This final rule is issued in conformance with Executive Order 12866 and has been determined to be significant and has been reviewed by the Office of Management and Budget.

The Regulatory Flexibility Act is not applicable to this rule because USDA is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking on the subject matter of this rule.

It has been determined by an environmental evaluation that this action will have no significant impact on the quality of the human environment. Therefore, neither an environmental assessment nor an Environmental Impact Statement is needed.

This rule has been reviewed in accordance with Executive Order 12988. This rule preempts State laws that are inconsistent with this rule. Before any judicial action may be brought concerning this rule, the administrative remedies must be exhausted.

This program is not subject to Executive Order 12372, which requires consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983).

The provisions of Title II of the Unfunded Mandates Reform Act of 1995 are not applicable to this rule because the USDA is not required by 5 U.S.C. 553 or any other law to publish a notice of proposed rulemaking on the subject matter of this rule. Further, in any case, these provisions do not impose any mandates on state, local or tribal governments, or the private sector.

The title and number of the Federal assistance program, as found in the Catalogue of Federal Domestic Assistance, to which this rule applies are:

10.075—Special Apple Program

A notice with request for comments on the information collection was part of the proposed rule. No comments were received from the public during the 60-day comment period regarding the information collection. In accordance with the Paperwork Reduction Act of 1995, FSA has submitted an emergency information collection request to OMB for the approval of a reinstatement, with change, or a previously approved collection for which approval has expired for the Apple Market Loss Assistance Payment Program application, as necessary for the proper functioning of the program. A regular information collection package will be submitted to OMB.

FSA is committed to compliance with the Government Paperwork Elimination Act (GPEA) and the Freedom to E-File Act, which require Government agencies in general and FSA in particular to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. The forms and other information collection activities required for participation in the program implemented under this rule are not yet fully implemented for the public to conduct business with FSA electronically. However, the application form will be available electronically through the USDA eForms web site at http://www.sc.egov.usda.gov for downloading. The regulation will be available at FSA's Price Support Division internet site at http://www.fsa.usda.gov/dafp/psd. Applications may be submitted at the FSA county offices, by mail or by FAX. At this time, electronic submission is not available because signatures from multiple producers with shares in the apple operations production are required. Still, full implementation of electronic submission is underway.

This rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. The provisions contained in this rule will not have a substantial direct effect on States or their political subdivisions, or on the distribution of power and responsibilities among the various levels of government.

This rule finalizes the proposed rule published in the Federal Register at 67 FR 139 on July 19, 2002. The comment period for the proposed AMLAP-II rule closed on August 19, 2002. Comments were received from two agricultural trade associations and one farm bureau. Two comments received expressed the urgency for USDA to administer this critical assistance to apple growers. FSA recognizes the immediate need of the financial assistance this program will offer to the nation's apple growers and are undertaking measures to expedite the dispersal of funds and relieve some of the economic stress from production losses experienced by growers in the apple industry.

The other comment received directed concern toward inconsistencies in how the rule establishes eligible production. Their concern was that the rule, as written, would confuse program participants. The respondent indicated that the definition of “eligible production” in section 1470.103 should be changed to include harvested production, so it is consistent with section 1470.101(b), which indicates that payments shall be available only for apples produced and harvested. The respondent also noted that there were other areas in the rule that referenced eligible production as only having to be produced during the 2000 crop year rather than produced and harvested during the 2000 crop year. The Agency agrees that this clarification is useful and adopted the appropriate changes in this final rule to state explicitly in section 1470.103, as well, that eligible apple production must be produced and harvested during the 2000 crop year.

This final rule addresses the types of signs, signals, and barricades that must be used to protect construction employees from traffic hazards. The vast majority of road construction in the United States is funded through Federal transportation grants. As a condition to receiving Federal funding, the U.S. Department of Transportation's (DOT's) Federal Highway Administration requires compliance with its MUTCD.

In furtherance of OSHA's statutory mandate to protect the health and safety of employees, OSHA also requires employers that are within the scope of its authority to comply with the MUTCD. However, OSHA's current standard incorporates the 1971 version of the MUTCD, which FHWA has since updated. The purpose of this final rule is to update OSHA's standard.

On April 15, 2002, OSHA published a direct final rule and a companion proposed rule to update 29 CFR 1926 subpart G—Signs, Signals, and Barricades [67 FR 18091]. The Agency explained that unless a significant adverse comment is received within a specified period of time, the rule would become effective. Alternatively, if significant adverse comments are received, the agency would withdraw the direct final rule and treat the comments as comments to the proposed rule. Direct final rulemaking is used where the agency anticipates that the rule will be non-controversial.

The Agency stated that, for purposes of the direct final rule published on April 15, a significant adverse comment is one that explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or why it would be ineffective or unacceptable without a change. In determining whether a significant adverse comment would necessitate withdrawal of this direct final rule, OSHA would consider whether the comment raises an issue serious enough to warrant a substantive response in a notice-and-comment process. A comment recommending an addition to the rule would not be considered a significant adverse comment unless the comment states why this rule would be ineffective without the addition. If timely significant adverse comments were received, the agency would publish a notice of significant adverse comment in the Federal Register withdrawing this direct final rule no later than July 15, 2002.

In the companion proposed rule, which is essentially identical to the direct final rule [67 FR 18145], OSHA stated that in the event the direct final rule were withdrawn because of significant adverse comment, the agency could proceed with the rulemaking by addressing the comment and again publishing a final rule. The comment period for the proposed rule ran concurrently with that of the direct final rule. Any comments received under the companion proposed rule were to be treated as comments regarding the direct final rule. Likewise, significant adverse comments submitted to the direct final rule would be considered as comments to the companion proposed rule; the agency would consider such comments in developing a subsequent final rule.

On July 15, 2002, OSHA published a notice withdrawing the direct final rule [67 FR 46375], explaining that of the eight comments that had been submitted, the Agency was treating two as significant adverse comments. Both comments challenged the August 13, 2002 effective date of the rule. The two comments are being treated as comments on the companion proposed rule, and are addressed below. In response to the comments, OSHA has set the effective date at December 11, 2002.

Currently, under 29 CFR part 1926 subpart G—Signs, Signals, and Barricades, OSHA requires that employers comply with the 1971 MUTCD. Specifically, employers must ensure that the following conform to the 1971 MUTCD: traffic control signs or devices used to protect construction workers (29 CFR 1926.200(g)(2)); signaling directions by flagmen (29 CFR 1926.201); and barricades for the protection of workers (29 CFR 1926.202).

In contrast, a DOT rule, 23 CFR 655.601 through 655.603, requires that such traffic control signs or devices conform to a more recent version of the MUTCD. DOT regulations provide that the MUTCD is the national standard for all traffic control devices on streets, highways and bicycle trails. DOT's rule requires that traffic control devices on roads in which federal funds were involved be in substantial conformance with its MUTCD. In effect, the MUTCD has become a national benchmark for all roads.

Under Title 23 of the U.S. Code, sections 109(d) and 402(a), the Secretary of Transportation is authorized to promulgate and require compliance with uniform guidelines to reduce injuries and fatalities from road accidents. Specifically, section 109(d) authorizes DOT to require (through its approval of State highway department requirements) all highway projects in which Federal funds are involved to comply with these types of uniform rules. Highways are broadly defined under section 101(a)(11) of the DOT statute, and include roads, streets and parkways. Under section 402(a), DOT is authorized to require each State to have a highway safety program, including uniform standards for traffic safety, approved by DOT. In accordance with this authority, DOT promulgated 23 CFR part 655, subpart F (Traffic Control Devices on Federal-Aid and Other Streets and Highways). In section 655.603(a), DOT established its MUTCD as “the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel * * * ” Under subpart F, the States were required to adopt Revision 3 for federally funded highways within two years of its issuance. The effective date of the final rule that adopted Revision 3 was January 10, 1994 [58 FR 65084 (December 10, 1993)]. A two-year period for transition to full compliance with Revision 3 expired January 10, 1996. Transition to full compliance with the Millennium edition must be completed by January 2003. Consequently, employers have already been required to comply with Revision 3 for all federal-aid highways. In addition, all States have required compliance with Revision 3 for most roads (although there is some variation among the States regarding the extent to which compliance is required on municipal, county, and private roads).

In the early 1970s, the FHWA assumed from ANSI responsibility for publishing the MUTCD. The FHWA substantially rewrites the MUTCD every 10 to 20 years, and amends it every two to three years. Until the Millennium Edition was published in December 2000, the most recent edition was the 1988 edition. The 1988 edition consisted of 10 parts, including part VI, “Standards and Guides for Traffic Controls for Street and Highway Construction, Maintenance, Utility, and Incident Management Operations.” The FHWA substantially revised and reissued part VI in 1993 (Revision 3). There are substantial differences both in substance and format between Revision 3 and the 1971 MUTCD. The most recent edition of the MUTCD, the Millennium Edition published in December 2000, contains some substantive changes and a new, easier to use format. States are required to adopt the Millennium Edition or its equivalent by January 2003.

Several stakeholders asked OSHA to update subpart G, because they had to meet the outdated OSHA requirements in addition to the DOT rule. They pointed out that Revision 3 and the Millennium Edition reflect updated standards and technical advances based on 22 years of experience in work zone traffic control design and implementation, as well as human behavior research and experience. The National Committee on Uniform Traffic Control Devices (“NCUTCD”), consisting of various national associations and organizations interested in highway construction or highway safety, including the American Road and Transportation Builders Association, the Association of American Railroads, the American Automobile Association, the National Association of Governor's Highway Safety Representatives, and the National Safety Council, unanimously resolved in January 1999 to request that OSHA adopt Revision 3 in place of the 1971 MUTCD. In May 2000, OSHA's Advisory Committee on Construction Occupational Safety and Health (“ACCSH”) also expressed support for adopting a more recent edition of the MUTCD as the OSHA standard for the construction industry.

OSHA reviewed the differences between the 1971 version, Revision 3 and the Millennium Edition and concluded that compliance with the more recently published manuals would provide all the safety benefits (and more) of the 1971 version. The differences between OSHA's regulations that reference the 1971 MUTCD and DOT's modern regulations create potential industry confusion and inefficiency, without in any respect advancing worker safety. Accordingly, in an interpretation letter dated June 16, 1999, to Cummins Construction Company, Inc., OSHA stated that it would accept compliance with Revision 3 in lieu of compliance with the 1971 MUTCD referenced in section 1926.200(g) through its de minimis policy.

The numerous and various changes to the 1971 MUTCD reflected in Revision 3 and the Millennium Edition stem from over 20 additional years of experience in temporary traffic control zone design, technological changes, and contemporary human behavior research and experience. Revision 3 and the Millennium Edition provide highway work zone planners more comprehensive guidance and greater flexibility in establishing effective temporary traffic control plans based on type of highway, traffic conditions, duration of project, physical constraints and the nature of the construction activity. Revision 3 and the Millennium Edition, accordingly, better reflect current practices and techniques to best ensure highway construction worker safety and health.

Accordingly, OSHA is amending the safety and health regulations for construction to adopt and incorporate Revision 3 (and the option to comply with the Millennium Edition), instead of the 1971 MUTCD, and to make certain editorial changes. The amendment deletes the references in 29 CFR 1926.200(g)(2) and 1926.202 to the 1971 MUTCD and inserts references to Revision 3 (and the option to comply with the Millennium Edition). The amendment clarifies and abbreviates 29 CFR 1926.201(a), by simply adopting the requirements of Revision 3 (and the option to comply with the Millennium Edition) with regard to the use of flaggers. The amendment also makes certain editorial corrections, replacing the term workers for the term workmen and the term flaggers for the term flagmen in 29 CFR 1926.200(g)(2) and 1926.201(a).

Updating OSHA's rule eliminates the technical anomaly of having to meet both OSHA's outdated requirement to comply with the 1971 version and DOT's more modern requirements. Instead, OSHA's final rule requires compliance with Revision 3 (or, at the option of the employer, the Millennium edition). In addition to harmonizing OSHA's requirements with those of DOT, the final rule's additional safety measures (described below) will be enforceable as OSHA requirements. With the current emphasis on rebuilding the Nation's highways and improving safety in work zone areas, OSHA's update is particularly appropriate.

Both the 1971 MUTCD and Revision 3 were written in narrative form with “must/shall,” “should,” and “may” sentences indicating mandatory requirements, guidance, and options, respectively. These verbs were often intermixed within a single paragraph, leading to some confusion. In the Millennium Edition, each subsection is organized by “standard,” “guidance,” and “options” categories. An additional category, titled “support,” is also included. This format clarifies what is expected of employers and the basis for those requirements. Pursuant to the requirements of 29 CFR 1926.31, only the mandatory language of standards that are incorporated through reference are adopted as OSHA standards. Therefore, the summary of changes below will focus primarily on the revisions that impose new requirements, or modify already existing requirements. The summary does contain short discussions on traffic control plans and tapers which, while not required by MUTCD, reflect industry practice.

The 1988 edition of the MUTCD eliminated the term “flagmen” and “workmen” and replaced them with the more inclusive “flaggers” and “workers.” The final rule amends 29 CFR 1926.200(g)(2), 1926.201(a) and 1926.203 to be consistent with these changes.

In the Millennium Edition, the FHWA also changed the title of part 6 from “Standards and Guides for Traffic Controls for Street and Highway Construction, Maintenance, Utility, and Incident Management Operations” to “Temporary Traffic Control.” The new title is more succinct and more accurately describes the contents of the section.

