ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris)” to clarify what is included.

VA appreciates the comments submitted in response to the proposed rule, which is now adopted with the amendments noted above.

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This rule would have no consequential effect on State, local or tribal governments.

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

The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. The reason for this certification is that this amendment would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

This regulatory amendment has been reviewed by the Office of Management and Budget under the provisions of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993.

The Board of Veterans' Appeals (Board) is an administrative body that decides appeals from denials of claims for veterans' benefits. The Board's Rules of Practice (38 CFR part 20) contain VA's regulations relating to attorney-fee matters.

The issues of whether and how much an agent or attorney may charge for services provided in a case involving a claim for veterans' benefits have always been highly regulated by Congress. From 1864 until 1988, such fees were limited to $10.00. In 1988, Congress passed the “Veterans' Judicial Review Act” (VJRA), Pub. L. No. 100-687, Div. A, 102 Stat. 4105, which permitted agents and attorneys to charge a “reasonable fee” for services provided in a case when the following three conditions were met:

• The Board made its first final decision in the case;

• The Board's first final decision followed a “notice of disagreement” filed with VA on or after the enactment date of the VJRA, i.e., November 18, 1988; and

• The agent or attorney was retained with respect to such case within one year of the date of the Board s first final decision.

In § 603(b) of the “Veterans Education and Benefits Expansion Act of 2001”, Pub. L. No. 107-103, 115 Stat. 976, 999 (Dec. 27, 2001), Congress repealed the requirement that, in order for an agent or attorney to charge a fee for services provided in a case, the Board's first final decision must have followed a notice of disagreement filed on or after November 18, 1988. This document implements that change in VA's regulations.

This change does not affect the requirements that, in order for an agent or attorney to charge a fee for services provided in a case, (1) the Board must have made its first final decision in that case, and (2) the agent or attorney must have been retained with respect to such case within one year of the date of the Board's first final decision.

Because this rule merely implements a change in the statute, notice and public comment are unnecessary. 5 U.S.C. 553(b)(B). Accordingly, we are publishing this amendment as a final rule.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) requires that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This final rule would have no consequential effect on State, local, or tribal governments.

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

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This amendment will not directly affect any small entities. Only individuals could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

In this final rulemaking, EPA is responding to comments received regarding a direct final and proposed rule to reinstate the redesignation to attainment for the 1-hour ozone NAAQS for the Kentucky portion of the Cincinnati-Hamilton area.

On June 19, 2000, EPA issued a final rule determining that the Cincinnati-Hamilton area had attained the one-hour ozone NAAQS, and redesignating both the Ohio and Kentucky portions of the area to attainment. 65 FR 37879. A petition for review resulted in the U.S. Court of Appeals for the Sixth Circuit vacating EPA's action in redesignating the area to attainment, and remanding to EPA for further proceedings consistent with the Court's opinion.

On February 12, 2002, the EPA published a proposed rule (67 FR 6459) and a direct final rule (67 FR 6411) to reinstate the attainment redesignation of the Kentucky portion of the Cincinnati-Hamilton moderate 1-hour ozone nonattainment area (Cincinnati-Hamilton area), which comprises the Ohio Counties of Hamilton, Butler, Clermont, and Warren and the Kentucky Counties of Boone, Campbell, and Kenton. Further background is set forth in the direct final rulemaking. 67 FR 6411. The EPA withdrew the direct final rule on April 8, 2002 (67 FR 16646), because adverse comments were received. This final rule addresses the comments.

EPA received two sets of adverse comments, one submitted by David Baron on behalf of the Sierra Club, Brian Scott, Pasko, and Ron Colwell, and the other submitted by Hank Gaddy on behalf of the Cumberland, KY Chapter of the Sierra Club. A summary of the adverse comments and EPA's responses to them are provided below.

Comment 1: A commentor contends that section 107(d)(3)(E) of the Clean Air Act (the “Act”) unambiguously prohibits redesignation of any portion of a nonattainment area to attainment unless all of the requirements set forth in section 107(d)(3)(E) are met for the entire nonattainment area. Since the Court in Wall v. EPA, 265 F.3d 426 (6th Cir. 2001) determined that there was a deficiency in the Ohio Reasonably Available Control Technology (RACT) rules that must be remedied before EPA could find that Ohio met the requirements for redesignation, then this also prevents EPA from reinstating the redesignation of the Kentucky portion which the Court had upheld in all respects.

Response 1: The Wall Court did not vacate EPA's approval of the maintenance plan for either portion of the area. Therefore the maintenance plan for the entire area is approved. The Court also did not vacate EPA's determination of attainment for the entire area. Therefore the determination remains in effect. In addition, the area has continued to remain in attainment through July 31, 2002. Moreover, the Wall Court upheld EPA's action with respect to all aspects of the redesignation of the Kentucky portion of the Cincinnati area. For the reasons set forth more fully below, EPA believes that the Kentucky portion may be redesignated separately from the Ohio portion, and the deficiency in the Ohio RACT rule in no way prevents EPA from reinstating its redesignation of Kentucky, which the Court has validated in all respects. The Court's ruling on the Ohio RACT rules affects only the requirements relating to the Ohio State Implementation Plan (SIP), which are not relevant to whether Kentucky fulfilled all its requirements under the Clean Air Act regarding the area. 67 FR 6411-6413 (February 12, 2002) ( See also responses to Comments 2, 3, and 4.)

Comment 2: In section 182(j) of the Act, Congress provided for relief from certain Clean Air Act sanctions for a state in a multi-state ozone nonattainment area, where continued nonattainment is due to the failure of one or more other states in which other portions of the area are located to commit to implementation of required measures. Significantly, Congress did not provide for any sort of similar relief from the Act's redesignation requirements for a state within a multi-state ozone nonattainment area.

Response 2: The language of section 107(d)(3)(E) itself provides that a portion of a nonattainment area can be redesignated if the requirements for redesignation are met: “The Administrator may not promulgate a redesignation of a nonattainment area ( or portion thereof ) to attainment unless * * *” Similarly, section 107(d)(3)(D) provides: “The Governor of any State may, on the Governor's own motion, submit to the Administrator a revised designation of any area or portion thereof within the State * * *”

Other subparts of section 107(d)(3) also refer to redesignation of an area or portion thereof. See sections 107(d)(3)(A), (B), and (C).

Thus, the Act clearly contemplates the possibility of redesignating a portion of a nonattainment area. The remaining subparts must be read in the context of whether an area or a portion of an area is being redesignated. If it is a portion of a multi-state area that is being redesignated, then the word “area” as subsequently used in the subpart must refer to that portion of the multi-state area that is being redesignated. This interpretation is borne out by the express terms of the subparts of 107(d)(3)(E). ( See response to Comment 3 below.) In general, EPA issues simultaneous redesignations for joint portions of multistate ozone areas. In a few instances, however, where separate portions of a multistate area have been unable to successfully coordinate their redesignation efforts and one state has met all the requirements for redesignation, EPA has applied section 107(d)(3)(E) to implement Congressional intent to allow redesignation of a portion of the multi-state area where that portion meets the statutory requirements and where the entire area is attaining the standard.

In section 182(j), Congress similarly expressed its intent to allow EPA to treat portions of multi-state areas separately so as not to penalize one portion of a multi-state nonattainment area simply because the state controlling the other portion had not fully discharged its regulatory responsibilities. In that section, even where the entire area remains nonattainment, Congress provided for separate recognition and treatment for the state that had fulfilled its statutory obligations. Similarly, in section 107(d), Congress expressly provided that a portion of a multi-state nonattainment area that met the requirements for redesignation should not be penalized by a failure of a state controlling an adjoining portion. In section 107, Congress distinguished between the air quality in the region and the control regime, and clearly intended that, where air quality met the standard in the area, the state with authority over a portion of the area that has met all the remaining requirements should not be penalized by having to remain labeled nonattainment. Thus under appropriate circumstances, EPA has implemented this intent by allowing redesignation of a portion of a multi-state area.

Comment 3: EPA's approach would undermine Congressional intent to ensure that nonattainment areas would completely comply with the Act's requirements prior to redesignation, and to not allow an area to evade adoption of required controls, be redesignated, and fall back into nonattainment.

