The Oriental fruit fly, Bactrocera dorsalis (Hendel), is a destructive pest of citrus and other types of fruits, nuts, and vegetables. The short life cycle of the Oriental fruit fly allows rapid development of serious outbreaks that can cause severe economic losses. Heavy infestations can cause complete loss of crops.

The Oriental fruit fly regulations, contained in 7 CFR 301.93 through 301.93-10 (referred to below as the regulations), restrict the interstate movement of regulated articles from quarantined areas to prevent the spread of the Oriental fruit fly to noninfested areas of the United States. The regulations also designate soil and a large number of fruits, nuts, vegetables, and berries as regulated articles.

In an interim rule effective and published in the Federal Register on May 15, 2002 (67 FR 34589-34590, Docket No. 01-080-2), we amended the regulations by removing portions of San Bernardino and San Diego Counties, CA, from the list of quarantined areas and by removing restrictions on the interstate movement of regulated articles from those areas. That action relieved unnecessary restrictions on the interstate movement of regulated articles from those areas.

Comments on the interim rule were required to be received on or before July 15, 2002. We did not receive any comments. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule.

This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.

The imported fire ant, Solenopsis invicta Buren and Solenopsis richteri Forel, is an aggressive, stinging insect that, in large numbers, can seriously injure and even kill livestock, pets, and humans. The imported fire ant feeds on crops and builds large, hard mounds that damage farm and field machinery.

The imported fire ant regulations (7 CFR 301.81 through 301.81-10, referred to below as the regulations) quarantine infested States or infested areas within States and restrict the interstate movement of regulated articles from those areas to prevent the artificial spread of the imported fire ant. Regulated articles include soil, plants, and sod (§ 301.81-2).

Sections 301.81-4 and 301.81-5 of the regulations provide, among other things, that regulated articles requiring treatment prior to interstate movement must be treated in accordance with the methods and procedures prescribed in the appendix to the subpart, which sets forth the treatment provisions of the “Imported Fire Ant Program Manual.”

On April 30, 2002, we published a proposal in the Federal Register (67 FR 21183-21185, Docket No. 01-115-1) to amend the imported fire ant regulations by adding the insecticide fipronil (Chipco®) to the list of chemicals authorized for the treatment of soil, potting media, and grass sod. We also proposed to change the dosage rates for applying chlorpyrifos, a currently approved insecticide, to grass sod so that the rate would be consistent with current product labeling.

We solicited comments concerning our proposal for 60 days ending July 1, 2002. We received five comments by that date. They were from representatives of a pest control company and three State agriculture departments. Three comments supported our proposal, and two comments raised two issues, which are discussed below.

One commenter stated his concern that over-the-counter availability of fipronil would remove business from pest management professionals. The commenter's assumption that fipronil that is used in the imported fire ant quarantine program will be available over the counter is incorrect. The over-the-counter product is not labeled for imported fire ant quarantine use and thus cannot be used in the program. Certified applicators, who could include personnel at nurseries or golf courses or pest management professionals, must apply the product.

Two commenters were concerned that the use of fipronil would lead to contamination of ground water, streams, lakes, and other water resources due to the over application or misuse of fipronil. Fipronil must be applied according to the label that has been approved by the Environmental Protection Agency (EPA). When fipronil is used in accordance with the label requirements and applied by certified applicators, it is unlikely that any over application or misuse of fipronil will occur.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, without change.

This is a substantive rule that approves the use of a new chemical pesticide that may be used as an alternative to other authorized chemicals. Immediate implementation of this rule will enable those persons wishing to sell or use fipronil to benefit from its availability for treatment of the imported fire ant during the fall shipping season, which is about to begin. Therefore, pursuant to 5 U.S.C. 553, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective less than 30 days after publication in the Federal Register .

This proposed rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.

This rule amends the appendix to the imported fire ant regulations to allow the use of the insecticide fipronil (Chipco®) against the imported fire ant. Fipronil is registered by the EPA for use against imported fire ant in potting media and commercial grass sod and has been found to be efficacious against the imported fire ant based on testing by the Gulfport Plant Methods Center in Mississippi.