Revision 3 and the Millennium Edition describe an overall “guiding philosophy” of “fundamental principles” for good temporary traffic control, which is not explicitly set out in part VI of the 1971 MUTCD. Although these principles do not formally establish new requirements, they provide a framework for understanding requirements set out in the remainder of part VI. In the corresponding section, the 1971 ANSI standard required that all temporary traffic control devices be removed as soon as practical when they are no longer needed. Revision 3 downgraded this requirement to a recommendation. This issue was revisited during the drafting of the Millennium Edition, which once again requires the removal of signs when they are no longer needed. The Millennium Edition requires that employers remove temporary traffic control devices that are no longer appropriate, even when the work is only suspended for a short period of time.

The 1971 MUTCD does not discuss traffic control plans (TCPs), which are used by industry to describe traffic controls that are to be implemented in moving vehicle and pedestrian traffic through a temporary traffic control zone. Revision 3 emphasizes the importance of TCPs in facilitating safe and efficient traffic flow. Revision 3 recognizes that different TCPs are suitable for different projects and does not detail specific requirements. The Millennium Edition offers expanded guidance and options for TCPs, but it adds no requirements. In both Revision 3 and the Millennium Edition, a TCP is recommended but not required. Revision 3 and the Millennium Edition also discuss the “temporary traffic control zone,” comprised of several areas known as the “advance warning area,” “transition area,” “activity area,” and “termination area.” In addition, Revision 3 and the Millennium Edition explain the need for differing traffic control measures in each control zone area.

The 1971 MUTCD only briefly describes “tapers” and provides a formula for calculating the appropriate taper length. However, Revision 3 defines and discusses five specific types of tapers used to move traffic in or out of the normal path of travel. It illustrates each of them, and sets out specific formulae for calculating their appropriate length. In all three editions, information relating to tapers is limited to guidance and contains no mandatory requirements.

All versions of the MUTCD require the coordination of traffic movement, when traffic from both directions must share a single lane. Revision 3 and the Millennium Edition describe five means of “alternate one-way traffic control,” adding the “Stop or Yield Control Method” to the methods described in the 1971 MUTCD. The “Stop or Yield Control Method” is appropriate for a low-volume two-lane road where one side is closed and the other side must serve both directions. It calls for a stop or yield sign to be installed on the side that is closed. The approach to the side that is not closed must be visible to the driver who must yield or stop.

Revision 3 adds a lengthy section, not found in the 1971 MUTCD, that provides guidance and options on pedestrian and worker safety. Under Revision 3, the key elements of traffic control management that should be considered in any procedure for assuring worker safety are training, worker clothing, barriers, speed reduction, use of police, lighting, special devices, public information, and road closure. Revision 3 recommends that these traffic control techniques be applied by qualified persons exercising good engineering judgment. The Millennium Edition makes this recommendation a requirement. The Millennium Edition also requires advance notification of sidewalk closures.

Revision 3 and the Millennium Edition require that a flagger wear an orange, yellow, or “strong yellow green” (called “yellow-green” in Millennium Edition) vest, shirt, or jacket, instead of an “orange vest and/or an orange cap,” as directed in the 1971 ANSI standard. For nighttime work, Revision 3 requires that the outer garment be retro-reflective orange, yellow, white, silver, or strong yellow-green, or a fluorescent version of one of these colors. This clothing must be designed to identify clearly the wearer as a person, and the clothing must be visible through the full range of body motions. For nighttime work, the Millennium Edition requires that the colors noted above be retro-reflective, but does not mandate that the clothing be visible through the full range of body motions. Both Revision 3 and the Millennium Edition allow the employer more flexibility in selecting colors.

Under the 1971 ANSI standard, the flagger was required to be visible to approaching traffic at a distance that would allow a motorist to respond appropriately. Revision 3 and the Millennium Edition contain more specific requirements. Under both versions, flaggers must be visible at a minimum distance of 1,000 feet. In addition, Revision 3 and the Millennium Edition list training in “safe traffic control practices” as a minimum flagger qualification.

Revision 3 and the Millennium Edition depart significantly from the 1971 ANSI standard by requiring that “Stop/Slow” paddles, not flags, be the primary hand-signaling device. The paddles must have an octagonal shape on a rigid handle, and be at least 18 inches wide with letters at least six inches high. The 1971 ANSI standard recommended a 24-inch width. Revision 3 and the Millennium Edition require that paddles be retro-reflectorized when used at night. Flags would still be allowed in emergency situations or in low-speed and/or low-volume locations. Revision 3 and the Millennium Edition differ in that Revision 3's recommendations for flag and paddle signaling practice are requirements in the Millennium Edition. In addition, the Millennium Edition applies several new requirements when flagging is used. The flagger's free arm must be held with the palm of the hand above shoulder level toward approaching traffic and the flagger must motion with the flagger's free hand for road users to proceed. These requirements were guidance in Revision 3, and options in the 1971 ANSI standard.

Revision 3 and the Millennium Edition reflect numerous differences in the design and use of various traffic control devices, such as signs, signals, cones, barricades and markings, used in temporary traffic control zones. Several signs or devices are described that are not mentioned in Part VI of the 1971 ANSI standard. These signs and devices, along with their location in Revision 3 and the Millennium Edition, can be found in Table 1.

Also, Revision 3 and the Millennium Edition offer expanded options for the color of temporary traffic control signs. Signs that under the 1971 ANSI standard were required to have orange backgrounds may now have fluorescent red-orange or fluorescent yellow-orange backgrounds.

The 1971 ANSI standard required that signs in rural areas be posted at least five feet above the pavement; signs in urban areas were required to be at least seven feet above the pavement. Revision 3 eliminated the distinction between urban and rural areas, and downgraded the requirement to a recommendation. It recommended that signs in all areas have a minimum height of seven feet. In the Millennium Edition, the FHWA returned to the 1971 ANSI requirements. The Millennium Edition also introduced the requirement that signs and sign supports be crashworthy.

The Millennium Edition introduced and clarified mandatory requirements for the design of the following signs: Weight Limit, Detour, Road (Street) Closed, One Lane Road, Lane(s) Closed, Shoulder Work, Utility Work, signs for blasting areas, Shoulder Drop-Off, Road Work next XX KM (Miles), and Portable Changeable Message.

The dimensions, color or use of certain channelizing devices have also changed. “Channelizing devices” include cones, tubular markers, vertical panels, drums, barricades, temporary raised islands and barriers. The 1971 ANSI standard required that traffic cones and tubular markers be at least 18 inches in height and that the cones be predominantly orange. Revision 3 raised the minimum height for traffic cones and tubular markers to 28″ “when they are used on freeways and other high speed highways, on all highways during nighttime, or whenever more conspicuous guidance is needed.” (6F-5b(1), 5c(1)) Revision 3 also expanded the color options for cones to include fluorescent red-orange and fluorescent yellow-orange. The Millennium Edition maintained these requirements.

Revision 3 and the Millennium Edition require that vertical panels be 8 to 12 inches wide, rather than the 6 to 8 inches required by the 1971 ANSI standard. Under Revision 3 and the Millennium Edition, drums must be made of lightweight, flexible and deformable materials, at least 36 inches in height, and at least 18 inches in width. Steel drums may not be used. The Millennium Edition adds the requirement that each drum have a minimum of two orange and two white stripes with the top stripe being orange. Revision 3 and the Millennium Edition require that delineators only be used in combination with other devices, be white or yellow, depending on which side of the road they are on, and be mounted approximately four feet above the near roadway edge.

The 1971 ANSI standard required warning lights to be mounted at least 36 inches high. Revision 3 and the Millennium Edition reduced the minimum height to 30 inches and introduced new requirements for warning lights. Type A low intensity flashing warning lights and Type C steady-burn warning lights must be maintained so as to allow a nighttime visibility of 3000 feet. Type B high intensity flashing warning lights must be visible on a sunny day from a distance of 1000 feet.

Revision 3 and the Millennium Edition contain an additional requirement, not found in the 1971 ANSI standard, that requires employers to remove channelizing devices that are damaged and have lost a significant amount of their retro-reflectivity and effectiveness. Revision 3 and the Millennium Edition also specifically prohibit placing ballast on the tops of drums or using heavy objects such as rocks or chunks of concrete as barricade ballast.

Revision 3 and the Millennium Edition address in greater detail the appearance and use of pavement markings and devices used to delineate vehicle and pedestrian paths. They require that after completion of the project, pavement markings be properly obliterated to ensure complete removal and a minimum of pavement scars. Whereas Revision 3 requires that all temporary broken-line pavement markings be at least four feet long, the Millennium Edition sets the minimum at two feet.

This section, not found in the 1971 ANSI standard, provides information on selecting the appropriate applications and modifications for a temporary traffic control zone. The selection depends on three primary factors: Work duration, work location, and highway type. Section 6G in both Revision 3 and the Millennium Edition emphasizes that the specific typical applications described do not include a layout for every conceivable work situation and that typical applications should, when necessary, be tailored to the conditions of a particular temporary traffic control zone.

Among the specific new requirements in Revision 3 and the Millennium Edition are the following: retro-reflective and/or illuminated devices in long term (more than three days) stationary temporary traffic control zones; warning devices on (or accompanying) mobile operations that move at speeds greater than 20 mph; warning sign in advance of certain closed paved shoulders; a transition area containing a merging taper in advance of a lane closure on a multi-lane road; temporary traffic control devices accompanying traffic barriers that are placed immediately adjacent to the traveled way; and temporary traffic barriers or channelizing devices separating opposing traffic on a two-way roadway that is normally divided.

The Millennium Edition includes several additional requirements in Section 6G. It requires the use of retro-reflective and/or illuminated devices in intermediate-term stationary temporary traffic control zones. A zone is considered intermediate-term if it is occupying a location more than one daylight period up to three days, or if there is nighttime work in the zone lasting more than one hour. The Millennium Edition also requires a transition area containing a merging taper when one lane is closed on a multi-lane road. When only the left lane on undivided roads is closed, the merging taper must use channelizing devices and the temporary traffic barrier must be placed beyond the transition area channelizing devices along the centerline and the adjacent lane. In addition, when a directional roadway is closed, inapplicable WRONG WAY signs and markings, and other existing traffic control devices at intersections within the temporary two-lane two-way operations section, must be covered, removed, or obliterated.

Revision 3 and the Millennium Edition provide an extensive series of diagrams illustrating Atypical applications' of the temporary traffic control requirements. These illustrations are intended as practical guides on how to apply all the factors discussed in other chapters and displayed on Figures and Tables throughout Part VI.

In the direct final rule, OSHA set an effective date of August 13, 2002. In two of the eight comments received in response to the direct final rule and proposed rule, commenters asserted that the effective date needed to be delayed by one year. The Agency is treating those two comments as significant adverse comments.

The National Electrical Contractors Association (NECA) asserted that an additional year was needed to “allow enough time for industry organizations to notify their constituents of their new compliance responsibilities and for contractors to achieve full compliance.” (EX 2-3). Specifically, NECA stated:

The National Association of Homebuilders (NAHB) submitted similar comments (EX-2-7), asserting that:

The Agency finds that these assertions fail to demonstrate a need for a one-year delay in the effective date. Implicit in the comments is the assumption that the MUTCD has applied only to employers engaged in road work, while OSHA is now seeking to apply the revised MUTCD to contractors engaged in non-road work affected by road traffic hazards. The assumption that the requirements of the 1971 MUTCD were limited to the construction/repair of roads is incorrect. In section 6A-3 (“Application of Standards”) of the 1971 MUTCD, “construction and maintenance operations” covered by the manual are described as including “encroachments by adjacent building construction.”

Also, with respect to NECA's comment, as stated in section 6A-2 (Scope) of the 1971 MUTCD, the requirements have applied specifically to “utility work.” Additionally, in 29 U.S.C. 1926 subpart V (Power Transmission and Distribution), section 1926.955(b)(7) requires that in metal power transmission/distribution tower construction, adequate traffic control must be maintained when crossing highways with equipment as required by the provisions of 1926.200 (g)(2)—which had incorporated the 1971 MUTCD. This Subpart V requirement has been in place since 1973. Therefore, employers other than just those constructing/repairing roads have had to comply with the 1971 MUTCD for approximately 30 years.

As discussed below, in analyzing the costs of updating the rule, OSHA estimates that the overwhelming majority of roads in the United States are subject to DOT requirements to comply with Revision 3 or the Millennium Edition. Consequently, the percentage of worksites where equipment is now going to be required for the first time is small. Furthermore, it is unlikely that many construction employers work exclusively on sites subject to DOT jurisdiction. As long as some of their work has been subject to DOT requirements, they have had to have the equipment necessary to comply with the updated MUTCD since 1996. Therefore, it is unlikely that whatever new demand there is for equipment will be significant relative to current industry production levels.

The NAHB and NECA also stated that more time is needed to train both the industry and OSHA compliance officers on the updated MUTCD. In light of the fact that most affected employers have been required to comply with the updated MUTCD since 1996, it appears that a one-year extension in the effective date, which was requested by these commenters, is not necessary. However, to facilitate the Agency's emphasis on outreach efforts, OSHA has added 120 days to the original proposed effective date; the new effective date is December 11, 2002. This will also accommodate the small number of employers affected by this rule that have not until now been required to comply with the updated MUTCD requirements.