Response 3: EPA's approach does not undermine Congressional intent. In fact, redesignating the Kentucky portion of Cincinnati implements the intent of Congress as expressed in the redesignation provisions of the statute. First, the entire area is attaining the one-hour ozone standard, and EPA's attainment determination remains in effect, and has never been challenged. Second, the maintenance plans for the entire area were approved by EPA, reviewed by the Sixth Circuit, and upheld. The Ohio and Kentucky maintenance plans remain in place, and were never vacated. Third, Kentucky has met all of the requirements for redesignation. In its June 2000 rulemaking, EPA reviewed and approved the redesignation based on its findings that Kentucky met these requirements, and the Sixth Circuit has reviewed and upheld EPA's actions in their entirety with respect to the Kentucky portion of the area. Fourth, all aspects of the Ohio portion of the Cincinnati area were reviewed and upheld by the Sixth Circuit, with the sole exception of some RACT rules which the Court agreed were not necessary for attainment or maintenance. Commitments to adopt these rules are already included as contingency measures in the approved maintenance plan for Ohio. Finally, Ohio is in the process of revising its RACT rules so that it can resubmit its redesignation request in accordance with the Court's decision in the Wall case, so that it is likely that processing of the redesignation of the Ohio portion of the area will take place in close proximity to the reinstatement of the redesignation, for the Kentucky portion. EPA believes that this type of coordination will further insure that the redesignation efforts will be kept in balance in both portions of the area.

There is thus no legal impediment to redesignation and no environmental benefit in favor of holding the Kentucky portion of the area hostage. To force Kentucky to reconstruct and resubmit work already reviewed and upheld, and to compel EPA to reevaluate rulemakings that this Court has already reviewed and approved, would result in a waste of state, EPA, and judicial resources, and to defeat the intent of Congress. This Court has upheld the principle that where EPA has already approved state rulemakings as meeting Clean Air Act requirements, it need not re-do this work for purposes of finding that requirements are met for a redesignation action. See Calcagni memo 1 , which advises that “an EPA action on a redesignation request does not mean that earlier issues with regard to the SIP will be reopened”, and SPGA v. Browner, 144 F.3d 984, 989-90 (6th Cir. 1998), Wall v. EPA, 265 F.3d 426, 438 (6th Cir. 2001)

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

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

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

2. In person . The Agency has established an official record for this action under docket ID number OPP-2002-0155. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

This final rule revokes certain FFDCA tolerances for residues of the pesticides acephate, amitraz, carbaryl, chlorpyrifos, cryolite, disulfoton, ethalfluralin, ethion, ethoprop, fenthion, fluvalinate, methamidophos, metribuzin, oxamyl, phorate, phosalone, phosmet, pirimiphos-methyl, profenofos, propiconazole, tetrachlorvinphos, thiram, and tribufos in or on specified commodities listed in the regulatory text because the tolerances are no longer needed or because these pesticides are not registered under FIFRA for uses on those commodities within the United States. However, comments were received regarding a need for EPA to retain certain tolerances, including a comment that there was a need for EPA to retain certain methamidophos tolerances to cover residues in or on imported foods. EPA has historically expressed a concern that retention of tolerances that are not necessary to cover residues in or on legally treated foods has the potential to encourage misuse of pesticides within the United States. Thus, it is EPA's policy to issue a final rule revoking those tolerances for residues of pesticide chemicals for which there are no active registrations under FIFRA, unless any person commenting on the proposal demonstrates a need for the tolerance to cover residues in or on imported commodities or domestic commodities legally treated.

Today's final rule does not revoke those tolerances for which EPA received comments stating a need for the tolerance to be retained. Generally, EPA will proceed with the revocation of these tolerances on the grounds discussed above if, (1) prior to EPA's issuance of a section 408(f) order requesting additional data or issuance of a section 408(d) or (e) order revoking the tolerances on other grounds, commenters retract the comment identifying a need for the tolerance to be retained, (2) EPA independently verifies that the tolerance is no longer needed, or (3) the tolerance is not supported by data that demonstrate that the tolerance meets the requirements under FQPA.

In the Federal Register of April 15, 2002 (67 FR 18150) (FRL-6834-1), EPA issued a proposed rule to revoke the tolerances listed in this final rule. Also, the April 15, 2002 proposal provided a 60-day comment period in which public comment was invited for consideration and for support of tolerance retention under FFDCA standards.

In response to the document published in the Federal Register of April 15, 2002, EPA received comments on ethion, fenthion, methamidophos, pirimiphos-methyl, and profenofos, as follows:

1. Ethion —i. Comment by Private Citizen . A comment was received from a private citizen who inquired whether the ethion tolerances for cattle, fat; cattle, meat byproducts; cattle, meat (fat basis); citrus pulp, dehydrated; and citrus fruits, which were each proposed for revocation with an expiration date were also modified.

Agency Response . EPA is revoking the ethion tolerances for citrus, dried pulp and fruit, citrus in 40 CFR 180.173 with no further modification at this time. Additionally, EPA is taking no action on the ethion milk and cattle tolerances in 40 CFR 180.173 at this time.

EPA is revoking the tolerances for citrus, dried pulp and fruit, citrus in 40 CFR 180.173 with an expiration/revocation date of October 1, 2008. In the ethion RED, EPA recommended that the citrus tolerances should be revoked, but also be raised during the period before they expire (from 10.0 to 25.0 ppm for dehydrated pulp and from 2.0 to 5.0 ppm for citrus fruits) based on the available citrus field trial and processing data. However, while the citrus tolerances were proposed to be revoked and raised in the codification section of the April 15, 2002 rule (67 FR 18150), the preamble for ethion stated only that the tolerances were proposed to be revoked and did not mention raising these tolerances in the interim period. Therefore, in a future publication in the Federal Register , EPA will propose to raise the tolerances for citrus, dried pulp and fruit, citrus during the period before they expire to 25.0 and 5.0 ppm, respectively.

EPA is not taking action on the milk and cattle tolerances at this time in order to verify whether a cancellation order for one cattle ear tag product was completed. In addition, while the cattle tolerances were proposed to be revoked and lowered in the codification section of the April 15, 2002 rule (67 FR 18150), in the preamble for ethion, the rule had stated only that the tolerances were proposed to be revoked. Therefore, in a future publication in the Federal Register , EPA will propose to revoke and lower the cattle tolerances during the period before they expire on October 1, 2008 to 0.2 ppm and propose to revoke the milk tolerance on October 1, 2008.

ii. Comments from Cheminova, Inc., Florida Citrus Mutual (FCM) and Florida Fruit and Vegetable Association (FFVA) . Comments were received from Cheminova, FCM and FFVA who each requested that the revocation of the tolerance for ethion on citrus and animal products be set no earlier than October 1, 2008 to allow treated citrus fruit to travel through juice processing and channels of trade, as well as to allow animal commodities (from animals fed treated dehydrated citrus pulp) through channels of trade. Cheminova and FFVA noted that fruit in a citrus grove legally treated with ethion in December 2004 could remain on the tree and not be picked until May or June 2005. Cheminova and FCM noted that the bulk (90% to 95%) of Florida citrus products are made into processed juice products. Cheminova also noted that because so much of the citrus crop in Florida is grown for juice, citrus legally treated with ethion may remain in the channels of trade for several years. Both FCM and FFVA specifically stated that fruit processed for frozen concentrated orange juice could conceivably be stored for up to 24 months before being moved into the channels of trade and could take an additional 12 months before reaching the consumer.

Agency Response . EPA agrees that citrus and animal feed (citrus, dried pulp) with legal residues of ethion can take several years to clear channels of trade. With a last legal use date of December 31, 2004, the Agency agrees with the commenters that the expiration date of October 1, 2008 for the citrus and animal tolerances is reasonable. Therefore, EPA is revoking the tolerances in 40 CFR 180.173 for residues of ethion including its oxygen analog (S-[[diethoxyphosphinothioyl)thio]methyl] O,O-diethyl phosphorothioate) in or on goats, fat; goats, mbyp; goats, meat; hogs, fat; hogs, mbyp; hogs, meat; horses, fat; horses, mbyp; horses, meat; sheep, fat; sheep, mbyp; and sheep, meat with an expiration/revocation date of October 1, 2008.

In addition, EPA is revoking the tolerance for raisins and tea, dried in 180.173 with an effective date that is 90 days after publication of this final rule in the Federal Register . On January 14, 1998 (63 FR 2163)(FRL-5755-9), EPA consolidated certain food and feed additive tolerance regulations in 40 CFR parts 185 and 186 to part 180, including the raisins and tea, dried tolerances for ethion from 185.2750 into 180.173. On February 5, 1998 (63 FR 5907)(FRL-5743-9), the Agency proposed to revoke the tolerances for raisins and tea, dried in 40 CFR 180.173. The Agency did not receive any comment on the proposed revocation of these two tolerances. However, on October 26, 1998, EPA published a final rule in the Federal Register (63 FR 57067) (FRL-6035-6) which inadvertently did not remove the raisins and tea, dried tolerances from the table of entries found in 40 CFR 180.173. Now, EPA is finalizing that action.