Determining the cost of imported fire ant treatments is complicated because of the variety of insecticides that can be used, varying soil conditions, and the various nursery crops grown. For example, in two surveys conducted by Hall and Holloway (1994 and 1995) of 37 nursery crop growers in Texas—representing over one-half of all nursery crops produced in that State—chemical cost per treatment for imported fire ant control averaged $12.10, with treatment costs making up to 4 percent of their production cost. Almost one-half ( i.e., 47 percent) of those growers reported treating for imported fire ant, and most of them reported using more than one insecticide to treat for imported fire ant in their operations (range = 1 to 3; average = 1.5), making the average cost per acre for insecticides to control imported fire ants $18.15 ( i.e., 1.5 × $12.10).

Fipronil is the latest EPA-approved insecticide to be added to the regulations for the treatment of imported fire ant. Other approved insecticides—Pyriproxyfen (Distance®, Fenoxycarb (Award®, Hydramethylnon (AMDRO®, and Bifenthrin (Talstar®—cost approximately the same in the bulk market, between $5 per pound and $12 per pound, with each pound treating 17 colonies ( i.e., mounds) of imported fire ant. An insecticide's retail price depends on the price charged by its local distributor and may vary from State to State. Although the insecticides generally do not differ greatly in price, at least some consumers can be expected to benefit from the inclusion of fipronil as an alternative treatment.

Businesses such as nurseries, sod growers, farm equipment dealers, and construction companies that work with regulated articles are the entities most likely to be affected by this rule. This rule results in a wider selection of treatment options for imported fire ant. The economic effect on affected entities is expected to either be positive, since a wider selection of insecticides will provide greater choice, or have no effect, if they choose not to use fipronil.

The Regulatory Flexibility Act requires that agencies consider the economic effects of their rules on small businesses. Based on data from the 1997 Census of Agriculture, there were 13,266 nurseries and greenhouses located in areas of the United States quarantined because of imported fire ant, of which 82 to 99 percent were small businesses, according to the U.S. Small Business Administration's criterion of annual sales of less than $750,000.

The addition of fipronil to the imported fire ant regulations provides the regulated community with a greater selection of treatment options. Thus, it is expected that the economic effect on these businesses would either be positive (a wider selection of insecticides provides greater choice) or neutral (if they choose not to use fipronil). The majority ( i.e., 82 to 99 percent) of firms that may potentially be affected by this proposed rule are small entities.

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

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. ( See 7 CFR part 3015, subpart V.)

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This final rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Direction Generale de L'Aviation Civile (DGAC), which is the airworthiness authority for France, recently notified the FAA that an unsafe condition may exist on Turbomeca S.A. Makila Models 1A, 1A1, and 1A2 turboshaft engines with modification TU 200A exhaust pipes installed. The exhaust pipe is composed of a primary exhaust pipe mounted on the engine, and an ejector pipe fixed on the primary exhaust pipe by eight attachment tabs. The DGAC advises that several reports were received of modification TU 200A exhaust pipes cracking at several of the ejector attachment tabs. This type of deterioration, if allowed to continue, can result in damage to the main rotor and tail rotor and loss of helicopter control. The DGAC issued AD T2001-301(A), dated July 3, 2001, and AD 2002-124(A), dated March 6, 2002, in order to assure the airworthiness of these Turbomeca S.A. Makila models 1A, 1A1, and 1A2 turboshaft engines in France.

This engine model is manufactured in France and is type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other Turbomeca S.A. Makila Models 1A, 1A1, and 1A2 turboshaft engines of the same type design, this AD is being issued to prevent the ejector from becoming loose from the exhaust pipe, resulting in damage to the main rotor and tail rotor and loss of helicopter control. This AD requires visual inspections of exhaust pipes for cracks and tears, upon completion of the last flight of each day and replacement of cracked and torn exhaust pipes before further flight. This action also requires as terminating action to the repetitive inspections, removal from service of modification TU 200A exhaust pipes at the next shop visit, or no later than June 30, 2003.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NE-42-AD.” The postcard will be date stamped and returned to the commenter.