Through this rule, OSHA is requiring that traffic control signs, signals, barricades or devices conform to Revision 3 or Part VI of the Millennium Edition, instead of the ANSI MUTCD. The ANSI MUTCD was issued in 1971. In 1988 the FHWA substantially revised and reissued the MUTCD. Since that time, FHWA has published several updates, including a 1993 revision to Part VI—Revision 3. In December 2000, FHWA published a Millennium Edition of the MUTCD that changed the format and revised several requirements. Employers that receive Federal highway funds are currently required to comply with Revision 3 and have up until January 2003 to bring their programs into compliance with the Millennium Edition.

This is a significant regulatory action and has been reviewed by the Office of Management and Budget under Executive Order 12866. OSHA has determined that this action is not an economically significant regulatory action within the meaning of Executive Order 12866. Revision 3 of the MUTCD adds to the ANSI requirements some new, alternative traffic control devices and expanded provisions and guidance materials, including new typical application diagrams that incorporate technology advances in traffic control device application. Part VI of the Millennium Edition includes some alternative traffic control devices and only a very limited number of new or changed requirements. However, the activities required by compliance with either Revision 3 or the Millennium Edition would not be new or a departure from current practices for the vast majority of work sites. All of these requirements are now or have been part of DOT regulations that cover work-related activities on many public roadways.

According to DOT regulations, the MUTCD is the national standard for streets, highways and bicycle trails. While OSHA's de minimus policy is applied to situations in which there is failure to comply with the 1971 ANSI MUTCD when there is compliance with Revision 3, this action will reduce any confusion created by the current requirement for employers to comply both with the 1971 ANSI MUTCD and DOT's MUTCD.

The majority of U.S. roads are currently covered by DOT regulations and their related State MUTCDs. DOT regulations cover all federal-aid highways, which carry the majority of traffic. Moreover, many states extend MUTCD coverage to non-federal-aid and private roads. Thus, the requirements imposed by this OSHA final rule will be new only for the small percentage of the work that is not directly regulated by DOT or state transportation agencies.

Federal-Aid Highways. Employers must comply with Revision 3 for all construction work respecting federal-aid highways. Although federal-aid highways constitute a minority of all public highways as measured by length, these highways carry the great majority of traffic. According to OSHA's analysis, 84 percent of vehicle-miles are driven on federal-aid highways ( see Table 1). Though not a perfect measure, vehicular use corresponds more directly than length of road to the need for construction, repair, and other work activities addressed by the MUTCD. This suggests that most of these activities occur with respect to federal-aid highways. Conforming to the standards of the MUTCD during these work activities is a clear requirement of receiving federal highway funds and is therefore regulated by DOT.

State, Local, County and Municipal Roads (not Receiving Federal Aid) . The available data suggest that work respecting most non-federal-aid roads are required to comply with the MUTCD. Many states choose to regulate public roadways that are not federal-aid highways and thereby extend the coverage of the MUTCD. For example, OSHA reviewed the practices of nine states (Alabama, Arkansas, Colorado, Connecticut, Delaware, Kentucky, Michigan, North Carolina, and Texas), which include 23 percent of all U.S. public roads. In conducting this review, OSHA found that eight of the states require MUTCD standards on all state roads, while the ninth state requires MUTCD standards on state roads if the state contracts the work to be done. Five of these states also require that MUTCD standards be met on all county and municipal roads. For the sample of nine states, individual state coverage of public roads by state MUTCDs ranges from 12 percent to 100 percent ( see Table 2). OSHA found that, on average, MUTCD coverage of all public roads in these nine states is 84 percent. (OSHA computed the average across the nine states by weighting by total highway miles.)

Private Roads. OSHA also examined MUTCD coverage of private roads. Although data on the extent of private roads is very limited, the best available information indicates that about 20 percent of the total mileage is accounted for by private roads ( see Table 2). Some of these private roads are covered by State MUTCD standards. Of the nine states examined by OSHA, one state included private roads under the MUTCD standards if the state enforced traffic laws on these roads ( e.g. , roads in gated communities). Another state extended MUTCD standards to private roads if the state was involved in road design or approval. A third state deferred coverage to municipal ordinances, which may require meeting MUTCD standards on private roads. Thus, although it is clear that some local governments extend coverage to private roads, no data are available to specify with precision the extent to which this is the case.

The estimates of the percentage of roads and highways covered by the MUTCD presented above are conservative. States, localities and their contractors have additional incentives to comply with the MUTCD when it is not required. OSHA policy reinforces these incentives because OSHA does not enforce compliance with the ANSI MUTCD when there is compliance with Revision 3.

Under 23 U.S.C. 402(a), states must have highway safety programs that are approved by the Secretary of Transportation. The Secretary is directed to promulgate guidelines for establishing these programs. Those guidelines state that programs “should” conform with the MUTCD. DOT does not have the authority to require compliance with the MUTCD on roads that do not receive federal aid, but recommends it. In light of this, and the statement that the MUTCD is “the national standard for all traffic control devices” (23 CFR 655.603(a)), the MUTCD has become the standard of care for litigation purposes. Thus, when a state or local government engages in a road construction project, it will likely seek to meet a reasonable standard of care ( i.e. compliance with a recent edition of the MUTCD). If it does not, it could face substantial liability if the construction on its roads is a contributing factor in an accident. While compliance with the MUTCD does not insulate a state or locality from liability, it significantly reduces its exposure.

Moreover, many of the contractors who conduct work on covered roads are likely to conduct work on non-covered roads as well. In the interest of efficiency, these contractors are likely to consistently apply the current version of the MUTCD to all work, rather than switch back to the ANSI version for a small percentage of their overall business.

Finally, as is discussed below, signs and devices meeting 1993 specifications are often less expensive than signs meeting 1971 ANSI specifications. This has provided contractors involved in road construction and repair operations with a natural incentive to replace old and worn signs with signs meeting the more up-to-date standard.

DOT has consistently found that their revisions to the MUTCD as a whole and to its various parts have not given rise to new annual costs of compliance that are significant within the meaning of that term as used in Executive Order 12866. The Federal Register Notice (December 10, 1993) on the final amendment to the Manual on Uniform Traffic Control Devices (MUTCD); Work Zone Traffic Control states:

The Federal Register Notice (December 18, 2000) on the final amendment to the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) states:

Moreover, OSHA has conducted detailed comparisons of the various versions of the MUTCD. The OSHA comparative analysis indicates that the majority of changes to the 1971 version offered increased flexibility, were advisory in nature, or changed mandatory requirements to non-mandatory provisions. Table 3 summarizes the differences between the 1971 ANSI MUTCD and the 1993 Revision that either potentially increase costs or lead to increased flexibility. In cases of increased flexibility and changes to non-mandatory provisions, it is likely that the effect will be to decrease the costs of compliance.

In a few instances, however, the 1993 Revision mandated sign or device changes that could lead to cost increases because contractors would need to purchase new signs for some projects. Table 4 summarizes these cases, which include specifications for stop/slow paddles, no parking signs, “road narrows” and other warnings, and reflective traffic drums. The table lists the changes in specifications as well as presents prices for the 1971 versus the 1993 version of the sign or device. Excluded from Table 4 are “approach warning signs,” which are additional signs required by the 1993 MUTCD in highly vulnerable areas.

For stop/slow paddles, the more recent MUTCD version of sign (18″ by 18″) is less expensive than the older, ANSI version (24″ by 24″), with vendors reporting a price difference of $31.50 per sign. No parking signs that include the international “no parking” symbol (as required in the 1993 MUTCD) but do not include a legend are only $0.80 more than the older ANSI version of the signs containing only a legend (the 1993 MUTCD does not require a legend). For “road narrows” and other warning signs, the MUTCD version (36” by 36”) is $31 more than the ANSI-specification in the most direct comparison that OSHA identified ($90, as compared to $59). One vendor, however, sold a version of the new sign using an alternative metal for less than $47. Regarding reflective traffic drums, one vendor reported that reflective 55-gallon metal drums (1971 ANSI standard) are no longer produced. When they were last available they sold for $45 to $60 each. A reflective traffic drum meeting the MUTCD standard is $68.

To summarize, prices for signs meeting 1993 MUTCD specifications are not significantly higher than prices for signs meeting 1971 ANSI specifications; in fact, the prices are often lower. Moreover, for devices such as reflective traffic drums, it is not even possible to replace old and worn items with items meeting 1971 standards. This suggests that contractors involved in road construction and repair operations have had an incentive to update to 1993 specifications as their equipment has worn out. The primary effect of the OSHA standard, will be to speed the process of switching to 1993 specifications for contractors who have not already chosen to switch.

To further gauge the potential burden of updating to 1993 MUTCD specifications, OSHA examined the forty-four colored illustrations of the different types of typical highway construction work zones presented in Sections 6G through 6H of the 1993 MUTCD. The majority of examples of work zones presented in the MUTCD represent situations that are currently covered by DOT regulations, and would not be affected by the OSHA standard. However, OSHA was able to identify three examples of situations that may not fall under DOT regulations, but would be included in the scope of the OSHA standard.

The first example examined was a “Lane closure on minor street,” illustrated by Figure TA-18 ( see page 142-3 of the MUTCD). In this example, compliance with the 1993 MUTCD would require no changes. Requirements would be met using signs and devices meeting the 1971 ANSI specifications. Consequently, no incremental costs would be attributable to compliance with the 1993 MUTCD.

The second example examined was a “Lane closure for one lane-two way traffic control,” illustrated by Figure TA-10 ( see page 126-7 of the MUTCD). In this setting, compliance with the 1993 MUTCD is achieved by adding two flagger signs and four advance warning signs (two “Right [Left] Lane Closed Ahead” and two “Road Construction XXX Ft”) to the 1971 ANSI requirement. In addition, two flagger hand signaling devices (sign paddles) meeting the 1993 dimensions (24″ by 24″) are needed. A Flagger sign can be purchased for about $34, while the “Right [Left] Lane Closed Ahead” and “Road Construction XXX Ft” signs can be purchased for about $47 each. The two sign paddles are $67. 1 Thus, compliance with the 1993 MUTCD would involved a one-time expenditure of $323.

Finally, OSHA examined a third situation, “Lane closure on low-volume two-lane road,” illustrated by Figure TA-11 ( see page 128-9 of the MUTCD). It is important to note that this situation would likely apply to a county or state road, and most states already extend the coverage of the MUTCD in this setting ( see OSHA review of 9 states presented below). Here, compliance with the 1993 MUTCD is achieved through the use of two “Right [Left] Lane Closed Ahead” and two “Road Construction XXX Ft”) to the 1971 ANSI requirement, which can be purchased for about $47 each. 2 In addition, one advance warning sign with the international symbol for “yield” is needed. These can be purchased for roughly $100. 3 Thus, compliance with the 1993 MUTCD would involve a one-time expenditure of $288. If it is assumed that contractor chooses to use 20 drums instead of 20 cones, this would involve a one-time additional expenditure of $1,360, increasing compliance costs to $1,648.

In sum, DOT has consistently found that changes and revisions to the MUTCD do not lead to significant compliance costs. OSHA's comparative assessment of the 1971 ANSI requirements and the 1993 MUTCD tends to support DOT's findings. Because the OSHA regulation applies the MUTCD as developed by DOT, the costs of compliance with the OSHA regulation will be insignificant as well.

The analysis discussed above indicates that the costs of compliance for OSHA's proposed action will not be significant under Executive Order 12866. As DOT has estimated, the costs associated with the various versions of the MUTCD and its revisions are small. OSHA's comparative analysis of the 1971 ANSI and 1993 MUTCD supports DOT's estimates. In addition, the overwhelming majority of public roads are already covered by DOT regulations and their related State MUTCDs. As discussed above, OSHA estimated that more than 80 percent of work performed on U.S. roads is covered by DOT regulations and their related State MUTCDs. Due to the extension of MUTCD requirements to non-federal-aid and private roads as well as additional incentives to comply with the MUTCD in situations where compliance is not mandatory, the percentage of work already covered is likely to be much higher than 80 percent. The costs of compliance for those directly regulated by OSHA will, therefore, be substantially lower than those estimated for compliance with DOT regulations.

The differences between OSHA's current regulations that reference the ANSI MUTCD and DOT's regulations create potential industry confusion and inefficiency. OSHA's comparative analysis of the 1971 ANSI and 1993 MUTCD indicated that the majority of changes offered increased flexibility, were advisory in nature, or changed mandatory requirements to non-mandatory provisions. Since the costs of the proposed action are so minimal, it is possible that they will be completely offset by eliminating the inefficiency associated with inconsistent OSHA and DOT regulations as well the direct cost savings from enhanced flexibility and changes to non-mandatory provisions embodied in the 1993 MUTCD.

The MUTCD is a standard that has been routinely updated for decades by DOT and in fact predates the federal highway program. The process used to update this standard is for DOT to work with state highway officials, who provide federal officials with information on the evolving nature of traffic control devices and industry practices. The federal role consists primarily of compiling this evolving set of practices and devices into a national manual—the MUTCD—that includes standards, guidance, and options. As noted by a DOT official, 4 the MUTCD essentially codifies current industry practice. Thus, most potentially affected parties—local governments, highway and utility contractors, and others—already apply the MUTCD, which clearly demonstrates that doing so is both technologically and economically feasible.

In order to determine whether a regulatory flexibility analysis is required under the Regulatory Flexibility Act, OSHA has evaluated the potential economic impacts of this action on small entities. Table 5 presents the data used in this analysis to determine whether this regulation would have a significant impact on a substantial number of small entities. For purposes of this analysis, OSHA used the Small Business Administration (SBA) Small Business Size Standard and defined a small firm as a firm with $27.5 million or less in annual receipts.