2. Fenthion — Comment by Bayer Corporation . A comment was received from Bayer Corporation in which Bayer stated that it is not appropriate to revoke the fenthion milk and animal tolerances (fat, meat, and meat byproducts for cattle and hogs) in 40 CFR 180.214 with the proposed expiration date of April 1, 2003 because these tolerances are also necessary for use of fenthion drug products, insecticides for cattle use, one of which is a pour-on. Bayer stated that while it stopped manufacturing these animal drug products on September 28, 2000, one product can be used on livestock until it expires on September 28, 2004. Also, Bayer noted that treated commodities would take an additional 18 months to move through trade channels and requested an expiration date of April 1, 2006 as more appropriate.

Agency Response . To address Bayer's concern, the Agency is revoking the tolerances in 40 CFR 180.214 for residues of fenthion and its cholinesterase-inhibiting metabolites in or on cattle, fat; cattle, meat; and cattle (mbyp) with an expiration/revocation date of April 1, 2006 to allow sufficient time for treated commodities to pass through channels of trade. In a follow-up communication, Bayer stated that (1) no swine uses were associated with the two fenthion animal drug products and (2) the two fenthion animal drug products were for use on non-lactating dairy cattle. For these reasons, Bayer noted that there is no need to extend the milk or hog tolerances. Therefore, EPA is revoking the tolerances in 40 CFR 180.214 for hogs, fat; hogs, meat; hogs (mbyp); and milk with an expiration/revocation date of April 1, 2003, which allows sufficient time for treated commodities to pass through channels of trade.

Also, EPA is revising commodity terminology in 40 CFR 180.214 to conform to current Agency practice as follows: “cattle (mbyp)” to “cattle, meat byproducts;” “hogs, fat” to “hog, fat;” “hogs, meat” to “hog, meat;” and “hogs, mbyp” to “hog, meat byproducts.”

3. Methamidophos —i. Comment by Canadian Horticultural Council (CHC) . A comment was received from the CHC, who requested the retention of methamidophos (trade name Monitor) tolerances for broccoli, Brussels sprouts, cabbage, cauliflower, and lettuce to allow importation of those methamidophos-treated food commodities.

Agency Response . Because a comment was received which expressed a need for the retention of specific tolerances for import purposes, EPA will not revoke the tolerances in 40 CFR 180.315 for broccoli, Brussels sprouts, cabbage, cauliflower, and lettuce at this time. EPA will follow-up to see that data requirements are met. When the submitted data have been reviewed, EPA will re-evaluate these tolerances under FFDCA.

ii. Comment by Private Citizen . A comment was received from a private citizen who asked that the Agency comment on Brussels sprouts, cauliflower, and lettuce codified in 40 CFR 180.108 under acephate with regard to the metabolite methamidophos in light of the proposed revocations in 40 CFR 180.315 for those tolerances.

Agency Response . There are active registrations for acephate, which degrades to methamidophos residues, on Brussels sprouts, cauliflower, and lettuce head. These tolerances are codified at 40 CFR 180.108 for residues of methamidophos (O,S-dimethyl phosphoramidothioate) as no more than 0.5 ppm, 0.5 ppm, and 1.0 ppm, respectively. However, while there are no active registrations for use of methamidophos on Brussels sprouts, cauliflower, and lettuce, there are tolerances for those commodities codified at 40 CFR 180.315 for residues of methamidophos at 1.0 ppm. To achieve compatibility with CODEX (0.5 ppm for cauliflower and 1.0 ppm for lettuce head) and to remove duplicate tolerances, EPA proposed to revoke the cauliflower (1.0 ppm) and lettuce (1.0 ppm) tolerances for methamidophos in § 180.315. Methamidophos residues from the use of acephate on Brussels sprouts, cauliflower, and lettuce head would have remained covered under 40 CFR 180.108. In a future publication in the Federal Register , EPA will propose to revise the acephate tolerances in 40 CFR 180.108 by consolidating that portion concerning residues of methamidophos from acephate use to be recodified with other methamidophos tolerances under § 180.315.

EPA is revoking the tolerances in 40 CFR 180.315(a) for residues of methamidophos in or on beets, sugar, roots; and beets, sugar, tops. On July 2, 1997, EPA published a notice in the Federal Register (62 FR 35812) (FRL-5724-7) under section 6(f)(1) of FIFRA announcing its receipt of requests from the registrants to terminate the use of methamidophos on all crops except cotton and potatoes, and to cancel all methamidophos 24(c) food-use registrations not labeled for use on tomatoes only, and provided a period for public comment. On December 23, 1997 (62 FR 67071) (FRL-5764-2), EPA published a notice in which the Agency responded to comments received and approved those terminations and cancellations, effective December 31, 1997. The Agency determined that after December 31, 1997 only persons other than the registrants were allowed to sell and distribute existing stocks, which EPA believed to be relatively small. More than four years has passed, which the Agency believes to be sufficient time for exhaustion of those stocks and for treated commodities to have cleared channels of trade.

Because a petition submitted by the registrant to the Agency for use on peppers regarding a FIFRA section 24(c) registration is pending and because of the possibility that existing labels for section 24(c) registrations may not yet have been amended regarding deletion of cucumbers, eggplant, and melons, the Agency will not address cucumbers, eggplant, melons, and peppers at this time. However, EPA is revising commodity terminology in 40 CFR 180.315 to conform to current Agency practice as follows: “cottonseed” to “cotton, undelinted seed;” “cucumbers” to “cucumber;” “melons” to “melon;” “peppers” to “pepper;” “potatoes” to “potato” and “tomatoes” to “tomato.” EPA is also removing the “(N)” designation from the “cotton, undelinted seed” and “potato” entries to conform to current Agency administrative practice (“N” designation means negligible residues).

4. Pirimiphos-methyl — Comment by Schering-Plough Animal Health Corporation . A comment was received from Schering-Plough, who requested that the current pirimiphos-methyl tolerances for cattle be retained. Schering-Plough stated that the insecticide is currently used in ear tag products as part of an integrated pest management program to control horn flies and face flies on beef and non-lactating dairy cattle and calves. Also, Schering-Plough noted that a 1996 magnitude of residue study from dermal application for a pour-on product was submitted to EPA, but was returned pending completion of the organophosphate cumulative risk assessment process. In addition, Schering-Plough asked that the Agency provide a consistent and level playing field to all sponsors; i.e., EPA should not include one sponsor's proposed use for pre-treatment of grain storage bins (Product and Chemistry Chapter of June 1, 1998), while at the same time exclude or delay approval of another proposed use such as for a cattle-pour-on product in their assessment. Finally, Schering-Plough noted that EPA actions to revoke or lower cattle tolerances would be an inefficient use of resources because Schering-Plough expects to submit an application for registration of a pirimiphos-methyl pour-on product for cattle, including a completed dermal magnitude of residue study.

Agency Response . In the proposal of April 15, 2002, EPA concluded that the current tolerance on “cattle meat” was no longer needed because the Agency has a reasonable expectation that no detectable pirimiphos-methyl residues of concern would be found in cattle meat as a result of cattle exposure via existing uses of pirimiphos-methyl. (Results from ruminant and poultry feeding studies, and residue trials conducted on stored grains, indicated that residues in certain livestock commodities could be classified under 40 CFR 180.6(a)(3); i.e., there is no reasonable expectation of finite residues). Schering-Plough noted that the proposal to revoke the cattle meat tolerance was based on the Agency's review of livestock feeding studies, not from a magnitude of residue study from dermal application. Schering-Plough requested retention of the cattle meat tolerance and stated it would submit a registration application for a new use (pour-on product formulation) for cattle, including a dermal metabolism study for pirimiphos-methyl. EPA maintains that a cumulative risk assessment for all organophosphate active ingredients must be completed before the acceptance of new registrations can occur for pirimiphos-methyl. Whether dermal exposure results for pirimiphos-methyl would have the same metabolic pattern as oral dosing is not known. At this time, EPA will not take action on the tolerance for “cattle, meat” in 40 CFR 180.409. EPA will continue to deliberate the issue, but may finalize the revocation of the cattle meat tolerance in a future publication in the Federal Register .

Because the tolerances are no longer needed, EPA is revoking the tolerances in 40 CFR 180.409(a)(1) for combined residues of pirimiphos-methyl, O-[2-diethylamino-6-methyl-4- pyrimidinyl) O,O-dimethyl phosphorothioate, the metabolite O-[2-ethylamino-6-methyl- pyrimidin-4-yl) O,O-dimethyl phosphorothioate and, in free and conjugated form, the metabolites 2-diethylamino-6-methyl-pyrimidin-4-ol), 2-ethylamino-6-methyl-pyrimidin-4-ol, and 2-amino-6-methyl-pyrimidin-4-ol in or on eggs; goats, meat; hogs, meat; horses, meat; milk, fat (0.1 ppm (N) in whole milk; poultry, mbyp; poultry, meat; and sheep, meat.