This final rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

An electronic copy of this document may be downloaded by using a computer, modem, and suitable communications software from the Government Printing Office's Electronic Bulletin Board Services at (202) 512-1661. Internet users may reach the Office of the Federal Register 's home page at: http://www.nara.gov/fedreg and the Government Printing Office's database at: http://www.access.gpo.gov/nara. You can also view and download this document by going to the webpage of the Department's Docket Management System ( http://dms.dot.gov/ ). On that page, click on “search.” On the next page, type the last four digits of the docket number shown in the heading of this document. Then click on “search.”

On August 22, 2000, the Department issued a Notice of Proposed Rulemaking (NPRM) (65 FR 50946) to revise the definitions of revenue and nonrevenue passenger in 14 CFR 217.1, 241.03, and 298.2. The Department proposed to classify as revenue passengers those passengers, traveling on a ticket or voucher received as compensation for denied boarding or as settlement of a consumer complaint. Previously, these passengers were classified as nonrevenue passengers.

The proposals were intended to harmonize the Department's definitions of revenue and nonrevenue passengers with the definitions adopted by the International Civil Aviation Organization (ICAO). The proposed change in the Department's definitions would negate the need for carriers to maintain two sets of statistics to record passenger enplanements. This rule is being issued jointly by the Office of the Secretary and BTS.

Comments were received from American Airlines, United Air Lines, and Southwest Airlines. The three carriers support the Department's action to harmonize its definitions of revenue and nonrevenue passengers with ICAO's definitions. Southwest believes that common reporting guidelines will benefit airlines by allowing for greater reporting accuracy and efficiency.

However, the carriers did express concerns that the revision in the definitions could have the unintended consequence of subjecting more passengers to Passenger Facility Charges (PFCs). American Airlines points out that although a passenger may now be defined as a revenue passenger that passenger has paid no additional amounts. United Air Lines requests that the Department clarify that the change in definitions does not impact or expand the collection of PFCs by either making a statement to this effect or revising 14 CFR 158.9(a)(3).

DOT agrees with the air carriers. The sole purpose of the revisions in the definitions of revenue and nonrevenue passengers is to harmonize the classifications of passenger enplanements between the Department and ICAO. Thus, the changes adopted in this final rule are for air carrier traffic and financial reporting purposes and are not meant to expand the universe of passengers required to pay PFCs.

The following types of passengers are examples of revenue passengers: (1) Passengers traveling on publicly available tickets; (2) passengers traveling on frequent flyer awards; (3) passengers traveling on barter tickets; (4) infants traveling on confirmed-space tickets; (5) passengers traveling on vouchers as compensation for denied boarding or passengers traveling free in response to consumer complaints or claims; and (6) passengers traveling on preferential fares (Government, seamen, military, youth, student, etc. ). This list is not exhaustive and is provided for illustrative purposes only.

The following types of passengers are examples of nonrevenue passengers when traveling free or pursuant to token charges: (1) Directors, officers, employees, and others authorized by the air carrier operating the aircraft; (2) directors, officers, employees, and others authorized by the air carrier or another air carrier traveling pursuant to a pass interchange agreement; (3) travel agents being transported for the purpose of familiarizing themselves with the carrier's services; (4) witnesses and attorneys attending any legal investigation in which such carrier is involved; (5) persons injured in aircraft accidents, and physicians, nurses, and others attending such persons; (6) any persons transported with the object of providing relief in cases of general epidemic, natural disaster, or other catastrophe; (7) any law enforcement official, including any person who has the duty of guarding government officials who are traveling on official business or traveling to or from such duty; (8) guests of an air carrier on an inaugural flight or delivery flights of newly-acquired or renovated aircraft; (9) security guards who have been assigned the duty to guard such aircraft against unlawful seizure, sabotage, or other unlawful interference; (10) safety inspectors of the National Transportation Safety Board or the FAA in their official duties or traveling to or from such duty; (11) postal employees on duty in charge of the mails or traveling to or from such duty; (12) technical representatives of companies that have been engaged in the manufacture, development or testing of a particular type of aircraft or aircraft equipment, when the transportation is provided for the purpose of in-flight observation and subject to applicable FAA regulations; (13) persons engaged in promoting air transportation; (14) air marshals and other Transportation Security officials acting in their official capacities and while traveling to and from their official duties; and (15) other authorized persons, when such transportation is undertaken for promotional purpose. This list is not exhaustive and is provided for illustrative purposes only.