OSHA guidelines for determining the need for regulatory flexibility analysis require determining the regulatory costs as a percentage of the revenues and profits of small entities. The analysis presented here is in most respects a worst-case analysis. OSHA examined the situation of a small firm with less than 20 employees all of whose employees work on projects not previously covered by Revision 3 or the Millennium Edition. OSHA further assumed that the firm previously complied only with the existing OSHA rule (1971 ANSI MUTCD). OSHA derived estimates of the profits and revenues per firm for establishments with fewer than 20 employees for “Highway and Street Construction” (SIC 1611) using data from Census and Dun and Bradstreet. Compliance costs were estimated using the third situation examined under Costs Associated with the DOT Standard (“Lane closure on low-volume two-lane road”) and assuming the worst-case scenario, where compliance costs were $1,648. This value served as OSHA's estimate for upper-bound compliance costs per construction crew. OSHA assumed that a highway construction crew consists of four employees and computed an estimate of average total cost of the regulation per establishment of $2,161. Annualized compliance costs were $308 per establishments for small entities, amounting to 0.03 percent of revenue and 0.85 percent of profit. Based on this worst-case evaluation, OSHA certifies that this regulation will not have a significant economic impact on a substantial number of small entities.

Comments received from the National Association of Home Builders (NAHB), the National Electrical Contractors Association (NECA) and the South Carolina Department of Transportation (SCDOT) confirm the existence of situations where: (1) federal funds for road construction are not used and (2) state regulations do not mandate adherence to the Millennium version of the MUTCD. OSHA's economic analysis both acknowledged and estimated the degree to which these situations are likely to occur. The comments did not challenge OSHA's estimates. Thus, comments received do not substantively affect the original economic analysis.

Both NAHB and NECA raised the concern that the original date of compliance could lead to a shortage of traffic control devices. Since the overwhelming majority of job sites are already required to comply with Millennium version of the MUTCD, the devices are widely available. In fact, OSHA's research indicated that devices used to comply with the 1971 MUTCD often are no longer manufactured. Thus, for some devices, compliance with the Millennium edition is much easier than compliance with the 1971 edition of the MUTCD.

Other comments also centered around August 2002 deadline for implementation. NECA suggests that such an immediate deadline could create a burden by disrupting contracts and work already in progress, since the new requirements may not have been incorporated. OSHA has addressed these concerns directly by extending the effective date. Postponement of the effective date will ensure that the cost of complying with the standard (which OSHA has estimated to be quite small) will be even smaller.

In sum, the conclusion of OSHA's original regulatory analysis remains. The cost of complying with the standard will not represent a significant impact on small or large firms. This conclusion holds even in the unlikely case where the costs come entirely in the form of a decline in profits. In many cases, firms will be able to pass on at least some of the costs, further reducing the regulatory burden. Moreover, any costs attributable to the standard are short run in nature. As old contracts expire, new contracts will incorporate the costs of the new standard directly.

This final rule, which amends Subpart G—Signs, Signals, and Barricades (29 CFR 1926.200(g)(2), 201(a), 202 and 203) has been reviewed in accordance with the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq. ). For the purposes of the UMRA, the Agency certifies that this final rule does not impose any Federal mandate that may result in increased expenditures by State, local, or tribal governments, or increased expenditures by the private sector, of more than $100 million in any year.

OSHA has reviewed this final rule in accordance with the Executive Order on Federalism (Executive Order 13132, 64 FR 43255, August 10, 1999), which requires that agencies, to the extent possible, refrain from limiting State policy options, consult with States prior to taking any actions that would restrict State policy options, and take such actions only when there is clear constitutional authority and the presence of a problem of national scope. The Order provides for preemption of State law only if there is a clear Congressional intent for the Agency to do so. Any such preemption is to be limited to the extent possible.

Section 18 of the Occupational Safety and Health (OSH) Act (29 U.S.C. 651 et seq. ) expresses Congress' intent to preempt State laws where OSHA has promulgated occupational safety and health standards. Under the OSH Act, a State can avoid preemption on issues covered by Federal standards only if it submits, and obtains Federal approval of, a plan for the development of such standards and their enforcement. 29 U.S.C. 667. Occupational safety and health standards developed by such Plan States must, among other things, be at least as effective in providing safe and healthful employment and places of employment as the Federal standards. Subject to these requirements, State-Plan States are free to develop and enforce their own requirements for road-construction safety.

Although Congress has expressed a clear intent for OSHA standards to preempt State job safety and health rules in areas involving the safety and health of road-construction workers, this final rule has only a minimum impact on the states. DOT requires compliance with the MUTCD for “application on any highway project in which Federal highway funds participate and on projects in federally administered areas where a Federal department or agency controls the highway or supervises the traffic operations.” 23 CFR 655.603(a). For this work, which represents the majority of road construction work in every State, all States must require compliance with the current edition of the MUTCD or another manual that substantially conforms to the current edition. States have been required to enforce Revision 3 or their own substantially conforming manual since 1994. DOT regulations allow States until January 2003 to adopt the Millennium Edition, or another manual that substantially conforms to the Millennium Edition. See 23 CFR 655.603(b). In addition, States must have highway safety programs that are approved by the Secretary of Transportation, even for roads that do not receive Federal aid. The Secretary is directed to promulgate guidelines for establishing these programs. 23 U.S.C. 402(a). Those guidelines state, inter alia , that programs should conform with the current edition of the MUTCD. Accordingly, most States require compliance with the latest edition of the MUTCD even on roads that receive no Federal funding. The requirements described in this document are new requirements only for the very small percentage of employers that are not already covered by the DOT regulations or corresponding State requirements. Therefore, the required state plan adoption of the provisions of Revision 3 or the Millennium Edition or an equivalent standard will also effectively impose a new regulation only on that extremely small percentage of employers. ( See economic analysis) OSHA concludes that this action does not have a significant impact on the states.

The 26 States or territories with OSHA-approved occupational safety and health plans must adopt an equivalent amendment or one that is at least as protective for employees within six months of the publication date of this final standard. These states are: Alaska, Arizona, California, Connecticut (for State and local government employees only), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New Jersey (for State and local government employees only), New York (for State and local government employees only), North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming.

This action does not impose new information collection requirements for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-30.

This document was prepared under the direction of John Henshaw, Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue, NW., Washington, DC 20210.

This action is taken pursuant to sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), section 4 of the Administrative Procedure Act (5 U.S.C. 553), section 107 of the Contract Work Hours and Safety Standards Act (Construction Safety Act), 40 U.S.C. 333, Secretary of Labor's Order No. 3-2000 (65 FR 50017), and 29 CFR part 1911.

Part 1926 of Title 29 of the Code of Federal Regulations is hereby amended as set forth below:

On February 12, 2002, we published a proposed rule (67 FR 6454) that added clarifying amendments to the regulations on OCS Oil and Gas Leasing under 30 CFR 260.114 and 260.124. The minor changes we make here to those final regulations affect persons acquiring or holding deepwater oil and gas leases under 43 U.S.C. 1337(a).

The intent of the DWRRA was to grant one maximum royalty suspension volume per field to jump start development of technology and resource production in the deepwater Gulf of Mexico. We have been implementing the DWRRA to be consistent with that intent by stipulating that production from all leases that were issued with royalty suspension volume terms on a field counts against the volume on which royalties are suspended for that field. Wording in the current regulation says that only production occurring after an eligible lease (one issued from 1996 through 2000 with royalty suspension terms) starts production, counts against the royalty suspension volume for the field. After the five-year window (1996 through 2000) covered by the DWRRA, we exercised our discretionary authority to issue leases, which we call royalty suspension leases (RS leases), with a definite but smaller royalty suspension volume independent of field status. Though it is unlikely, a newer RS lease could begin production before any older eligible lease on the same field. To account for that possibility, we need to change the regulation in two places to ensure that the total royalty suspension volume on a field does not surpass the levels set by Congress in the DWRRA.

In 30 CFR 260.114(d), we adjust the scope of the field subject to rules governing use of the field's royalty suspension volume so that it can consist of more than eligible (DWRRA-era) leases. We do this by striking the qualifying phrase “consisting only of eligible leases” from the reference to the kind of field on which production from an eligible lease establishes the field's royalty suspension volume. We continue the practice of not counting against the field's royalty suspension volume any production from a lease on the field that was not issued with royalty suspension terms. In the same subparagraph, we also add a phrase to specify that the water depth of the deepest eligible lease on the field when an eligible lease starts production determines the size of the field's royalty suspension volume.

We change 30 CFR 260.124(b)(1) by striking the word “remaining” from the phrase describing the situation in which the production on an RS lease that is subject to royalty suspension counts as part of the field's royalty suspension volume. This change ensures that all such production on an RS lease issued with a definite royalty suspension volume (after the five-year DWRRA window), not just production occurring after an eligible lease starts production, counts as part of the field's royalty suspension volume.

For example, suppose a field consists of five eligible leases and one RS lease and the RS lease has a 10-million-barrel royalty suspension volume. The RS lease begins production first and goes through its entire royalty suspension volume. When an eligible lease begins production thereafter and the field is in a water depth that has a royalty suspension volume of 87.5 million barrels, the royalty suspension volume remaining on the field is 77.5 million barrels. This results because the RS lease has already taken its 10 million barrels of royalty suspension. Thus, the field can produce royalty-free up to 87.5, not 97.5, million barrels.

This final rule makes this situation clear, so that there will be no basis to misinterpret or contest the royalty suspension volume available to eligible leases on the field.

We received two comments from one oil and gas company in response to our request for written comments on our proposed rulemaking. Copies of all written comments we received are available on our Web site at http://www.mms.gov/federalregister/PublicComments/rulecomm.htm.

Comment: The first comment suggested the rule apply only to leases issued after the final rule takes effect.

Response: The implication is that the eligible leases, later followed by RS leases issued prior to this rule, may have been acquired under the assumption that any RS lease production occurring before eligible lease production would not count against the field's RSV. However, it was fully explained in the final rule we published on January 16, 1998 (63 FR 2626), that royalty relief applies to the field upon which the leases issued under the DWRRA reside. Certainly, during this time it was envisioned that leases would be issued after 2000 that could be placed on a field that already received royalty relief. It was always intended, and we thought clear in our regulations, that all such leases, plus those issued under the DWRRA, would have to share the relief volume set forth in the DWRRA intended for new fields.

Moreover, any RS lease production is royalty free up to the lease-specific royalty suspension volume with which it was issued. Only the maximum royalty suspension volume available for eligible leases is affected, and these eligible leases were acquired before we introduced the concept of an RS lease. Thus, for these reasons, the manner in which we treat RS lease production could not have affected bidder's assumptions under which eligible leases were acquired.

Comment: The second comment requested confirmation that if an eligible lease produces before an RS lease on a field with an RS lease and five existing eligible leases, then the RS lease is still eligible to receive its volume suspension, as stipulated in the lease agreement.

Response: This final rule keeps § 260.124(b)(2) as originally written and, thus, does not change the aforementioned circumstance. RS leases get their full royalty suspension volume regardless of what eligible leases do. Such RS lease production does count against the field's suspension volume and, hence, may affect the royalty relief available to eligible leases if total production on the leases exceeds the field's royalty suspension volume.

According to the criteria in Executive Order 12866, this rule is not a significant regulatory action. The Office of Management and Budget (OMB) makes the final determination under Executive Order 12866.

a. This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, jobs, the environment or other units of government. This action avoids confusion and possible conflict in the rare situation when a deepwater RS lease, that happens to be in a field with deepwater eligible leases, is the first lease to produce in the field. This event should be rare because the eligible leases pre-date the RS lease, meaning the eligible leases were deemed the better prospect, and their owners have had more time to explore and develop their potential. Further, the royalty status only of production that occurs probably 10 or more years after the start of production on the field would be affected by this rare event because of the large size of the field suspension volumes relative to annual production on typical leases. Finally, any royalty-free production shifted from the eligible leases to the RS lease on the one or two fields where this event may occur would total only about $20 to $30 million, only a portion of which would occur in any one year.

b. This rule will not create inconsistencies with other agencies' actions because there are no changes in requirements from the existing rule.

c. This rule is an administrative change that will not affect entitlements, grants, user fees, loan programs, or their recipients. This rule has no effect on these programs or rights of the programs' recipients.

d. This rule will not raise novel legal or policy issues. This action protects the original intent of the DWRRA, should a rare and unlikely situation arise. We propose to handle this situation in a manner that is parallel to our established treatment of the same field when the normal situation of the eligible lease starting producing first occurs.

The Department certifies that this document will not have a significant economic effect on a substantial number of small entities under the RF Act (5 U.S.C. 601 et seq. ). The provisions of this rule will not have a significant economic effect on offshore lessees and operators, including those that are classified as small businesses. The rule will limit automatic royalty relief to deepwater fields to the amount established by the DWRRA, regardless of the water depth and production timing of RS leases on the field. New regulatory provisions will rarely apply and when they do will affect firms, large and small, the same way. Firm size should have no effect on whether RS or eligible leases on the same field start production first.

Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions of MMS, call toll-free (888) 734-3247. You may comment to the Small Business Administration without fear of retaliation. Disciplinary action for retaliation by an MMS employee may include suspension or termination from employment with the Department of the Interior.