According to the pirimiphos-methyl Interim Reregistration Eligibility Decision (IRED), residues in sorghum milling fractions are no longer included in Table 1, “Raw Agricultural and Processed Commodities and Livestock Feeds Derived From Field Crops,” of OPPTS 860.1000 (EPA 712-C-96-169, Residue Chemistry Test Guidelines, August 1996); i.e., sorghum milling fractions are no longer considered a significant feed item, and the tolerance is no longer needed. Therefore, EPA is revoking the tolerance in § 180.409(a)(2) for sorghum milling fractions (except flour). For reassessment counting purposes, the tolerance for sorghum milling fractions will count as two to reflect the two tolerances (in 40 CFR 185.4950 and 186.4950) that had existed on August 3, 1996, when FQPA was enacted.

EPA is removing the tolerances in § 180.409(a)(2) for corn milling fractions (except flour); and corn oil. In the IRED, the Agency concluded that based on processing studies pirimiphos-methyl residues did not concentrate in these processed commodities and therefore these tolerances are no longer needed. Because the use of pirimiphos-methyl on corn remains, any residues in or on these processed corn commodities will remain covered by the existing tolerance for corn. For reassessment counting purposes, the Agency will not count removal of the tolerances for corn oil and corn milling fractions (except flour) as reassessments in this final rule.

In addition, EPA is revising commodity terminology in 40 CFR 180.409 to conform to current Agency practice as follows: “cattle, mbyp” to “cattle, meat byproducts;” “goats, fat” to “goat, fat;” “goats, mbyp” to “goat, meat byproducts;” “hogs, fat” to “hog, fat;” “hogs, mbyp” to “hog, meat byproducts;” “horses, fat” to “horse, fat;” “horses, mbyp” to “horse, meat byproducts;” “sheep, mbyp” to “sheep, meat byproducts;” and “sorghum, grain” to “sorghum, grain, grain.” Also in § 180.409, EPA is revising “cattle, kidney and liver” to “cattle, kidney” and “cattle, liver;” “goats, kidney and liver” to “goat, kidney” and “goat, liver;” “hogs, kidney and liver” to “hog, kidney” and “hog, liver;” “horses, kidney and liver” to “horse, kidney” and “horse, liver;” and “sheep, kidney and liver” to “sheep, kidney” and “sheep, liver.”

5. Profenofos — Comment by Private Citizen . A comment was received from a private citizen who inquired whether the proposal of April 15, 2002 revised the tolerance expression in 40 CFR 180.404. The commenter noted that a change in tolerance expression to profenofos per se was recommended in the profenofos IRED of August, 2000 because profenofos is considered a residue of toxicological concern.

Agency Response . EPA did not propose to revise the tolerance expression in 40 CFR 180.404 at this time. The change in the tolerance expression as recommended in the IRED for profenofos will be proposed in the near future.

EPA is revoking the tolerances in 40 CFR 180.404 for hogs, fat; hogs, mbyp; and hogs, meat. The Agency concluded that there is no reasonable expectation of finite residues for hog commodities (meat, fat, and meat byproducts) for profenofos based on feeding studies and the tolerances are no longer needed according to 40 CFR 180.6(a)(3).

Also, EPA is revoking the tolerance in § 180.404 for cottonseed hulls because the tolerance is no longer needed. Based on a cottonseed processing study, EPA determined that the current and interim cottonseed tolerances are each adequate to cover cottonseed hulls.

No comments were received by the Agency concerning the following.

6. Acephate . EPA is revoking the tolerances in 40 CFR 180.108 for combined residues of acephate and its cholinesterase-inhibiting metabolite O,S-dimethylphosphura-midothioate in or on grass (pasture and range) and grass hay because no active registrations exist which cover those commodities. On April 17, 1998 (63 FR 19254)(FRL-5782-6), July 8, 1998 (63 FR 36897)(FRL-5797-1), July 22, 1998 (63 FR 39287)(FRL-5799-9), and January 27, 1999 (64 FR 4099)(FRL-6051-8), EPA had published notices in the Federal Register under section 6(f)(1) of FIFRA announcing its receipt of requests from registrants to cancel or amend certain product registrations and delete certain acephate uses, including the grass pasture and rangeland use for acephate. EPA approved the registrants' requests for voluntary cancellation of those specific product registrations and deletion of certain uses, including the use for grass (pasture and rangeland), and allowed a period of 18 months (in the 1998 notices) and 12 months (in the 1999 notice) for registrants to sell and distribute those specific existing stocks affected. The Agency believes that end users have had sufficient time (at least 18 months beyond the endpoint for sale and distribution by registrants) to exhaust those existing stocks and for treated commodities to have cleared the channels of trade.

7. Amitraz . Apple and horse commodity tolerances are currently codified in 40 CFR 180.287 at 0 ppm; i.e., no finite tolerance is established for apple and horse commodities for amitraz. Also, there is currently no registered use of amitraz on apples or horse commodities. Because the tolerances are no longer needed, the Agency is revoking the tolerances in 40 CFR 180.287 for residues of amitraz and its metabolites in or on apples; horses, fat; horses, mbyp; and horses, meat. The EPA believes that sufficient time has passed for the possibility of any stocks to have been exhausted and for the possibility of any treated commodities to have cleared channels of trade.

Also, there is a pending petition to establish tolerances for the dermal use of amitraz. Currently, there are six tolerances in 40 CFR 180.287 for goats, fat; goats, mbyp; goats, meat; sheep, fat; sheep, mbyp; and sheep, meat at 0 ppm. EPA has been able to identify no past or current registrations of amitraz for use on goat or sheep commodities. However, due to the pending petition, EPA is not taking final action on those six tolerances at this time. EPA believes that there is no risk of exposure to amitraz under these tolerances because the tolerance permits no detectable amount of the pesticide chemical to remain on the raw agricultural commodity when it is offered for shipment and therefore the tolerances present a reasonable certainty of no harm to human health. In accordance with FQPA, the Agency considers those six goat and sheep tolerances at 0 ppm to be reassessed.

In addition, the Agency is revising commodity terminology in 40 CFR 180.287 to conform to current Agency practice as follows: “beeswax” to “honeycomb.” On June 21, 2002 (67 FR 42391)(FRL-7180-1), EPA published a final rule in the Federal Register concerning tolerance nomenclature, which revised the terminology of certain commodity terms listed under 40 CFR part 180, subpart C in order to establish a uniform listing, including the entry for “hop, dried cone” to “hop, dried cones.”

8. Carbaryl . In the U.S., there are no current uses of the insecticide carbaryl in or on cotton, forage; barley; oats; or rye. The Agency approved the registrant's requests for voluntary amendment of various carbaryl product labels to delete use on oats and rye in 1996, barley in 1997, and cotton forage in 1999. Therefore, EPA is revoking the tolerances in 40 CFR 180.169 for residues of carbaryl, including its hydrolysis product 1-naphthol, calculated as 1-naphthyl N-methylcarbamate in or on barley, grain; barley, green fodder; barley, straw; cotton, forage; oat, fodder, green; oat, grain; oat, straw; rye, fodder, green; rye, grain; and rye, straw. The Agency believes that sufficient time has passed for stocks to have been exhausted and for treated commodities to have cleared channels of trade.

9. Chlorpyrifos . Because beans, lima, forage; beans, snap, forage; sorghum milling fractions (sorghum flour is used exclusively in the U.S. as a component for drywall, not as either a human or animal feed item); bean, forage; and pea forage; are no longer considered to be significant feed items, the tolerances are no longer needed. Therefore, EPA is revoking the tolerances in 40 CFR 180.342(a)(1) for beans, lima, forage; beans, snap, forage; and sorghum milling fractions and in § 180.342(a)(2) for bean, forage and pea forage.

Because there are currently no current registered uses for combined residues of chlorpyrifos and its metabolite 3,5,6-trichloro-2-pyridinol on dates, mushrooms, and seed and pod vegetables; and for residues of chlorpyrifos on caneberries and sugarcane, EPA is revoking the tolerances for mushrooms and seed and pod vegetables in 40 CFR 180.342(a)(1), caneberries and sugarcane in § 180.342(a)(2), and dates in § 180.342(c)(1). EPA believes that sufficient time has passed for stocks to have been exhausted and for treated commodities to have cleared channels of trade.

In addition, the Agency is revising commodity terminology to conform to current Agency practice as follows: In 40 CFR 180.342(a)(1) “beans, snap” to “bean, snap, succulent;” in 40 CFR 180.342(a)(2) “sweet potato” to “sweet potato, roots;” and in 40 CFR 180.342(c)(1) “grapes” to “grape” and “leeks” to “leek.”

On June 21, 2002 (67 FR 42391)(FRL-7180-1), EPA published a final rule in the Federal Register concerning tolerance nomenclature, which revised the terminology of certain commodity terms listed under 40 CFR part 180, subpart C in order to establish a uniform listing, including the entries for “sorghum, fodder” to “sorghum, grain, stover”; and “sorghum, grain” to “sorghum, grain, grain.”