DOT believes that this final rule is not a revision to an information collection for the purposes of the Paperwork Reduction Act. It is not adding or removing any data items. Rather, it is changing definitions to simplify carrier reporting and preclude the need for affected air carriers to maintain two separate systems for identifying revenue and nonrevenue passengers for DOT and ICAO reporting. Under Article 67 of the 1944 Chicago Convention, the United States, as a party to the treaty, is obligated to supply certain individual U.S. air carrier data to ICAO. By harmonizing DOT's definitions of revenue and nonrevenue passengers with ICAO's definitions, DOT will be able to supply ICAO with U.S. air carrier data from DOT's own data base. U.S. carriers will not be required to submit special traffic reports in order to meet this U.S. treaty obligation. Some carriers may, however, have a one-time reprogramming task to classify, as revenue passengers, those passengers traveling on vouchers or tickets received in response to consumer complaints or as compensation for denied boardings.

In the NPRM, DOT specifically sought comments from any carrier that believed it would experience a reporting burden as a result of the change in the definitions of revenue and nonrevenue passengers. DOT did not receive any comments on this issue.

DOT does not consider this final rule to be a significant regulatory action under section 3(f) of Executive Order 12866. It was not subject to review by the Office of Management and Budget.

DOT does not consider the final rule to be significant under its regulatory policies and procedures (44 FR 11034; February 26, 1979). The purpose of the rule is to revise the Department's definitions of revenue passenger and nonrevenue passenger. This action will negate the need for air carriers to keep two sets of traffic records. Presently, air carriers maintain one set of records for tracking revenue passengers for DOT reporting purposes, and a set of records for ICAO reporting. Therefore, this action will result in a positive economic impact on reporting air carriers.

DOT analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”) and the rule will not have a substantial direct effect on the states, on the relationship between the national government and states, or on the distribution of power and responsibilities among the various levels of government. The rule does not impose substantial direct compliance costs on State and local governments or preempt state law. Thus, the BTS has determined that the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

We certify this final rule will not have a significant economic impact on a substantial number of small entities, as the total cost of the rulemaking is insignificant, although there should be a minor cost savings in harmonizing the definition of revenue passenger. There are about 100 small air carriers that report traffic data to DOT. However, the rule's most significant change is the treatment of passengers traveling on a ticket or voucher received as compensation for denied boarding. The denied boarding regulations are not applicable to small air carriers. Therefore, the final rule does not have a significant impact on small air carriers.

Under section 201 of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531), DOT assessed the effects of this final rule on State, local and tribal governments, in the aggregate, and the private sector. DOT determined that this regulatory action requires no written statement under section 202 of the UMRA (2 U.S.C. 1532) because it will not result in the expenditure of $100,000,000 in any one year by State, local and tribal governments, in the aggregate, or the private sector.

The DOT has analyzed the final rule for the purpose of the National Environmental Protection Act, and has determined that the changes will not have any impact on the quality of the human environment.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number 2139-AA07 contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

Nonrevenue passenger means: a person traveling free or under token charges, except those expressly named in the definition of revenue passenger; a person traveling at a fare or discount available only to employees or authorized persons of air carriers or their agents or only for travel on the business of the carriers; and an infant who does not occupy a seat. (This definition is for 14 CFR Part 217 traffic reporting purposes and may differ from the definitions used in other parts by the Federal Aviation Administration and the Transportation Security Administration for the collection of Passenger Facility Charges and Security Fees.)