This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. This rule:

a. Does not have an annual effect on the economy of $100 million or more. The proposed rule closes a possible loophole, the use of which may never be attempted. Even if a situation were to arise where this provision applies, the amount of royalties involved is a small fraction of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Oil prices are not based on the production from any one region, but are based on worldwide production and demand at any point in time. While gas prices are more localized, they correlate to oil prices. The rule does not change any existing leasing policies, so it should not cause prices to increase.

c. Does not have significant adverse effects on competition, employment, investment, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises. Leasing on the United States OCS is limited to residents of the United States or companies incorporated in the United States. This rule does not change that requirement, so it does not change the ability of United States firms to compete in any way.

The revisions do not contain any information collection requirements subject to the PRA. We will not submit a form OMB 83-I to OMB for review and approval under section 3507(d) of the PRA.

According to Executive Order 13132, this rule does not have Federalism implications. This rule does not substantially and directly affect the relationship between the Federal and State Governments. This rule may affect the collection of royalty revenues from lessees in the deepwater Gulf of Mexico, all of which is outside State jurisdiction. States have no role in this activity with or without this rule. This rule does not impose costs on States or localities. States and local governments play no part in the administration of the deepwater royalty relief programs.

According to Executive Order 12630, the rule does not have significant Takings implications. A Takings Implication Assessment is not required because the rule would not take away or restrict a bidders right to acquire OCS leases.

This rule is not a significant rule and is not subject to review by OMB under Executive Order 12866. This clarification rule does not have a significant effect on energy supply, distribution, or use because it reduces uncertainty in a rare circumstance relating to the order of drilling of different vintages of leases on a deepwater field having royalty relief. Greater certainty about how a particular sequence of drilling affects both the fields' and leases' applicable RSVs serves to focus lessee effort towards solving development and production challenges rather than to contesting the ultimate size of an already generous RSV awarded to them.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments. The rule describes the policies for OCS leases issued with different royalty suspension amounts that happen to be on the same field. A statement containing additional UMRA (2 U.S.C. 1531 et seq. ) information is not required.

According to Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA is not required.

According to the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have determined that there are no effects from this action on federally recognized Indian tribes.

In keeping with our intention to adopt a rate structure more consistent with the civilian health insurance industry practice, this rule adopts an itemized methodology for outpatient services.

Our analysis indicates that the transition from reasonable costs to reasonable charges will most likely not increase the amount of money collected for the services provided. We undertook an analysis comparing our current rate structure based on cost data with the charges based on the CHAMPUS Maximum Allowable Charge (CMAC) rates. An initial sample of 500 patient encounters was obtained from Military Treatment Facilities across all three Services from various regions. These patient encounters were priced with the national average CMAC pricing scale as well as the current all-inclusive methodology. The average of both pricing schemes found the totals to be within a ten-dollar range of each other. Thus, we anticipate billing at approximately the same aggregate level. The benefit of the change in methodology is that each bill will be much more appropriate for the actual services provided to the patient and will be itemized in the manner to which the health insurance industry is accustomed. Therefore, although it is not based on actual DoD costs (because our cost accounting systems do not have patient level specification), we believe adoption of the CMAC rates is more representative of actual costs specific to the services provided to a patient than is our current aggregated clinic visit rate.

The format of line-item charges will more closely resemble that currently used by facilities of the Department of Veterans Affairs.

This approach is also consistent with the newly enacted 10 U.S.C. 1079b, which reaffirms the authority of the Secretary of Defense to “implement procedures under which a military medical treatment facility may charge civilians who are not covered beneficiaries (or their insurers) fees representing the costs, as determined by the Secretary, of trauma and other medical care provided to such civilians.” It is the Secretary's determination that the CHAMPUS payment rates best represent the costs of providing care to all patients in Military Treatment Facilities.

This rule is based on a proposed rule published in the Federal Register March 29, 2002 (67 FR 15140-15143). We received two public comments from health insurance associations. One commenter urged that we accept a third party payer's “usual, customary, and reasonable charges” or, if under a Medigap plan, Medicare charges as reasonable charges under the Third Party Collection Program. We have not made a change to the rule in relation to this comment. Our regulation (§ 220.8(i)) includes a process for an alternative determination of reasonable charges based on similar payments made by the third party payer. In the Medigap context, the CHAMPUS rates, which form the basis of our reasonable charges, are generally quite similar to Medicare payment rates. The other commenter recommended that DoD establish through the Center for Medicare and Medicaid Services an arrangement for Medicare contractors to produce something comparable to an explanation of Medicare benefits (EOMB) that Medigap carriers could then use to facilitate the adjudication of claims from DoD for their Medigap beneficiaries. This is an interesting idea, but does not provide a basis for any change to the regulation. A third party payer's obligation under the statute is not dependent upon the presentation of something comparable to an EOMB and there would be significant issues to address concerning the feasibility of creating such a system. Nonetheless, DoD is open to exploring this idea further.

We have made only minor changes to the proposed rule, such as to adjust the effective dates for implementing the reasonable charges billing rates under § 220.8 in order to assure effective implementation.

We have reviewed this rule in accordance with the provisions of Executive Order of 12866, the Congressional Review of Agency Rulemaking Act (5 U.S.C. 801-808), and the Regulatory Flexibility Act (5 U.S.C. 601-612). This rule has been designated as a significant rule and has been reviewed by the Office of Management and Budget as required under the provisions of Executive Order 12866. It is not a significant regulatory action or a major rule, and it would not have a significant impact on a substantial number of small entities. Nor does this rule affect matter addressed by the Unfunded Mandates Reform Act (Pub. L. 104-4) or Executive Order 13132 concerning Federalism. Also, this rule does not involve new information collection requirements under the Paperwork Reduction Act (44 U.S.C. chapter 35). This rule will align DoD closer to civilian industry practices for healthcare billing and collections; it will have no significant economic or regulatory impact on any entity.

For the reasons stated in the preamble, 32 CFR part 220 is amended as follows:

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The USS CONSTELLATION will be towed “dead ship,” which means that the vessel will be underway without the benefit of mechanical or sail propulsion. For this reason it is imperative that there be a clear transit route and a safe buffer zone around the USS CONSTELLATION and the vessels towing her. In addition, the Coast Guard expects a large spectator fleet. For safety concerns, it is in the public interest to have a safety zone in place for the event, since immediate action is needed to protect mariners against potential hazards associated with the turn-around of the USS CONSTELLATION.

The USS CONSTELLATION Museum is sponsoring its annual “turn-around” of the historic sloop-of-war USS CONSTELLATION in Baltimore, Maryland. The event is part of the ongoing maintenance and care of the ship, making sure that it weathers evenly on both sides. Planned events include the “dead ship” tow of the USS CONSTELLATION and an onboard salute with navy pattern cannon while off Fort McHenry National Monument and Historic Site.

The Coast Guard anticipates a large recreational boating fleet during this event. Operators should expect significant vessel congestion along the planned route.

The purpose of this rule is to promote maritime safety and protect participants and the boating public in the Port of Baltimore immediately prior to, during, and after the scheduled event. The rule will provide for a clear transit route for the participating vessels, and provide a safety buffer around the participating vessels while they are in transit. The rule will impact the movement of all vessels operating in the specified areas of the Port of Baltimore.

Interference with normal port operations will be kept to the minimum considered necessary to ensure the safety of life on the navigable waters immediately before, during, and after the scheduled event.

The historic sloop-of-war USS CONSTELLATION is scheduled to conduct an annual “turn-around” on September 13, 2002. The USS CONSTELLATION is scheduled to be towed from its berth, to Fort McHenry, and return, along a route of approximately 2.5 nautical miles (5 nautical miles total) that includes specified waters of the Inner Harbor, Northwest Harbor and Patapsco River.

The safety of dead ship tow participants requires that spectator craft be kept at a safe distance from the intended route during these vessels' movement. The Coast Guard proposes establishing a temporary moving safety zone around the USS CONSTELLATION annual “turn-around” participants on September 13, 2002 to ensure the safety of participants and spectators immediately prior to, during, and following the dead ship tow.

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

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

The primary impact of this rule will be on vessels wishing to transit the affected waterways during the USS CONSTELLATION annual turn-around on September 13, 2002. Although this rule prevents traffic from transiting a portion of the Inner Harbor, Northwest Harbor, and Patapsco River during these events, that restriction is limited in duration, affects only a limited area, and will be well publicized to allow mariners to make alternative plans for transiting the affected area.

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.

This rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to operate or anchor in portions of the Inner Harbor, the Northwest Harbor, and the Patapsco River in the Port of Baltimore, Maryland. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this rule will be in effect for a limited duration, affect only limited areas, and allow vessel traffic to pass safely around the safety zone. Before the effective period, we will issue maritime advisories widely available to users of the river to allow mariners to make alternative plans for transiting the affected areas.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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

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

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we 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. By controlling vessel traffic during this event, this rule is intended to minimize environmental impacts of increased vessel traffic during the transits of event vessels. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

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

We are taking direct final rulemaking action to approve a State Implementation Plan (SIP) revision submitted by the Governor of Utah on December 7, 2001. This SIP revision updates Utah's rule R307-110-34 and section X, Vehicle Inspection and Maintenance Program, Part D, Utah County, which satisfies one of the conditions of our June 9, 1997 interim approval of Utah County's improved vehicle I/M program, effective December 30, 1997 (62 FR 31349 and 63 FR 414). The other condition of our interim approval was submittal of a demonstration that Utah County's decentralized I/M program can obtain the same emission reduction credits as a centralized I/M program. Utah submitted this demonstration on May 20, 1999. These submittals meet the requirements of section 348 of the National Highway System Designation Act (NHSDA), which allows States to claim additional credit for their decentralized I/M programs. Utah County implements a test and repair I/M network and has demonstrated that its program achieves the same effectiveness as a test-only network and qualifies for full credit under the NHSDA.

On November 6, 1991, we designated Utah County, Utah as a moderate non-attainment area for the carbon monoxide (CO) National Ambient Air Quality Standard (NAAQS) (56 FR 56694). Therefore, under section 182 of the Clean Air Act (Act) Utah County is required to implement an I/M program that is at least as effective as the Federal Basic I/M performance standard as specified in 40 CFR 51.352. Vehicle I/M programs are designed to reduce motor vehicle emissions by requiring vehicles to periodically pass a tailpipe emissions test or, depending on the model year of the vehicle, a check of the On-Board Diagnostic (OBD) system. Vehicle emissions are reduced when vehicles are repaired in order to pass these tests.

Utah County's improved vehicle I/M program is a basic, decentralized, test and repair network. The network consists of 140 permitted stations which test all 1968 and newer model year light duty vehicles, light duty trucks, and heavy duty trucks registered in Utah County. Motorcycles, electric powered vehicles, farm vehicles and equipment, construction equipment and other off-road vehicles are exempt from the I/M program. The program also includes technician training, I/M repair station certification, illegal registration investigation, repair effectiveness assessments, stringent waiver requirements, and remote sensing program implementation. Utah County also implements an anti-tampering component of the I/M program which entails checking the air pump systems, catalytic converters, exhaust gas re-circulation (EGR) valves, evaporative systems, positive pressure crankcase valves (PCV), and gas caps. Utah County's improved vehicle I/M program exceeds the Federal Basic I/M performance standard established in 40 CFR part 51, subpart S (“Inspection/Maintenance Program Requirements for CO non-attainment areas.”)

When areas submit SIPs for our approval, we evaluate the effectiveness of the control measures and determine the amount of emissions that can be reduced upon full implementation of these measures. The more effective the I/M program, the more credit we would give a State towards achieving the emissions reductions needed to show attainment or maintenance.

We allow States to customize their I/M program and award different credits for different programs. Audits conducted by the General Accounting Office in 1991, revealed that decentralized programs (test and repair networks) were not as effective as centralized programs (test-only networks). This was due to higher tampering rates and the inherent conflict of interest in allowing garages to inspect their own emission repairs. When we released the mobile emissions model, Mobile5, we automatically discounted the amount of emissions reduction credit areas could claim for decentralized I/M programs by 50%. This 50% emission reduction credit is the default value in Mobile5.

On June 9, 1997, we published in the Federal Register an interim final rule (62 FR 31349) approving Utah County's improved I/M program SIP revision, submitted March 15, 1996. This March 15, 1996 SIP revision was submitted under the authority of both the NHSDA and the Act. The effective date of this rule was later corrected to December 30, 1997 to be consistent with the Congressional Review Act (63 FR 414). The NHSDA included a key change to our previously developed I/M program requirements. Section 348 of the NHSDA allows I/M programs to bypass the 50% emissions reduction credit that is automatically given to decentralized I/M programs. Instead, on the basis of a good faith estimate by a State, the NHSDA allows for presumptive equivalency of such decentralized networks to the benchmark of centralized programs. Under section 348 of the NHSDA, we are required to grant interim approval to such decentralized programs, for an 18-month period, at the end of which each affected state must submit an evaluation of the actual effectiveness of the improved program.

Our June 9, 1997, interim final rule (62 FR 31349) established two requirements that Utah County would have to meet before we would grant full final approval of Utah County's improved I/M program:

(a) The submittal of an evaluation confirming that the program achieved the appropriate amount of program credit claimed by the State/County, and

(b) The submittal of final program regulations for our approval.