10. Cryolite . EPA is revoking tolerances in 40 CFR 180.145 for residues of fluorine compounds cryolite and synthetic cryolite (sodium aluminum fluoride) in or on beets, roots; radish, roots; rutabaga, roots; and turnip, roots. The registrant(s) of cryolite requested voluntary cancellation for use on beets, radishes, rutabagas, and turnips. Rutabagas were removed from cryolite labels prior to 1988. Beets were removed from cryolite labels in 1988. On September 25, 1996 a FIFRA section 6(f)(1) notice of receipt of a request to voluntarily delete radish and turnip uses from cryolite registrations was published in the Federal Register (61 FR 50294) (FRL-5394-2), with a use deletion date of December 24, 1996. EPA believes that sufficient time has passed for stocks to have been exhausted and for treated commodities to have cleared channels of trade.

11. Disulfoton . On June 4, 1997, EPA published a notice in the Federal Register (62 FR 30578) (FRL-5715-8) under section 6(f)(1) of FIFRA announcing its receipt of requests for amendments to delete disulfoton uses for pineapples, rice, and sugar beets. EPA approved the request, effective December 1, 1997, and allowed the registrants to sell or distribute products under the previously approved labeling for 18 months (June 1, 1999). More than two and one-half years has passed, which the Agency believes to be sufficient time for exhaustion of those stocks and for treated commodities to have cleared channels of trade. Because no active registrations exist for use of disulfoton in or on those commodities, the EPA is revoking the tolerances in 40 CFR 180.183(a)(1) for residues of disulfoton and its cholinesterase-inhibiting metabolites in or on beets, sugar, roots; beets, sugar, tops; pineapples; rice; and rice, straw; and the tolerances in § 180.183(a)(2) for residues of disulfoton, calculated as demeton, in dehydrated sugar beet pulp and in pineapple bran.

The commodity “bean, vines” is no longer considered to be a significant animal feed item and the tolerance is no longer needed. Therefore, EPA is revoking the tolerance for bean, vines in 40 CFR 180.183.

On February 7, 2001, EPA published a notice in the Federal Register (66 FR 9317)(FRL-6765-9) under section 6(f)(1) of FIFRA announcing its receipt of requests for amendments to delete disulfoton uses for corn, oats, and pecans. EPA approved the request, effective March 9, 2001, and allowed the registrants to sell or distribute product under the previously approved labeling for 18 months (ending September 9, 2002). EPA believes that those stocks should be exhausted within 12 months of that date (September 9, 2003). Because no active registrations exist for the use of disulfoton in or on those commodities, EPA is revoking the tolerances in 40 CFR 180.183(a)(1) for the combined residues of disulfoton and its cholinesterase-inhibiting metabolites, calculated as demeton, in or on corn, field, fodder; corn, field, forage; corn, grain; corn, pop; corn, pop, fodder; corn, pop, forage; corn, sweet, fodder; corn, sweet, forage; corn, sweet, grain (K+CWHR); oats, fodder, green; oats, grain; oats, straw; and pecans with an expiration, revocation date of December 9, 2003. The Agency believes that this revocation date permits users to exhaust stocks and allows sufficient time for passage of treated commodities through the channels of trade.

In addition, EPA is revising commodity terminology in 40 CFR 180.183(a) to conform to current Agency practice as follows: “beans, dry” to “bean, dry, seed;” “beans, lima” to “bean, lima;” “coffee beans” to “coffee, bean;” “corn, field, fodder” to “corn, field, stover;” “corn, pop, fodder” to “corn, pop, stover;” “corn, sweet, fodder” to “corn, sweet, stover;” “cottonseed” to “cotton, undelinted seed;” “hops” to “hop, dried cones;” “oats, grain” to “oat, grain;” “oats, straw” to “oat, straw;” “peas” to “pea;” “peas, vines” to “pea, field, vines;” “pecans” to “pecan;” “peppers” to “pepper;” “potatoes” to “potato;” “sorghum, fodder” to “sorghum, grain, stover;” “soybeans, forage” to “soybean, forage;” “soybeans, hay” to “soybean, hay;” “tomatoes” to “tomato;” and “wheat, fodder, green” to ”wheat, hay.“ Also in 180.183, EPA is revising ”corn, grain” to “corn, field, grain;” “corn, pop” to “corn, pop, grain;” “corn, sweet, grain (K+CWHR)” to “corn, sweet, kernel plus cob with husks removed;” “oats, fodder, green“ to “oat, hay;” and “sugarcane” to “sugarcane, cane.”

On June 21, 2002 (67 FR 42391)(FRL-7180-1), EPA published a final rule in the Federal Register concerning tolerance nomenclature, which revised the terminology of certain commodity terms listed under 40 CFR part 180, subpart C in order to establish a uniform listing, including the entries for “peanuts” to “peanut;” “sorghum, grain” to “sorghum, grain, grain;” and “soybeans” to “soybean.”

12. Ethalfluralin . When EPA establishes tolerances for residues in or on raw agricultural commodities, consideration must be given to the possible residues of those pesticides in meat, milk, poultry, and/or eggs produced by animals that are fed agricultural products (for example, grain or hay) containing pesticide residues (40 CFR 180.6). When considering this possibility, the EPA can conclude that (1) finite residues will exist in meat, milk, poultry, and/or eggs; (2) there is a reasonable expectation that finite residues will exist; or (3) there is a reasonable expectation that finite residues will not exist. In 1994, the ethalfluralin RED recommended revocation for egg, milk, fat, meat, and meat byproduct tolerances based on animal metabolism data (submitted since the time that the tolerances were originally established) from which EPA concluded that there is no reasonable expectation of finite residues for meat, fat, and meat byproduct commodities and the associated tolerances are not required according to 40 CFR 180.6(a)(3). Those feeding studies used exaggerated amounts of the pesticide and did not show measurable residues in animal tissues. Therefore, the Agency is revoking the tolerances in 40 CFR 180.416 for residues of ethalfluralin in or on goats, fat; goats, meat; and goats, mbyp.

13. Ethoprop . EPA is revoking the tolerance for okra in 40 CFR 180.262(c). There is currently no registered use of ethoprop on okra. EPA has not been able to identify a past registration of ethoprop for use on okra since an regional tolerance was established in 1987 and believes that the use was canceled years ago. Therefore, the Agency believes that sufficient time has passed for stocks to have been exhausted and for treated commodities to have cleared channels of trade.

14. Fluvalinate . With the exception of honey, which is linked to the active registration for use in/on beehives, there are no active food-use registrations for the insecticide fluvalinate. The use of fluvalinate on cotton was voluntarily canceled in 1991. Cotton had been the only animal feed use for fluvalinate; therefore, the animal commodity tolerances are no longer needed. EPA believes that sufficient time has passed for exhaustion of those stocks and for treated commodities to have cleared channels of trade. Therefore, EPA is revoking the tolerances in 40 CFR 180.427(a) for residues of fluvalinate in or on cattle, fat; cattle, mbyp; cattle, meat; cottonseed; cottonseed hulls; cottonseed oil (crude and refined); eggs; goat, fat; goat, mbyp; goat, meat; hogs, fat; hogs, mbyp; hogs, meat; horses, fat; horses, mbyp; horses, meat; milk; poultry, fat; poultry, mbyp; poultry, meat; sheep, fat; sheep, mbyp; and sheep, meat.

Also, a tolerance for coffee was established in 1989 based on a FIFRA section 24(c) registration and use of fluvalinate on coffee was restricted to Hawaii. In May 1990, the registration was canceled. Therefore, the Agency is revoking the tolerance in 40 CFR 180.427(c) for residues of fluvalinate in or on coffee.

15. Metribuzin . The Agency is revoking the tolerance in 40 CFR 180.332 for residues of metribuzin and its triazinone metabolites in or on potato waste, processed (dried). Because potato waste, processed (dried) is no longer considered a significant feed item, the tolerance is no longer needed. The EPA had issued a RED for metribuzin, approved on May 20, 1997, but the potato waste, processed (dried) tolerance was since identified not to be a significant feed item.

16. Oxamyl . Because peanut, forage; pineapples, forage; and soybean straw commodities are no longer considered to be significant feed items, the associated tolerances are no longer needed. Therefore, EPA is revoking the tolerances in 40 CFR 180.303 for the sum of the residues of the insecticide oxamyl (methylN-N-dimethyl-N-[(methylcarbamoyl)-oxy]-1-thiooxamimidate) and its oxime metabolite N,N-dimethyl-N-hydroxy-1-thiooxamimidate calculated as oxamyl in or on peanut, forage; pineapple, forage; and soybean straw.