The definition includes, but is not limited to the following examples of passengers when traveling free or pursuant to token charges:

(1) Directors, officers, employees, and others authorized by the air carrier operating the aircraft;

(2) Directors, officers, employees, and others authorized by the air carrier or another carrier traveling pursuant to a pass interchange agreement;

(3) Travel agents being transported for the purpose of familiarizing themselves with the carrier's services;

(4) Witnesses and attorneys attending any legal investigation in which such carrier is involved;

(5) Persons injured in aircraft accidents, and physicians, nurses, and others attending such persons;

(6) Any persons transported with the object of providing relief in cases of general epidemic, natural disaster, or other catastrophe;

(7) Any law enforcement official, including any person who has the duty of guarding government officials who are traveling on official business or traveling to or from such duty;

(8) Guests of an air carrier on an inaugural flight or delivery flights of newly-acquired or renovated aircraft;

(9) Security guards who have been assigned the duty to guard such aircraft against unlawful seizure, sabotage, or other unlawful interference;

(10) Safety inspectors of the National Transportation Safety Board or the FAA in their official duties or traveling to or from such duty;

(11) Postal employees on duty in charge of the mails or traveling to or from such duty;

(12) Technical representatives of companies that have been engaged in the manufacture, development or testing of a particular type of aircraft or aircraft equipment, when the transportation is provided for the purpose of in-flight observation and subject to applicable FAA regulations;

(13) Persons engaged in promoting air transportation;

(14) Air marshals and other Transportation Security officials acting in their official capacities and while traveling to and from their official duties; and

(15) Other authorized persons, when such transportation is undertaken for promotional purpose.

Revenue passenger means: a passenger for whose transportation an air carrier receives commercial remuneration. (This definition is for 14 CFR Part 217 traffic reporting purposes and may differ from the definitions used in other parts by the Federal Aviation Administration and the Transportation Security Administration for the collection of Passenger Facility Charges and Security Fees.) This includes, but is not limited to, the following examples:

(1) Passengers traveling under publicly available tickets including promotional offers (for example two-for-one) or loyalty programs (for example, redemption of frequent flyer points);

(2) Passengers traveling on vouchers or tickets issued as compensation for denied boarding or in response to consumer complaints or claims;

(3) Passengers traveling at corporate discounts;

(4) Passengers traveling on preferential fares (Government, seamen, military, youth, student, etc.);

(5) Passengers traveling on barter tickets; and

(6) Infants traveling on confirmed-space tickets.

Since 1998, ECCNs 1B115, 1B117, 9B115 and 9B116, have referred exporters to the International Traffic in Arms Regulations (ITAR), administered by the Department of State, Office of Defense Trade Controls, for licensing requirements for equipment specially designed for production of MT items subject to the ITAR. This rule clarifies that all production equipment for MT items, described in ECCNs 1B115, 1B117, 9B115 and 9B116, is subject to the EAR and controlled on the CCL. The Departments of Commerce, State and Defense are currently reviewing the control jurisdiction for specific items of equipment specially designed for the production of certain MT items that are subject to the ITAR. This review may result in future revisions to the EAR and the ITAR with respect to specific items of specially designed MT production equipment.

Specifically, the following changes are made to the following ECCNs:

1. This final rule has been determined to be not significant for purposes of E.O. 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid Office of Management and Budget Control Number. This rule involves a collection of information subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq. ). This collection has been approved by the Office of Management and Budget under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 45 minutes for a manual submission and 40 minutes for an electronic submission.

3. This rule does not contain policies with Federalism implications as this term is defined under E.O. 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this interim rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Matthew Blaskovich, Office of Exporter Services, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, D.C. 20044, or mblaskov@bis.doc.gov.

On May 14, 2002, the President signed into law the “Enhanced Border Security and Visa Entry Reform Act of 2002” (Border Security Act), Public Law 107-173, section 501 of the Border Security Act addresses the need to improve our ability to track foreign students while in the United States. Section 501(a) expands the Attorney General's responsibilities for monitoring and verification requirements established for students and exchange visitors by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IRRIRA), Public Law 101-649. An electronic information collection and tracking system is being developed by the INS pursuant to these responsibilities (known as the “Student and Exchange Visitor Information system” (SEVIS)) and is required to be fully implemented by January 1, 2003.