As noted above, pursuant to section 348 of the NHSDA, in March of 1996, Utah submitted a “good faith estimate” to support its claims for 100% emissions reduction credit for its decentralized test and repair program, when compared to a centralized test-only network. Section 348 of the NHSDA required Utah to submit a demonstration, based upon program data collected during the interim approval period, to support its good faith estimate and to demonstrate that the credits claimed for the decentralized program were appropriate. On May 20, 1999, Utah submitted a report to us entitled, “Evaluation of the Utah County Inspection/Maintenance Program,” that describes Utah's efforts to ensure that the program is operating as effectively as originally proposed.

Utah's evaluation compares Utah County's decentralized I/M program to Phoenix, Arizona's centralized I/M program. The first step was for Utah County to develop a correlation between a two-speed idle test, used in Utah County, and an I/M240 test, as implemented in Phoenix. Utah County procured 454 vehicles and subjected them to an I/M240 test in a laboratory from December 1998 through May 1999. Then, they took the two-speed idle test results from September 1997 through December 1998 from Utah County's database. Using “Development of a Proposed Procedure for Determining the Equivalency of Alternative Inspection and Maintenance Programs,” prepared for U.S. EPA, by Sierra Research, July 22, 1997, and a memo from Lee Cook, Regional and State Programs Division, Office of Mobile Sources, to I/M Stakeholders titled, “Guidance on Alternative I/M Program Evaluation methods,” Utah was able to develop a correlation between the two different tests and calculate an average emissions level. Next, Utah took a random, 2% sample of Phoenix's database, from 1997, converted the data to correct for altitude, fuel, and calendar year, and calculated an average emissions level. Utah was then able to calculate and compare the benefits of each I/M program using Mobile5.

The results of the analysis show that for light duty gasoline vehicles, the Utah County emission estimates are similar to Phoenix's emission estimates and the percent emission reductions are comparable. Utah's evaluation contains audit results of Utah County's program in Appendix A, “Utah County's Environmental Council of the States (ECOS)/State and Territorial Air Pollution Program Administrators (STAPPA) I/M Evaluation Factor Results.” ECOS/STAPPA conducted both overt and covert audits of Utah County's program. Overt, or administrative, audits consisted of verifying certifications, documentation and calibration of test equipment. The results of the overt audits showed that centralized networks faired better than decentralized networks. However, none of the infractions were of a serious nature. Types of problems encountered were analyzer malfunctions, printer ribbons needing to be changed, and missing emission manuals. All infractions were corrected upon written or verbal correction notices.

The covert, or undercover, audits consisted of setting the vehicle to fail beforehand by removing the catalytic converter, or tampering with the air system, and taking the vehicle to be tested. The test-only stations passed failing vehicles 31% of the time, whereas the test and repair stations passed failing vehicles or performed improper repairs only 16% of the time. ECOS/STAPPA concluded that based on these audits, there is no difference between the emissions inspections performed by either type of testing facility.

Utah County has demonstrated that its decentralized I/M program provides equal emission reductions when compared to a centralized test-only program. Utah submitted this analysis to us on May 20, 1999. We find Utah's analysis to be adequate and conclude that 100% credit is appropriate. 1

Section 110(k) of the Act addresses our action on submissions of revisions to a SIP. The Act requires States to observe certain procedural requirements in developing SIP revisions for submittal to us. Section 110(a)(2) of the Act requires that each SIP revision be adopted by the State, after reasonable notice and public hearing, and prior to the revision being submitted by a State to us.

The Utah Air Quality Board (UAQB) held a public hearing on June 21, 2001, to include Rule R307-110-34 and section X, Vehicle Inspection and Maintenance Program, Part D, Utah County in the Utah SIP. The UAQB adopted the revisions on August 1, 2001. This SIP revision became State effective on October 2, 2001, and was submitted by the Governor of Utah to us on December 7, 2001.

We have evaluated the Governor's submittal and have determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the Act. As required by section 110(k)(1)(B) of the Act, we reviewed the SIP revision materials for conformance with the completeness criteria in 40 CFR part 51, appendix V and determined that the Governor's submittal was administratively and technically complete. We sent our completeness determination on February 20, 2002 (letter from Jack W. McGraw, Acting Regional Administrator, to Governor Michael O. Leavitt).

Utah's Rule R307-110-34 and section X, Vehicle Inspection and Maintenance Program, Part D, Utah County, consist of program improvements such as technician training, I/M repair station certification, illegal registration investigation, repair effectiveness assessments, stringent waiver requirements, and remote sensing program implementation. Furthermore, Utah County has improved their vehicle I/M program by changing to Utah 2000 analyzers for emissions, requiring emission inspectors to check the On-Board Diagnostic (OBD) systems in 1996 and newer vehicles, and downloading data daily from the emission analyzers. We have reviewed the State's submittal and find that it meets our requirements for a Basic I/M program as well as the requirements of section 348 of the NHSDA. We note that the Governor's December 7, 2001, submittal supercedes and replaces the version of Utah County's I/M program that we approved on March 8, 1989 (54 FR 9796). The Governor had submitted other revisions to R307-110-34 prior to December 7, 2001, that we never approved and note that the Governor's December 7, 2001, submittal also supersedes and replaces these other revisions to R307-110-34.

We are approving the State of Utah's December 7, 2001 SIP submittal which consists of a revision to Utah's Rule R307-110-34 and section X, Vehicle Inspection and Maintenance Program, Part D, Utah County. We are also approving the State's May 20, 1999 demonstration that its decentralized I/M program is capable of achieving emissions reductions equivalent to a centralized I/M program. With our approval of these submittals, our June 9, 1997, interim approval of Utah County's improved vehicle I/M program becomes a full approval, and Utah County can claim 100% emissions reduction credit for their improved vehicle I/M program.

We are publishing this rule without prior proposal because we view this action as a noncontroversial amendment and anticipate no adverse comments. However, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective November 12, 2002 without further notice unless the Agency receives adverse comments by October 15, 2002. If we receive adverse comments, we will publish a timely withdrawal of the direct final rule, in the Federal Register , informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. If no such comments are received, the public is advised that this rule will be effective on November 12, 2002, and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 12, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

You may be potentially 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-2002-0226. 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, 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.

EPA, on its own initiative, in accordance with sections 408(e) and 408 (l)(6) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, is establishing tolerances for residues of the fungicide thiophanate-methyl and its metabolite (methyl 2-benzimidazoyl carbamate (MBC)), in or on citrus at 0.5 part per million (ppm), and blueberry at 1.5 ppm. These tolerances will expire and are revoked on June 30, 2004. EPA will publish a document in the Federal Register to remove the revoked tolerances from the Code of Federal Regulations.

Section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on section 18-related tolerances to set binding precedents for the application of section 408 and the new safety standard to other tolerances and exemptions. Section 408(e) of the FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” This provision was not amended by the Food Quality Protection Act (FQPA). EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

Citrus . Post-bloom fruit drop (PFD) poses a significant economic threat to the citrus industry throughout the humid, subtropical areas of the U.S. (including Florida and Louisiana). Benomyl, which has historically been used to manage PFD in citrus, was recently canceled by the registrant, and available alternatives do not provide effective control. Significant economic losses are expected without the requested use of thiophanate-methyl. EPA has authorized under FIFRA section 18 the use of thiophanate-methyl on citrus for control of PFD fruit drop disease in Florida and Louisiana. After having reviewed the submissions, EPA concurs that emergency conditions exist for these States.

Blueberries . Benomyl has historically been used in blueberry production to control several important fungal pathogens, including Phomopsis Twig Blight and Canker ( Phomopsis vaccinii ), Fusicoccum Canker ( Fusicoccum putrefaciens ), Botryosphaeria Blight ( Monilinia vaccinii-corymbosi ), Anthracnose Fruit Rot ( Colletotrichum acutatum ), Mummy Berry Disease ( Botryosphaeria dothidea ). The registrant's recent cancellation of benomyl has left blueberry growers without sufficient means to control these diseases, as available alternatives do not provide adequate control. Significant economic losses are expected without the requested use of thiophanate-methyl. EPA has authorized under FIFRA section 18 the use of thiophanate-methyl on blueberries for control of a variety of important blueberry diseases in Connecticut, Indiana, Michigan, New Jersey, New York, Ohio, and Pennsylvania. After having reviewed the submissions, EPA concurs that emergency conditions exist for these States.

As part of its assessment of this emergency exemption, EPA assessed the potential risks presented by residues of thiophanate-methyl in or on citrus and blueberry. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is establishing these tolerances without notice and opportunity for public comment as provided in section 408(l)(6). Although these tolerances will expire and are revoked on June 30, 2004, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on citrus and blueberry after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the residues do not exceed the level that was authorized by these tolerances at the time of that application. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because these tolerances are being approved under emergency conditions, EPA has not made any decisions about whether thiophanate-methyl meets EPA's registration requirements for use on citrus and blueberry or whether permanent tolerances for these uses would be appropriate. Under these circumstances, EPA does not believe that these tolerances serve as a basis for registration of thiophanate-methyl by a State for special local needs under FIFRA section 24(c). Nor do these tolerances serve as the basis for any State other than those listed above to use this pesticide on these crops under section 18 of FIFRA without following all provisions of EPA's regulations implementing section 18 as identified in 40 CFR part 166. For additional information regarding the emergency exemption for thiophanate-methyl, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT .

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of thiophanate-methyl and to make a determination on aggregate exposure, consistent with section 408(b)(2), for time-limited tolerances for residues of thiophanate-methyl in or on citrus and blueberry at 0.5 and 1.5 ppm, respectively. The most recent estimated aggregate risks resulting from the use of thiophanate-methyl, are discussed in the Federal Register of August 28, 2002 (67 FR 55137) (FRL-7192-1), final rule establishing tolerances for residues of thiophanate-methyl in/on grape, pear, potatoe, canola, and pistachio, because in that prior action, risk was estimated assuming tolerance level residues in all commodities for established tolerances, as well as those being proposed, such as the citrus and blueberry exemption uses. Refer to the August 28, 2002 Federal Register document for a detailed discussion of the aggregate risk assessments and determination of safety. EPA relies upon that risk assessment and the findings made in the Federal Register document in support of this action. Below is a brief summary of the aggregate risk assessment.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. A summary of the toxicological dose and endpoints for thiophanate-methyl for use in human risk assessment is discussed in Unit III. of the final rule mentioned above, published in the Federal Register of August 28, 2002 (67 FR 55137).

For thiophanate-methyl, the Agency recently modified the tolerance expression, so that the residues to be regulated in plant and animal commodities for purposes of tolerance enforcement will consist of the residues of thiophanate-methyl and its metabolite MBC, expressed as thiophanate-methyl. Exposure from the use of benomyl, another pesticide which degrades under environmental conditions to MBC was not included in this assessment because the only basic registrant of benomyl requested voluntary cancellation of all benomyl-containing products in April 2001. Product cancellations were effective in early 2001 with sales and distribution of benomyl containing products ending by December 31, 2001. However, the Agency conducted a dietary assessment using U.S. Department of Agriculture Pesticide Data Program (PDP) monitoring data for benomyl, measured as MBC to estimate residues of thiophanate-methyl because MBC is a common metabolite of both benomyl and thiophanate-methyl. PDP data were available for apples, bananas, beans, cucurbits, peaches, and strawberries. The PDP analytical method employs a hydrolysis step that converts any benomyl present to MBC. MBC is then quantitated and corrected for molecular weight, and results are measured as the sum of benomyl and MBC. Therefore, using MBC data to estimate thiophanate-methyl residues may be a conservative approach in that it may overestimate thiophanate-methyl residues.

EPA assessed risk scenarios for thiophanate-methyl under acute, chronic, and short- and intermediate-term exposures.

The Dietary Exposure Evaluation Model (DEEM) TM analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity.

For the acute exposure assessments, maximum percent crop treated estimates and anticipated residue estimates were used. Using these exposure assumptions, EPA concluded that acute dietary exposure to thiophanate methyl uses 10% of the aPAD for the general U.S. population and 25% of the acute Population Adjusted Dose (aPAD) for the most highly exposed population subgroup of concern, infants, (less than 1 year). For MBC, the acute dietary risk estimate uses 4% of the aPAD for the general U.S. population and 89% of the aPAD for the population subgroup of concern, infants, (less than 1 year). The total thiophanate-methyl plus MBC acute dietary risk estimate for the only population subgroup of concern, females (13-50 years) uses 51% of the aPAD. The drinking water assessment, based on simultaneous dietary exposure to both MBC and thiophanate-methyl which was converted to MBC equivalents resulted in the following Drinking Water Levels of Concern (DWLOCs): Infants (less than 1 year) 18 ppb; children (1-6 years) 57 ppb; females (13-50 years) 150 - 170 ppb; and general U.S. population 5,700 ppb. The lowest DWLOC for the population subgroup, infants (less than 1 year) does not exceed the Estimated Environmental Concentration (EEC) for ground water (0.033 ppb); however, the DWLOC does exceed the EEC for surface water (25 ppb). Although the EEC is exceeded, the DWLOC is greatly inflated as 50% of the aPAD percentage is consumed by citrus which is a limited emergency use only. When citrus is removed from the DWLOC estimation, the DWLOC becomes 94 ppb which is well above the EEC of 25 ppb. The DWLOC is significantly lowered by the addition of citrus because field trial data was used which results in an overly conservative estimation.