17. Phorate . Because these commodities are no longer considered significant livestock feed items and therefore the associated tolerances are no longer needed, EPA is revoking the tolerances in 40 CFR 180.206 for combined residues of phorate and its cholinesterase-inhibiting metabolites in or on bean, vines and peanut, vines.

Because current product labels do not allow feeding livestock with peanut hay treated with phorate, the tolerance is no longer needed. Therefore, the Agency is revoking the tolerance in 40 CFR 180.206 for peanuts, hay. In addition, sufficient sugar beet processing data are available that indicate phorate residues of concern do not concentrate in dried sugar beet pulp. Therefore, that tolerance is no longer needed and EPA is revoking the tolerance in 40 CFR 180.206 for beet, sugar, dried pulp.

18. Phosalone . EPA is revoking the tolerance in 40 CFR 180.263 for residues of phosalone in or on almond, hulls because that tolerance is no longer needed. In 1986, 1987, and 1991, registrations for phosalone use on almonds were canceled. There are no U.S. registrations. While a tolerance for almonds exists for importation purposes only, the tolerance for “almond, hulls” is not needed for import purposes. Almond hulls are a livestock feed item and are not imported, nor do countries with registered uses for phosalone on almonds export significant quantities of livestock commodities to the U.S.

19. Phosmet . EPA is revoking the tolerances in 40 CFR 180.261 for the sum of the residues for N-(mercaptomethyl) phthalimide S-(O,O-dimethyl phosphorodithioate) and its oxygen analog N-(mercaptomethyl) phthalimide S-(O,O-dimethyl phosphorothioate) in or on corn, fresh (inc. sweet K+CWHR); corn, fodder; corn, forage; and corn, grain because no active registrations exist which cover those commodities. Previously, on April 17, 1996 (61 FR 16779)(FRL-5360-5), EPA had published a notice in the Federal Register under section 6(f)(1) of FIFRA announcing its receipt of requests from the registrant to delete certain product label uses, including the corn use for phosmet. EPA approved the registrant's request for an amendment to delete the corn use from its label effective July 16, 1996, and allowed the registrant to sell and distribute affected existing stocks for 18 months; i.e., until January 16, 1998. EPA believes that end users have now had sufficient time (more than 4 years) to exhaust those stocks and for treated commodities to have cleared channels of trade.

20. Propiconazole . EPA is revoking the tolerance in 40 CFR 180.434 for grass, seed screenings because that commodity is no longer considered a significant feed item and therefore the tolerance is no longer needed. Also, because a tolerance for stonefruit group at 1.0 ppm already exists for the combined residues of propiconazole and its metabolites determined as 2,4-dichlorobenzoic acid (expressed as parent compound) in 40 CFR 180.434, the EPA believes that each of the individual tolerances in § 180.434 at 1.0 ppm for apricots, nectarines, peaches, plums, and prunes, fresh are unnecessary duplicates and therefore is removing them. The use of propiconazole on those commodities will be covered by the remaining group tolerance. For reassessment counting purposes, the Agency will not count removal of those fruit tolerances as reassessments because the use will remain covered by the existing “stonefruit group” tolerance. In addition, the EPA is revising the commodity terminology for in 40 CFR 180.434 to conform to current Agency practice as follows: “grass, hay (straw)” to “grass, hay” and “grass, straw;”.

21. Tetrachlorvinphos . EPA is revoking tolerances in 40 CFR 180.252(a) for residues of tetrachlorvinphos in or on alfalfa and sheep, fat. All registered uses of tetrachlorvinphos on food or feed plant commodities, including alfalfa, were canceled in 1987. In June 1995, EPA had issued a RED for tetrachlorvinphos which recommended revoking the tolerances for “alfalfa” and “sheep, fat” because there were no registered uses associated with those commodities. On August 27, 1997 (62 FR 45416) (FRL-5737-4), the EPA published the registrant's request for voluntary cancellation for the remaining tetrachlorvinphos product that could have had the sheep use. EPA believes that end users have now had sufficient time to exhaust those stocks and for treated commodities to have cleared channels of trade.

22. Thiram . EPA is revoking the tolerances in 40 CFR 180.132 for celery, onions (dry bulb), tomatoes, and “bananas (from preharvest and postharvest application) of which not more than 1 part per million shall be in the pulp after peel is removed and discarded.” On November 6, 1996, the EPA published a notice in the Federal Register (61 FR 57419)(FRL-5570-5) under section 6(f)(1) of FIFRA announcing its receipt of requests for amendments to delete certain uses, including bananas, celery, onions (dry bulb), and tomatoes from the thiram technical label, effective February 4, 1997. The Agency allowed a period of 18 months for the registrant to sell or distribute product under previously approved labeling. The Agency believes that end users have had sufficient time to exhaust product under the previously approved labeling and for treated commodities to have cleared channels of trade. For tolerance reassessment counting purposes, the EPA will count bananas as 2 tolerances (banana, with peel, pre- and post-harvest at 7.0 ppm and banana, pulp at 1.0 ppm). In addition, the EPA is revising commodity terminology in 40 CFR 180.132 to conform to current Agency practice as follows: “apples” to “apple,” “peaches” to “peach,” and “strawberries” to “strawberry.”

23. Tribufos . EPA is revoking the tolerance in 40 CFR 180.272 for residues of tribufos (S,S,S-tributyl phosphorotrithioate) in or on cottonseed hulls because the tolerance is no longer needed, based on a cottonseed processing study, which showed that while residues of tribufos in cottonseed had been present, no concentration of tribufos residues occurred during normal processing procedures in cottonseed meal, hulls, crude and refined oils.

It is EPA's general practice to propose revocation of tolerances for residues of pesticide active ingredients on crop uses for which FIFRA registrations no longer exist. EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Nonetheless, EPA will establish and maintain tolerances even when corresponding domestic uses are canceled if the tolerances, which EPA refers to as “import tolerances,” are necessary to allow importation into the United States of food containing such pesticide residues. However, where there are no imported commodities that require these import tolerances, the Agency believes it is appropriate to revoke tolerances for unregistered pesticides in order to prevent potential misuse.

EPA is revoking certain tolerances for disulfoton with an expiration/revocation date of December 9, 2003. The Agency is revoking most ethion tolerances with an expiration/revocation date of October 1, 2008. The Agency is also revoking fenthion tolerances for cattle with an expiration/revocation date of April 1, 2006 and fenthion tolerances for hogs and milk with an expiration/revocation date of April 1, 2003.

However, other actions (including any commodity terminology revisions concerning tolerances for disulfoton, ethion, or fenthion, as well as revocations and commodity terminology revisions concerning tolerances for other pesticides mentioned in this final rule) become effective 90 days following publication of this final rule in the Federal Register . EPA has delayed the effectiveness of these revocations for 90 days following publication of this final rule to ensure that all affected parties receive notice of EPA's actions. Consequently, for these other actions, the effective date is October 29, 2002. For this final rule, tolerances that were revoked because registered uses did not exist concern uses which have been canceled for many years. Therefore, commodities containing these pesticide residues should have cleared the channels of trade.

Any commodities listed in the regulatory text of this document that are treated with the pesticides subject to this final rule, and that are in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(1)(5), as established by the FQPA. Under this section, any residue of these pesticides in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of FDA that, (1) the residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA, and (2) the residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from a tolerance. Evidence to show that food was lawfully treated may include records that verify the dates that the pesticide was applied to such food.

By law, EPA is required by August 2002 to reassess 66% or about 6,400 of the tolerances in existence on August 2, 1996. EPA is also required to assess the remaining tolerances by August, 2006. As of July 17, 2002, EPA has reassessed over 5,680 tolerances. This final rule revokes 140 tolerances, four of which were previously counted as reassessed for cryolite during a registration decision action on December 5, 1997 (62 FR 64294) (FRL-5756-5), three of which were previously counted as reassessed for ethalfluralin during a registration decision action on January 17, 2002 (67 FR 2333) (FRL-6818-6), one of which was previously reassessed in the metribuzin RED of 1997, and two tolerances were previously counted as reassessed for disulfoton in a notice published on May 22, 2002 (67 FR 35991)(FRL-7178-9). Of the 140 tolerance revocations, 130 tolerances are considered reassessed in this final rule. Additionally, EPA considered six goat and sheep tolerances at 0 ppm for amitraz to be reassessed. Therefore, a total of 136 tolerance reassessments count toward the August, 2002 review deadline of FFDCA section 408(q), as amended by FQPA in 1996. However, the Agency does not consider the removal of 5 propiconazole and 2 pirimiphos-methyl tolerances as reassessments and they are not counted as such in this final rule.