Section 501(c) of the Border Security Act requires the establishment by the Department of an interim program for the electronic monitoring of foreign student and exchange visitor visa issuance, admission to the United States, and enrollment until SEVIS is fully operational. The interim system, known as ISEAS, will be the means by which the Department, INS, approved educational and vocational institutions and exchange visitor programs meet the legislative requirements under 501(c). Subject to a thirty to sixty day phase-in and testing period, ISEAS will become operational on September 11, 2002.

While section 501(c) of the Act only mandates its application to exchange visitors seeking to attend approved institutions of higher education, the Department has determined to make ISEAS requirements identical to SEVIS requirements regarding the participation of all exchange visitor applicants. The Department also believes that this determination more accurately reflects the intent of Congress as expressed in the USA PATRIOT Act and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, both of which contain provisions relating to the electronic monitoring of students and exchange visitors. Thus, all exchange visitor visa applications will be subject to ISEAS verification.

In light of national security concerns, Congress has mandated an interim electronic system to monitor aliens seeking to enter the United States under the F, M, or J nonimmigrant visa categories. Until SEVIS is fully implemented, ISEAS will facilitate the collection and transmission of student and exchange visitor applicant data by the Department, the INS, approved educational and other educational institutions, and exchange visitor programs to ensure that visa requirements are met before student or exchange visitor visas are issued and that students and exchange visitors, in fact, enroll in the institutions and programs that formed the basis of their visa classifications.

ISEAS will be available to officials designated by institutions and programs beginning September 11, 2002. These officials should begin entering student and exchange visitor data into the ISEAS database on that date. However, it will not be fully operational for an additional thirty to sixty days after September 11. Therefore, during this phase-in and testing period, entry of data into ISEAS may not guarantee that a consular officer will receive the data electronically. In view of that fact and because no student or exchange visitor visas can be issued on or after September 11 unless the Department receives “electronic evidence of documentation of the alien's acceptance,” the Department has devised back-up procedures to ensure that consular officers receive timely electronic verification of enrollment from the sponsoring institutions and programs during the first month or two before ISEAS is fully operational.

Instructions have been sent to all consular posts advising consular officers that if no data has been entered into or a consular officer cannot access data from ISEAS, the officer must send an email inquiry directly to the sponsoring institution or program office and request email confirmation of the student's or exchange visitor's enrollment. Our officers in many cases may be able to obtain email addresses using internet search engines or from the visa applicant directly. The Department also is creating lists of institutional and program web pages, and will be available to assist consular officers in locating email addresses. If a consular officer cannot obtain the electronic verification directly, the Visa Office will seek to obtain it from the sponsoring institution through the Department's internet or email resources.

Thus, admissions offices of all institutions and the acceptance offices of all exchange visitor program sponsors should be aware of the possibility that despite the fact that they have entered student and program participant information into ISEAS, they may receive direct email requests for verification from consular officers or from the Visa Office if enrollment cannot be verified through ISEAS. These offices should respond promptly to any such request in order not to delay the issuance of a visa to the student or exchange visitor.

The Department also is undertaking an extensive media campaign targeted at institutions and programs that will inform them in detail about the new requirements.

Aliens who wish to obtain visas to study or participate in an exchange program in the United States must first apply to an educational institution that has been approved by the INS or to a program approved by the Department's Bureau of Educational and Cultural Affairs. When a student or exchange visitor accepts an offer to study or otherwise participate in an exchange program, the approved institution or program must complete the appropriate form for that institution or program. Academic or language institutions must complete the Form I20A-B, “Certificate of Eligibility for Nonimmigrant (F-1) Student Status.” Vocational schools must complete the Form I-20M-N, “Certificate of Eligibility for Nonimmigrant (M-1) Student Status.” Designated exchange visitor program sponsors must complete the Form DS-2019, “Certificate of Eligibility for Exchange Visitor (J-1) Status.”