Another indication that the addition of citrus based on field trial data results in an over estimation is the fact that benomyl PDP data available for citrus indicated that there were zero hits out of 689 Florida samples of orange juice. These data were not used to refine the DWLOC estimation as the benomyl application rate is somewhat lower than the rate approved for thiophanate methyl in this year's emergency exemption. However, the Agency believes that most growers used the previously registered benomyl rate, because the emergency exemption was approved later in the use season and thus fewer applications than were authorized were actually used. Furthermore, if the higher rate were used, the impact would be lessened by the fact that juice is a blended commodity. Therefore, although the DWLOC is exceeded, the acute dietary risk from food and water does not exceed the Agency's level of concern.

For the chronic exposure assessments, average residues from field trial data and average percent crop treated estimates were used.

Using these exposure assumptions, EPA has concluded that exposure to thiophanate-methyl and MBC will utilize the following percentages of the chronic Population Adjusted Dose (cPAD) for the U.S. population: Thiophanate-methyl - 0.7%; MBC - 1.0% and total thiophanate-methyl plus MBC - 1.7%. The major identifiable subgroup with the highest aggregate exposure is children (1-6 years) and EPA has concluded that aggregate dietary exposure to thiophanate-methyl and MBC will utilize the following percentages of the cPAD: thiophanate- methyl - 2.3%; MBC - 26% and total thiophanate-methyl plus MBC - 28%. EPA generally has no concern for exposures below 100% of the cPAD because the cPAD represents the level at or below which daily aggregate dietary exposure over a lifetime will not pose appreciable risks to human health. The aggregate chronic DWLOCs are as follows: 858 ppb for the general U.S. population; 69 ppb for females (13-50 years); 22 ppb for infants (less than 1 year); and 18 ppb for children (1-6 years). The aggregate surface water EEC for thiophanate-methyl is 0.7 ppb; 14 ppb for MBC and 14.7 ppb for thiophanate-methyl plus MBC. Therefore, the chronic aggregate risks do not exceed the Agency's level of concern.

Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Thiophanate-methyl and MBC are currently registered for use that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and short-term exposures for thiophanate-methyl and MBC.

All residential exposures are considered to be short-term. The Margins of Exposure (MOEs) (converted to MBC equivalents) for aggregate short-term exposure to thiophanate-methyl are as follows: Oral exposure of children (1-6 years) is 670; dermal exposure of children (1-6 years) is 1,000; and dermal exposure of females (13-50 years) is 1,315. The MOEs for aggregate exposure to MBC from the use of MBC as an in-can preservative are 670 for dermal exposure and 770 for exposure via inhalation. The MOEs (converted to MBC equivalents) for the total thiophanate-methyl and MBC aggregate exposure are as follows: 630 for oral and dermal exposure of children (1-6 years); 770 for exposure via inhalation for females (13-50 years); and 620 for oral and dermal exposure for females (13-50 years). Although the MOEs below 1,000 exceed the Agency's level of concern, when considering the conservative method of exposure estimation previously discussed, and the negotiated risk mitigation whereby the registrant has agreed to conduct hand-press studies to help refine this assessment, the risks do not exceed the Agency's level of concern.

Aggregate cancer risk for U.S. population . The total thiophanate-methyl and MBC dietary cancer risk is 8.5 x 10 -7 for existing and new uses. The cancer risk from non-occupational residential exposure is 3.7 x 10 -7 . The aggregate cancer risk is 1.2 x 10 -6 . This risk estimate includes cancer risk from both thiophanate-methyl and MBC on food including all pending uses and section 18 uses, thiophanate-methyl exposure from treating ornamentals, thiophanate-methyl exposure from performing post-application lawn activities, and exposure from applying paint containing MBC. This is considered to be a high-end risk scenario since it is not expected that someone would treat ornamentals, perform high exposure post-application activities, and apply paint containing MBC every year for 70 years. Therefore, this estimate is considered to be a conservative estimate. Additionally, the cancer risk estimate based on the highest EEC (thiophanate-methyl plus MBC EEC) is 9.6 x 10 -7 . This is also a very high-end risk estimate as it is based on the maximum rate being applied every season for 70 years. Thus, food plus water (assuming that the modeled surface water EEC is equivalent to concentrations in finished drinking water) plus non-occupational residential cancer risk is 2.2 x 10 -6 which is still within the range considered as negligible. In addition, the cancer risk estimates using benomyl/MBC PDP monitoring data to estimate thiophanate-methyl residues are below 1 x 10 -6 for thiophanate-methyl existing uses, new uses, and the amortized section 18 use on citrus and blueberry. Therefore, the risks do not exceed the Agency's level of concern.

Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to thiophanate-methyl and MBC residues.

Adequate enforcement methodology is available to enforce the tolerance expression. The method may be requested from: Calvin Furlow, PIRIB, IRSD (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-5229; e-mail address: furlow.calvin@epa.gov .

The Codex Alimentarius Commission has established maximum residue limits (MRLs) for thiophanate-methyl residues in/on various plant and animal commodities. Codex MRLs for thiophanate-methyl are currently expressed as MBC. The Codex MRL residue definition and the U.S. tolerance definition, previously expressed as only thiophanate-methyl, have been incompatible and will remain incompatible even with the recent revision of the U.S. tolerance definition, since the revised tolerance definition includes both thiophanate-methyl and MBC.

A 30-day plant back interval is required for crops without labeled uses of thiophanate-methyl.

1. Citrus . Three to four applications (depending upon rate) may be made at a rate of 1.05 to 1.4 pound of active ingredient per acre (lb a.i./acre) using ground equipment. A maximum of 4.2 lb a.i./acre may be applied per year.

2. Blueberry . Up to three applications may be made at a rate of 0.7 lb a.i./acre. No more than three applications may be made, prior to the harvest of the berries; do not exceed a total of 2.1 lb a.i./acre per season.

Therefore, the tolerances are established for residues of thiophanate-methyl and its metabolite, (methyl 2-benzimidazoyl carbamate (MBC), expressed as thiophanate-methyl, in or on citrus at 0.5 ppm and blueberry at 1.5 ppm.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2002-0226 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 November 12, 2002.

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

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VII.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 the docket ID number OPP-2002-0226, 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 establishes time-limited tolerances under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 exemption under FFDCA section 408, such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers, and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

EPA Region 5 is publishing this direct final notice of deletion of the Republic Steel Quarry Superfund Site from the NPL.

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

Because EPA considers this action to be noncontroversial and routine, EPA is proceeding without prior publication of a notice of intent to delete. This action will become effective November 12, 2002, unless EPA receives adverse comments by October 15, 2002, on this document. If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

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

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

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

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

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

Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the deleted site above levels that allow for unlimited use and unrestricted exposure, CERCLA section 121(c), 42 U.S.C. 9621(c) requires that a subsequent review of the site be conducted at least every five years after the initiation of the remedial action at the deleted site to ensure that the action remains protective of public health and the environment. If new information becomes available which indicates a need for further action, EPA may initiate remedial actions. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Site:

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

(2) The State of Ohio concurred with deletion of the Site from the NPL.

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

(4) The EPA prepared a site deletion docket which contain copies of documents supporting the deletion. The site deletion docket has been placed in the Site information repositories identified above.

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

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

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

The Republic Steel Quarry (RSQ) Site is located in the City of Elyria, Ohio, and is situated east of West River Road and west of the west branch of the Black River. The City of Elyria is located southwest of Cleveland in Lorain County in northeastern Ohio, and can be found on the Grafton USGS quadrangle map in Township 6 North, Range 17 West. The Site consists of a four-acre water-filled quarry that is surrounded by seven acres of densely vegetated land. A fence now surrounds the Site perimeter. The water depth of the quarry is approximately 60 feet and the sides of the quarry rise to about 25 feet above the water surface. The quarry walls are formed by Berea Sandstone at and below the quarry water level. Above the Berea Sandstone, the walls consists of large vertically stacked sandstone blocks that were used as retaining walls during quarrying operations. Water from the quarry discharges via an outlet directly into the Black River.

The RSQ Site was operated as a sandstone quarry during an unknown period of time prior to 1950. From 1950 to 1975, the Republic Steel Corporation discharged about 200,000 gallons per day of waste pickle liquor and rinse water from steel pickling operations to the quarry. The waste pickle liquor, consisting largely of sulfuric acid and dissolved metal oxides, was pumped through an aboveground pipe to a ditch which flows into the quarry. Republic Steel Corporation was later acquired by LTV Steel Corporation, which is presently operating the steel plant south of the quarry. In 1976, the discharge ditch leading to the quarry was dammed. The City of Elyria purchased the quarry and the seven surrounding acres of land from Republic Steel Corporation in 1977, with the intention of establishing a municipal park on the property in the future. In 1983, a site investigation by the U.S. EPA Field Investigation Team (FIT) detected heavy metals in the groundwater. The Site was subsequently proposed for the National Priorities List (NPL). Both the City of Elyria and LTV Steel Corporation challenged the Site's placement on the NPL, which was finalized in 1986 and later upheld by the court in 1990. A Remedial Investigation (RI), conducted between 1987 and 1988, indicated that onsite soils were contaminated. To a lesser degree, the groundwater, quarry sediments and surface water, and potentially fish tissue had also been impacted. A Record of Decision (ROD) memorializing the selected remedial action (RA) for the Site was issued in September 1988. The ROD determined that the focus of the RA would be the excavation and disposal of contaminated soil. In addition to the soil removal, the ROD called for further studies of fish tissue and groundwater, which were to be addressed in a Supplemental Investigation for the Site. Both components of the RA were completed in 1990. In 1993, EPA entered into a settlement with LTV Steel in bankruptcy court. The U.S. EPA settled with the City of Elyria in 1993.

The RI revealed that all contamination caused by Republic Steel's disposal practices was limited to quarry sediments, the pickle liquor discharge ditch and several soil locations around the quarry's edge. As part of the RI, a baseline risk assessment was performed in which human health risks were evaluated with respect to carcinogenic and noncarcinogenic risk under various current and future exposure scenarios. The risks were driven by carcinogenic polynuclear aromatic hydrocarbons (cPAHs) and heavy metals—the major Site contaminants. Both the quarry and the Black River, which borders the Site on the east, are used for recreational purposes such as swimming and fishing. Drinking water is currently supplied to surrounding residents via the City of Elyria municipal water supply system.

A Feasibility Study (FS) typically succeeds the RI and is conducted to determine the best approach to cleaning up a site using nine specific criteria. An FS was not conducted for this Site because the contaminants exceeding risk-based action levels in the soils were limited in volume and distribution to specific areas or hotspots. The contaminated sediments are confined to the quarry bottom and are not readily accessible to humans, except via the fish consumption pathway. In addition, the groundwater was not being used as a potable water source.

The ROD was issued in September 1988 and prescribed the excavation and removal of 100 cubic yards of combined sediment and soils exceeding an Action Level of 300 ppb for cPAHs. These soils were primarily located in the pickle liquor discharge ditch and the boat ramp areas around the southern edge of the quarry. The quarry and the surrounding land were to be fenced. The ROD also specified that a fish species survey, fish tissue bioassays and groundwater resampling be conducted during a Supplemental Investigation in order to recalculate the risks using actual fish tissue data and more recent groundwater data. Since groundwater at the time was not used as a potable water supply, nor was it expected to be used in the future, the ROD did not include groundwater treatment. The contaminated quarry sediments were to be left in place since they lay below the mixing zone and fish were not likely to come in contact with them. U.S. EPA further concluded that quarry remediation would likely entrain contaminated sediments in the water, thereby increasing the likelihood of exposure to the contaminants by fish. Humans consuming the fish would also be subject to increased risk.

As part of RI process, a baseline risk assessment was conducted for the Site. The assessment considered all exposures likely to result from current and future uses of the Site. For current uses, such as trespassing, recreational fishing and swimming, one exposure scenario—the ingestion of fish from the quarry, produced significant carcinogenic and noncarcinogenic risks. Significant carcinogenic and noncarcinogenic risks are respectively defined as an upper bound excess lifetime cancer risk exceeding 1 × 10  −6 and a Hazard Index (HI) exceeding one. The maximum carcinogenic risks were driven by the potential uptake of cPAHs and mercury from the quarry sediment to fish tissue. These risks were determined to be nearly four times greater, or 4 × 10  −6 , than the above-stated thresholds for significant carcinogenic risk.

Under future use conditions, the RI baseline risk assessment of residential exposures resulted in an upper bound excess lifetime cancer risk greater than 1 × 10  −6 . This risk was driven by direct contact and incidental ingestion of soil and groundwater. With regard to the groundwater ingestion pathway, the maximum carcinogenic and noncarcinogenic respective risks, 3 × 10  −5 and an HI exceeding one, were based on the detection of methylene chloride and acetone in groundwater during the RI; however, a second sampling did not confirm their presence. These chemicals were assumed to be present for the purposes of producing a protective baseline risk assessment. The conflicting results necessitated a third sampling event which failed to detect and confirm the presence of these chemicals.

The Remedial Action (RA) was completed by U.S. EPA in 1990 and was implemented in two phases. The first phase focused on resolving the risk issues concerning groundwater and fish tissue that were raised during the RI baseline risk assessment. This involved determining the requirements for the upcoming fish/biota species survey and fish tissue bioassays, and additional groundwater monitoring for the Supplemental Investigation. The second phase involved addressing the contaminated soil and sediments.