EPA is working to ensure that the U.S. tolerance reassessment program under FQPA does not disrupt international trade. EPA considers Codex Maximum Residue Limits (MRLs) in setting U.S. tolerances and in reassessing them. MRLs are established by the Codex Committee on Pesticide Residues, a committee within the Codex Alimentarius Commission, an international organization formed to promote the coordination of international food standards. When possible, EPA seeks to harmonize U.S. tolerances with Codex MRLs. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain in a Federal Register document the reasons for departing from the Codex level. EPA's effort to harmonize with Codex MRLs is summarized in the tolerance reassessment section of individual REDs. The U.S. EPA has developed guidance concerning submissions for import tolerance support (65 FR 35069, June 1, 2000) (FRL-6559-3). This guidance will be made available to interested persons. Electronic copies are available on the internet at http://www.epa.gov/. On the Home Page select “Laws and Regulations,” then select “Regulations and Proposed Rules” and then look up the entry for this document under “ Federal Register —Environmental Documents.” You can also go directly to the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2002-0155 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 30, 2002.

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

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit IV.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket ID number OPP-2002-0155, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule will revoke tolerances established under FFDCA section 408. The Office of Management and Budget (OMB) has exempted this type of action (i.e., a tolerance revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866 due to its lack of significance, this final rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency previously assessed whether revocations of tolerances might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. This analysis was published on December 17, 1997 (62 FR 66020), and was provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticides listed in this rule, I certify that this action will not have a significant economic impact on a substantial number of small entities. Specifically, as per the 1997 notice, EPA has reviewed its available data on imports and foreign pesticide usage and concludes that there is a reasonable international supply of food not treated with canceled pesticides. Furthermore, the Agency knows of no extraordinary circumstances that exist as to the present revocations that would change EPA's previous analysis.

In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

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

On February 28, 2002 (67 FR 9225), EPA published a proposed rule announcing the availability for public comment of Michigan's application for revisions to its authorized hazardous waste management program. EPA also announced that it had reviewed the application and determined that these revisions satisfy all requirements needed to qualify for final authorization. EPA received written comments from two commenters during the public comment period. The significant issues raised by the commenters and EPA's responses are summarized below.

Comment #1: The Michigan Department of Environmental Quality (MDEQ) submitted a comment objecting to EPA's determination that Michigan is not authorized to carry out its hazardous waste program in Indian country within the state, as defined in 18 U.S.C. 1151. MDEQ notes that the original application for the RCRA base program included a statement from Michigan's Office of Attorney General that the Michigan “does not, at this time, seek any federal authorization over “Indian lands” within Michigan.” MDEQ does not agree that the term “Indian country” means the same as “Indian lands.” It interprets the term “Indian lands” to mean either land held in trust by the federal government for the benefit of a federally recognized Indian tribe or Indian-owned lands within Indian reservations.

Response: EPA disagrees with the interpretation that there is a difference between the terms “Indian lands” and “Indian country” for purposes of implementing EPA programs. In the context of RCRA, EPA's interpretation that the two terms are synonymous has been specifically approved by the Ninth Circuit Court of Appeals in Washington Dep't of Ecology v. U.S. EPA , 752 F.2d 1465, 1467, n.1 (9 th Cir.1985). The Court stated:

Outside of the environmental context, the term “Indian lands” has frequently been used to refer to more than lands held in trust or Indian-owned land. For example, Congress has defined “Indian lands” to include “Indian country” in the Indian Tribal Regulatory Reform and Business Development Act of 2000 (25 U.S.C. 4302(4)) and in the Indian Tribal Justice Technical and Legal Assistance Act of 2000 (25 U.S.C. 3653(2), and it defined “Indian lands” to include all lands within the limits of any Indian reservation in the Indian Gaming Regulatory Act (25 U.S.C. 2703(4). Other agencies have adopted similar definitions of the term Indian lands. See 30 CFR 700.5 (adopted by the Department of Interior under the Surface Mining Control and Reclamation Act, “Indian lands” includes all lands within the exterior boundaries of any federal Indian Reservation) and 25 CFR 502.12 (adopted by the Indian Gaming Commission under the Indian Gaming Regulatory Act, “Indian lands” include “land within the limits of an Indian Reservation”).

Comment #2: MDEQ also stated that EPA, relying upon its position on “Indian lands,” has asserted that the state lacks implementing authority over non-Indian facilities on non-Indian lands. In some cases, these assertions have even encompassed facilities over which the EPA has explicitly delegated authority to the state.

Response: EPA takes the position that an EPA-approved state program does not apply in Indian country (including any non-Indian facilities in Indian country) unless the state has expressly demonstrated authority and EPA has expressly approved the state to administer the EPA program there. EPA has not expressly authorized the State of Michigan under the federal environmental laws in Indian country.

Comment #3: MDEQ comments that EPA's interpretation of what lands constitute a reservation appears to be typically based solely on claims of tribes, even where those claims are clearly contrary to applicable laws and treaties, as well as all available historical evidence, and have never been established in a court of law.

Response: Under RCRA, EPA determines which lands constitute a reservation (and hence are within Indian country) on a case-by-case basis. EPA does not rely solely on the claims of tribes in making this determination. EPA generally consults with the Department of Interior in making this determination and takes into account all applicable information, including treaties and other laws.

Comment #4: MDEQ commented that the term “Indian country” appears in a criminal statute which predates RCRA. MDEQ also commented that EPA's interpretation diminishes the scope of Michigan's base RCRA program.

Response: The use of the term “Indian country” rather than the term “Indian lands” would not diminish Michigan's base program, since EPA treats those two terms as synonymous. The statutory definition of “Indian country” in 18 U.S.C. 1151, includes, inter alia , all lands within the limits of any Indian reservation, including non-member fee lands. EPA notes that, although the definition of Indian country appears in a criminal code, it generally applies to civil judicial and regulatory jurisdiction. Alaska v. Native Village of Venetie Tribal Gov't , 522 U.S. 520, 527 (1998); Decoteau v. District County Court , 420 U.S. 425, 427 n.2 (1975). EPA also notes that its interpretation of the two terms has been held consistently even before Michigan received authorization for the base RCRA program in October of 1986. See Washington Dep't of Ecology v. U.S. EPA , 752 F. 2d 1465, 1467, n.1 (9th Cir. 1985).

Comment #5: The commenter asserts that EPA should have hosted a public hearing.

Response: Michigan received final authorization for its RCRA program on October 30, 1986, and is applying for a revision to its authorized program to reflect analogous modifications to the federal RCRA Subtitle C program. The regulations governing review of program revisions at 40 CFR part 271 do not require a hearing for authorization of revisions. On March 4, 1986, EPA promulgated amendments to 40 CFR 271.21 that eliminated public hearing requirements for revisions. The Agency discussed this elimination in the preamble to that rule:

Comment #6: The commenter asserts that Michigan's statutes in Public Act 451 Part 111 and 115 do not appear to provide authority for the land application of hazardous waste found in R 299.9801, Mich. Adm. Code.

Response: R 299.9801, Mich. Adm. Code, was adopted by the State of Michigan effective on December 28, 1985. The Attorney General of the State of Michigan submitted a statement, signed September 7, 1988, that certified that “the laws of the State of Michigan provide adequate authority to carry out the revised program set forth in the revised “Program Description” submitted by the Michigan Department of Natural Resources.” (The agency was later renamed the Department of Environmental Quality.) Page 3 of that statement, paragraph II.A, reads, “State statutes and regulations define hazardous waste and impose management standards so as to control all the hazardous waste controlled under 40 CFR 261, 264, 265 and 266 as amended August 20, 1985 [50 FR 33541-43]* * *” The statement further cites to the following statutory and regulatory authority, among others:

• 1979 Act 64, section 4(3); MCL 299.504(3); MSA 13.30(4)(3) (currently 1994 Act 451, section 11103(3); MCL 324.11103(3); MSA 13a.11103(3)).

• 1979 Act 64, section 26; MCL 299.526; MSA 13.30(26) (currently 1994 Act 451, section 11127; MCL 324.11127; MSA 13a.11127)).

• Mich. Admin. Code 1985 AACS, R 299.9101 et seq.

EPA reviewed the statement and the citations of authority and found them satisfactory, and authorization of the state program revisions became effective on April 24, 1989.

Comment #7: The commenter asserts that R 299.9801, Mich. Adm. Code, allows for the unregulated disposal of hazardous waste as a fertilizer “product,” whereas R 299.4111, Mich. Adm. Code, which pertains to plans to manage solid wastes as non-detrimental material managed for agricultural or silvicultural use, would heavily regulate non-hazardous waste.

Response: For the reasons discussed below, this authorization action is not the appropriate forum for these comments. As in the federal regulations at 40 CFR 266.20, R 299.9801, Mich. Admin. Code, exempts products that contain “recyclable materials used in a manner constituting disposal” (except K061 derived fertilizers  1 ) from regulation only if they comply with applicable land disposal restriction (LDR) treatment standards or, where no treatment standards have been established, if they comply with the applicable prohibition levels or with section 3004(d) of RCRA, for each recyclable material that the products contain. EPA promulgated 40 CFR 266.20 on January 4, 1985 ( see 50 FR 614) and revised this regulation on August 17, 1988 ( see 53 FR 31138); September 6, 1989 (54 FR 36967); and August 24, 1994 (59 FR 8583). Michigan R 299.9801 is equivalent to the federal requirements and was previously authorized by EPA effective on October 30, 1986 (51 FR 36804, October 16, 1986) and on April 8, 1996 (61 FR 4742, February 2, 1996). The program revisions EPA is authorizing today do not affect the equivalency of R 299.9801.

Moreover, this comment is not relevant to this action because R 299.4111, Mich. Adm.Code, is not part of and has no effect upon this action or Michigan's authorized hazardous waste program. R 299.4111, which regulates plans for managing solid wastes as non-detrimental material managed for agricultural or silvicultural use, is not applicable to hazardous wastes because R 299.4110 exempts hazardous wastes from regulation as solid waste. R 299.4110 reads as follows:

By its terms, R 299.4111, Mich. Adm. Code, applies to solid wastes:

While both solid waste and its subset hazardous waste are regulated under the umbrella of RCRA, that statute contains different subchapters for governing the content, criteria and administration of hazardous waste programs (Subchapter III) and solid waste plans (Subchapter IV). EPA's authority to “authorize” a state to administer and enforce a “hazardous waste program” under Subchapter III of RCRA ( see 3006 of RCRA, 42 U.S.C. 6926) does not constitute “approval” of either a state solid waste plan ( see section 4007(a) of RCRA, 42 U.S.C. 6947(a), or a solid waste management facility permit program ( see section 4005(c) of RCRA, 42 U.S.C. 6945(c)), under Subchapter IV of RCRA. The criteria for authorization of a state hazardous waste program are set part in section 3006 of RCRA. In reviewing an application under section 3006, EPA considers whether the state program (1) is equivalent to the federal program under Subchapter III, which governs hazardous waste; (2) is consistent with federal or “state programs applicable in other states”; and (3) provides adequate enforcement of compliance with the requirements of Subchapter III of RCRA. As part of this review, EPA considers whether the state is imposing requirements less stringent than those authorized under Subchapter III respecting the same matter as governed by such regulation. ( See sections 3006 and 3009 of RCRA, 42 U.S.C. 6926 and 6929.) The commenter's request for EPA to review R 299.9801 for consistency with R 299.4111, which explicitly does not apply to hazardous waste, falls outside the scope of this action.

For the reasons set forth above, the comments on R 299.4111, Mich. Admin. Code, are not relevant to today's action.

We conclude that Michigan's revisions to its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we are granting Michigan final authorization to operate its hazardous waste program with the revisions described in the authorization application. Michigan now has responsibility for permitting treatment, storage, and disposal facilities (TSDFs) within its borders (except in Indian country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New federal requirements and prohibitions imposed by federal regulations that EPA promulgates under the authority of HSWA take effect in authorized states before the states are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Michigan, including issuing permits, until the state is granted authorization to do so.

The effect of this decision is that a facility in Michigan subject to RCRA will now have to comply with the authorized state requirements in lieu of the corresponding federal requirements in order to comply with RCRA. Additionally, such persons will now have to comply with any applicable federally-issued requirements, such as HSWA regulations issued by EPA for which the state has not received authorization, and RCRA requirements that are not supplanted by authorized state-issued requirements. Michigan continues to have enforcement responsibilities under its state hazardous waste management program for violations of its hazardous waste management program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, the authority to:

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

• Enforce RCRA requirements and suspend or revoke permits; and

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

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

Michigan initially received final authorization on October 16, 1986, effective October 30, 1986 (51 FR 36804-36805) to implement the RCRA hazardous waste management program. We granted authorization for changes to Michigan's program effective January 23, 1990 (54 FR 48608, November 24, 1989); effective June 24, 1991 (56 FR 18517, January 24, 1991); effective November 30, 1993 (58 FR 51244, October 1, 1993); effective January 13, 1995 (60 FR 3095, January 13, 1995); effective April 8, 1996 (61 FR 4742, February 8, 1996); effective November 14, 1997 (62 FR 61775, November 14, 1997); and effective June 1, 1999 (64 FR 10111, March 2, 1999).

On March 3, 2000, and April 3, 2001, Michigan submitted complete program revision applications seeking authorization of its changes in accordance with 40 CFR 271.21. We now make a final decision that Michigan's hazardous waste management program, as revised, satisfies all requirements under RCRA necessary to qualify for final authorization. Therefore, we grant Michigan final authorization for the program revisions described in the February 28, 2002 proposed rule (67 FR 9225). For further details, see the February 28, 2002 proposed rule.

Michigan will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization, until they expire or are terminated. We will not issue any more new permits or new portions of permits for the provisions for which Michigan is authorized after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Michigan is not yet authorized.

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

Michigan is not authorized to carry out its hazardous waste program in Indian country within the state, as defined in 18 U.S.C. 1151. This includes:

1. All lands within the exterior boundaries of Indian reservations within or abutting the State of Michigan;

2. Any land held in trust by the U.S. for an Indian tribe; and

3. Any other land, whether on or off an Indian reservation that qualifies as Indian country.

Therefore, today's action has no effect on Indian country. EPA will continue to implement and administer the RCRA program in Indian country. It is EPA's long-standing position that the term “Indian lands” used in past Michigan hazardous waste approvals is synonymous with the term “Indian country.” Washington Dep't of Ecology v. U.S. EPA, 752 F.2d 1465, 1467, n.1 (9th Cir. 1985). See 40 CFR 144.3 and 258.2.

The Office of Management and Budget has exempted RCRA authorizations from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. Furthermore, this action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. This action authorizes state requirements for the purpose of RCRA section 3006 and imposes no additional requirements beyond those imposed by state law. This authorization will effectively suspend the applicability of certain federal regulations in favor of Michigan's program, thereby eliminating duplicate requirements for handlers of hazardous waste in the state. Authorization will not impose any new burdens on small entities. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action authorizes pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This action does not have tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes state requirements as part of the state RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This action does not include environmental justice related issues that require consideration under Executive Order 12898 (59 FR 7629, February 16, 1994).

Under RCRA 3006(b), EPA grants a state's application for authorization as long as the state meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a state authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued under the executive order. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1994 (44 U.S.C. 3501 et seq. ).

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

NOAA Fisheries published a final rule in the Federal Register on December 26, 2001 (66 FR 66348), announcing specifications and adjustments to the 2002 summer flounder, scup, and black sea bass commercial quotas. On February 14, 2002, NOAA Fisheries published a final rule in the Federal Register (67 FR 6877) revising the method by which the commercial quotas for these species are to be adjusted if landings in any fishing year exceed the quota allocated (thus resulting in a quota overage). The FMP originally required that any landings in excess of a commercial quota allocation for a state or period in one year would be deducted from that state's or period's annual quota allocation for the following year. This was problematic because complete landings data for the year were often not available until much later in the next fishing year. As a result, it was frequently necessary for NMFS to publish several subsequent quota adjustments during the next fishing year, as landings information became available. These adjustments complicated the resource management efforts of state marine fisheries agencies, and hampered planning by commercial fishers. The regulatory amendment corrected these deficiencies by establishing a cut-off date of October 31 for landings data to be used in calculating quota overages and making the resultant adjustments to the quotas when developing the specifications for the upcoming fishing year. The regulatory amendment also specified that, by June 30 of the following year, all available landings data for the previous year's Winter II scup quota period (November - December) and the Quarter 4 black sea bass quota period (October - December) would be compiled and compared to the quota allocations for those periods. Any resultant overages would be deducted from the quotas for the current fishing year in July, through notification in the Federal Register . Any further overages identified as a result of late data submitted for any given year's quota periods would be applied to the quota allocations for the next fishing year. Accordingly, this notice is being published to inform the public of overages of the 2001 Winter II scup quota period and to adjust the 2002 Winter II scup quota to account for those overages. There was not an overage of the 2001 Quarter 4 black sea bass quota so an adjustment of the 2002 Quarter 4 quota is not necessary.

The adjustment in this notification is final. Additional data, including late landings reported from either federally permitted dealers or state statistical agencies reporting landings by non-federally permitted dealers, that are received will be added onto available 2002 landings and then used to determine any adjustments to the 2003 quotas during the specification-setting process for the 2003 fishing year.

The 2001 Winter II scup quota, available 2001 Winter II scup landings, and the resulting overage of the 2001 Winter II scup quota are presented in Table 1. The resulting adjusted 2002 Winter II scup commercial quota is presented in Table 2.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.