Obtaining data for the first phase was critical because time constraints had prevented the collection and analysis of actual fish tissue samples during the RI itself. Instead, the fish tissue concentrations had to be estimated using a conservative sediment to fish tissue model that incorporated quarry sediment data collected during the RI. According to the exposure conditions in the baseline risk assessment, if the Site were not remediated, then fish caught and consumed on a regular basis from the quarry would pose an unacceptable noncarcinogenic risk to humans due to the levels of cPAHs and mercury. This risk needed to be verified using actual fish tissue samples. The tissue samples and fish species survey were further warranted because the Ambient Water Quality Criteria (AWQC), which are used to define risk-based acceptable surface water concentrations for the protection of aquatic organisms, were exceeded for mercury, manganese and copper in the quarry water. The subsequent 1990 Supplemental Investigation risk recalculation found that the previous assumptions made during the modeling of mercury and cPAHs concentrations in fish tissue, in lieu of actual data, were too conservative and unreliable. The recalculated maximum carcinogenic and noncarcinogenic risks to humans from consumption of fish tissue were based on the more recent fish tissue data obtained during the Supplemental Investigation. These risks, which were respectively revised to an upper bound excess lifetime risk of 6 × 10  −7 and a HI of one, fall within the acceptable risk range. Because the risk recalculations performed during the Supplemental Investigation confirmed that no unacceptable risks were posed to humans consuming fish from either the quarry or the Black River, U.S. EPA did not recommend to the Ohio Department of Health that a fish advisory be issued.

The additional groundwater monitoring was performed because beryllium and bis(2-ethylhexyl)phthalate had been reassigned higher cancer potency factors by U.S.EPA since the completion of the RI baseline risk assessment. During the Supplemental Investigation, the risks from groundwater were recalculated using the semi-volatile and inorganic contaminants previously identified in the RI, but omitted the two unconfirmed chemicals, methylene chloride and acetone. The carcinogenic and noncarcinogenic groundwater risks respectively increased to 3 × 10  −4 and exceeded one for the HI, due to the higher cancer potency factor assigned to beryllium and the inclusion of bis(2-ethylhexyl)phthalate as a groundwater contaminant in the recalculation. There are currently no users of groundwater at the Site or within at least one-half mile of the Site, hence there was no imminent risk presented to humans at the time from groundwater. Further, the groundwater is not expected to be used as a potable water source in the future because in-place deed restrictions prohibit the use of the groundwater on the property. This is detailed in the “Operations and Maintenance” section of this notice.

U.S. EPA performed the second phase of the RA addressing contaminated soil and sediments after the potentially responsible parties declined to perform the cleanup. U.S. EPA's Technical Assistance Team delineated the extent of soil contamination in 1989. The affected areas involved soils from the pickle liquor discharge drainage ditch and the boat launch areas at the southern edge of the quarry. In February 1990, 150 cubic yards of material were removed from these identified hotspots. In June 1990, an additional 40 cubic yards of soil from the pickle liquor ditch were removed after confirmatory sampling indicated that the RA cleanup goal of 300 ppb for cPAHs had not been achieved. The soils were to be disposed of offsite according to Resource Conservation and Recovery Act Land Disposal Restrictions (57 FR 2676). Although not specified in the ROD, the quarry and the surrounding land were to be fenced.

The cleanup standards used in the 1988 ROD were determined by risk-based chemical-specific legally applicable or relevant and appropriate requirements (ARARs). The ROD established that the cleanup should primarily focus on soils. The soil removal criterion designated that all soils for which the sum of the four cPAHs, i.e., benzo(a)anthracene, chrysene, benzo(b)fluoranthene and benzo(k)fluoranthene, exceeded 300 ppb—the Action Level for cPAHs, should be removed. This Action Level was based on a 1 × 10  −6 excess lifetime cancer risk from incidental ingestion and skin contact exposure to soil. Since the Supplemental Investigation risk recalculation of 1990, the toxicity criteria for cPAHs have been revised to less stringent values. Therefore, the excess lifetime cancer risk from exposure to cPAHs in the soils is below 1 × 10  −6 and is considered to be within the acceptable risk range. Acceptable groundwater concentrations were defined by the primary and secondary drinking water standards or maximum contaminant levels (MCLs). At the time of the RI and Supplemental Investigation, the mean and maximum concentrations of beryllium and iron exceeded their respective MCLs. Also, the mean and maximum concentrations of manganese and phenol exceeded Ohio Water Quality Standards. Since there has been no human exposure to groundwater, nor are future exposures anticipated, these contaminant levels are not considered hazardous to human health. The AWQC were used to define acceptable surface water concentrations for the protection of aquatic organisms in the quarry and the Black River. The average and maximum concentrations of manganese and mercury exceeded the AWQC for the consumption of fish, however mercury was not detected in the surface water samples. Finally, risk-based criteria for the evaluation of sediment contaminants were developed by modeling the sediment to fish tissue uptake of quarry contaminants. Mercury concentrations were calculated using a conservative sediment/water partitioning mode, hence contaminant concentrations in the water column were expected to be less than the predicted values.

The RSQ Site is currently owned and maintained by the City of Elyria. An existing state-superfund contract with the Ohio EPA indicates that Ohio EPA will assure all future Operation and Maintenance (O&M) of the RA for the expected life of the actions. To date, it has not been necessary for the Ohio EPA to directly undertake O&M activity at the RSQ Site because the City of Elyria has assumed this responsibility. The State will be responsible for O&M in any subsequent phase, if necessary. Since issuing the first Five-Year Review for the Site on September 28, 1998, the U.S. EPA and the Ohio EPA have determined that while the 1988 ROD has been protective and minimal exposure to remaining Site contaminants has occurred, the remedy needs to be expanded to include institutional control measures at the Site. The Ohio EPA further supported the application of enforceable institutional controls in order to facilitate its future O&M responsibilities at the Site. In September 2001, U.S. EPA issued an Explanation of Significant Differences (ESD) to the ROD which memorialized the addition of institutional controls and deed restrictions to the RA. Since becoming part of the RA, the implementation of the institutional controls and restrictions is also subject to O&M. As the local authority and Site owner, the City of Elyria will continue to assume responsibility for the observance of the institutional controls and deed restrictions. The City's commitment to observe and implement the institutional controls and deed restrictions is memorialized in documents which are located in the two Site information repositories and the Site Administrative Record.

From 1997 to 1998, the first statutory Five-Year Review was conducted by EPA at the Site because concentrations of contaminants exceeding health-based levels remained in the deep quarry sediments. The findings of the Five-Year Review investigation, which involved sampling of all Site media, provided the basis for recommending significant changes to the ROD. The results of the investigation indicated that while the Site has no formal use, trespassing is well established. The fence would normally limit access, however, frequent vandalism has reduced its effectiveness. The Five-Year Review risk recalculation indicated that no unacceptable onsite or offsite risks are posed to casual trespassers. This finding is consistent with the results of the 1990 Supplemental Investigation risk recalculation. Thus, while cPAH concentrations in onsite soil exceed the ROD-designated Action Level of 300 ppb in certain areas of the Site enclosed by the fence, the revised toxicity criteria for cPAHs indicate that the soil concentrations of cPAHs pose less carcinogenic risk than previously thought.

Under current Site conditions, the maximum carcinogenic risk estimate for a trespasser exposed to on-site soils is 2 × 10  7−6 . This risk was driven by the potential for ingestion of arsenic which was detected during the investigation, in the on-site soil at lower than background soil concentrations. Regular or habitual use of the quarry via swimming or fish consumption may present unacceptable noncarcinogenic risks. The potential risks from the quarry water are attributable to the presence of iron and manganese near the bottom of the 60-foot water column. It was assumed that exposure to these contaminants via swimming is negligible since swimmers are unlikely to frequent the deep water. The potential noncarcinogenic risk due to quarry fish consumption is driven by mercury in fish tissue.

Under future recreational and residential use, the groundwater consumption and soil ingestion pathways would each pose unacceptable risks. Future park patrons (children) would be at risk from soil ingestion due to arsenic and iron concentrations. Iron toxicity was not assessed in the previous risk calculations because no toxicity criteria were available at the time and iron is an essential human nutrient. The noncarcinogenic risks attributable to the groundwater ingestion pathway are due to antimony, iron, thallium, manganese and arsenic. Antimony, iron, manganese and thallium exceeded their respective MCLs in two of the monitoring wells. Arsenic and beryllium presented an unacceptable cumulative carcinogenic risk via the ingestion pathway; however, individually these contaminants did not exceed their respective MCLs. Bis(2-ethylhexyl phthalate, a contaminant previously evaluated in the Supplemental Investigation, was not included in the Five-Year Review risk recalculation because it was not detected above its MCL. The Five-Year Review investigation confirmed the 1990 Supplemental Investigation conclusion that groundwater must not be made available as a potable water source since this would present a risk to any and all users.

The Five-Year Review ecological risk assessment determined that the Black River, including the region located near the quarry discharge outfall, has not been impacted by the RSQ Site and the Ohio Water Quality Standards are being met. This finding applies to surface water, sediment, and aquatic organisms, including fish and aquatic receptors, such as piscivorus birds and terrestrial organisms inhabiting the vicinity of the Black River. The benthic organisms inhabiting the quarry sediments are currently subject to adverse impacts from the sediment contaminants, however, these impacts would be intensified by sediment remediation due to the unavoidable resuspension of contaminants.

The recommendations of the Five-Year Review for limiting or preventing such exposures included restoring the fence to functional condition, posting warning signs, and conducting monthly inspections of the fence, with increased vigilance in warm weather, to detect and repair vandalism to the fence and signs. The Review further recommended that groundwater monitoring be performed during future Five-Year Reviews to determine whether contaminant levels are increasing or decreasing in the groundwater with respect to the MCLs. However, since there are no current or anticipated future exposures to groundwater due to the availability of the Elyria municipal water supply, no human health risks are presented. The U.S. EPA recommended that the City of Elyria enact land use restrictions so that no residential development could occur and that the use of groundwater as a potable water source would be prohibited for current and future commercial/industrial or public purposes.

In response to U.S. EPA's recommendation, the City of Elyria passed an emergency Resolution of Intent on November 1, 1999 to prohibit certain uses of the Site as a result of the Five-Year Review findings. In September 2001, U.S. EPA issued an ESD to the ROD which memorialized the addition of institutional controls and deed restrictions to the RA. The ESD specifically set forth the following eight conditions: (1) Restrict property use of the to H-I (Heavy Industrial) uses only; (2) prohibit the use of groundwater as a source of drinking water; (3) require the use of the City of Elyria municipal water supply as the source of potable water for any industrial or commercial development or public use; (4) post warning signs to keep off the quarry Site; (5) maintain the perimeter fence; (6) prohibit fishing, swimming and boating in the quarry; (7) prohibit public access or use of the quarry, its sediments and soil; and, (8) conduct and sufficiently inspect the Site to ensure that the previous controls are complied with.

The City of Elyria enacted a Declaration of Restrictions for the RSQ Site on June 21, 2002, authorized by Elyria City Ordinance No. 2002-119. The Declaration institutionalized the preceding eight conditions of the ESD and will run with the land, binding all current and future owners. Should a violation of the ordinance occur, the City will be able to take the appropriate enforcement action. U.S. EPA believes that the addition of institutional controls and deed restrictions will prevent or appropriately limit human contact with the Site, thereby enhancing the remedy's overall protectiveness. The next (second) Five-Year Review is scheduled for completion by September 30, 2003. The second Five-Year Review investigation will include, but will not be limited to the collection and analysis of samples from the RSQ Site groundwater, soil, surface water and fish tissue. A Five-Year Review Report documenting the results of the remedy assessment will be made available in the Site information repositories after September 30, 2003.

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

The EPA, with the concurrence of the State of Ohio, has determined that all appropriate responses under CERCLA have been completed, and that no further response actions, under CERCLA, other than O&M and Five-Year Reviews, are necessary. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is proceeding without prior publication. This action will be effective November 12, 2002, unless EPA receives adverse comments by October 15, 2002. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and it will not take effect. EPA will prepare a response to comments and as appropriate, continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

Regulations implementing Atlantic bluefish management measures are found at 50 CFR part 648, subpart J. The regulations require annual specification of a commercial quota that is apportioned among the Atlantic coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.160. The final specifications for the 2001 Atlantic bluefish fishery set a total commercial quota equal to 9.58 million lb (4.35 million kg)(66 FR 23625; May 9, 2001). New York's quota share was calculated to be 995,204 lb (451,544 kg). However, in 2001, New York received an addition to its quota of 200,000 lb (90,704 kg) via transfers from other states under provisions at § 648.160(f). Therefore, New York's final adjusted 2001 quota was 1,195,204 lb (542,289 kg).

Section 648.160(e)(2) provides that all landings in a state shall be applied against that state's annual commercial quota. Any landings in excess of the state's quota must be deducted from that state's annual quota for the following year.

Based on dealer reports and other available information, NMFS has determined that the State of New York landed 1,411,268 lb (640,231 kg) of Atlantic bluefish in 2001, thus exceeding its 2001 adjusted commercial quota by 216,064 lb (98,033 kg). Landings for other states were below their respective quotas.

On June 6, 2002, final specifications for the 2002 commercial Atlantic bluefish became effective (67 FR 38909). Total commercial harvest was specified at 10.5 million lb (4.76 million kg). New York's share of the commercial quota for 2002 totaled 1,090,436 lb (494,753 kg). Consistent with the regulations regarding the disposition of overages, New York's 2002 Atlantic bluefish commercial quota is hereby reduced by 216,064 lb (98,033 kg) from 1,090,436 lb (494,753 kg) to 874,372 lb (396,721 kg).

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