Section 501(c) requires the approved institution or program to electronically transmit evidence of the student's or exchange visitor's acceptance to the Department. An official designated by an approved institution or program must enter certain information from the Forms I-20A-B, I-20M-N or DS-2019 into the ISEAS database. Consular officers may not issue an F-1, M-1, or J-1 visa unless they have received and reviewed the electronic acceptance data submitted by the approved institution or program. The Department, in turn, must notify the INS upon issuance of an F-1, M-1, or J-1 visa.

The fact that section 501(c) provides that a consular officer may not issue an F-1, M-1 or J-1 visa until the official designated by a school or program enters the appropriate information into ISEAS means that an alien already enrolled in a school or exchange program whose visa expires may not obtain a new visa until the designated official makes the ISEAS entries. Therefore, ISEAS requirements do not apply only to new school and program enrollees. They apply to all principal aliens seeking student and exchange visitor visas after September 11, 2002, whether or not a visa was previously issued to that student or exchange visitor for the same program.

Section 501(c) also requires the INS is to notify the approved institution at the time of the student's or the exchange visitor's admission to the United States. If the student or exchange visitor fails to register for classes or an exchange program, the approved institution must notify the INS of such failure no later than 30 days after the deadline for registration has passed.

An official designated by an approved institution or exchange visitor program can enter student or exchange visitor acceptance documentation for transmission to the Department by going to the State Department web page, www.iseas.state.gov. The official of the approved institution or program will follow instructions contained on the web page for entering student or exchange visitor identification data. ISEAS checks the list of approved institutions and exchange visitor programs against the identification data entered by the institution or program to determine if the institution or program is on the INS or State Department Bureau of Educational and Cultural Affairs approved list, as appropriate. Once ISEAS confirms that the institution or program is on one of the approved lists, an official designated by the approved institution or program will enter into the database certain student or exchange visitor data contained in the forms I-20, IAP-66 or DS-2019. After each record is entered into the ISEAS database, ISEAS will return a confirmation number. The institution or program sponsor user must download and retain the ISEAS confirmation number as part of the institution's or program sponsor's student or exchange visitor data.

The Department is amending its regulations at 22 CFR 41.61 and 41.62 regarding students and exchange visitors by adding the requirement that approved institutions or program sponsors transmit electronic evidence of the foreign student's or exchange visitor's acceptance documentation to the Department. An F-1, M-1, or J-1 visa may not be issued unless a consular officer has received and reviewed the student or exchange visitor acceptance documentation.

The Department's implementation of this regulation as an interim rule with request for comments is based upon the “good cause” exceptions found at 5 U.S.C. 553(b) and (d)(3). The Border Security Act requires that the transitional program be operational no later than September 11, 2002. Considerable time was required to develop a program to implement Section 501(c) of the Border Security Act. The Department has determined that there is insufficient additional time to issue a proposed rule with a request for comments, given the need to promulgate regulations in compliance with the statutory deadline of September 11, 2002.

The Department, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of entities.

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

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

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

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

This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126) requires that the Secretary of the Interior and the Secretary of Agriculture (Secretaries) implement a joint program to grant a preference for subsistence uses of fish and wildlife resources on public lands in Alaska, unless the State of Alaska enacts and implements laws of general applicability that are consistent with ANILCA and that provide for the subsistence definition, preference, and participation specified in Sections 803, 804, and 805 of ANILCA. In December 1989, the Alaska Supreme Court ruled that the rural preference in the State subsistence statute violated the Alaska Constitution and, therefore, negated State compliance with ANILCA.

The Department of the Interior and the Department of Agriculture (Departments) assumed, on July 1, 1990, responsibility for implementation of Title VIII of ANILCA on public lands. The Departments administer Title VIII through regulations at Title 50, part 100 and Title 36, part 242 of the Code of Federal Regulations (CFR). Consistent with subparts A, B, and C of these regulations, as revised January 8, 1999, (64 FR 1276), the Departments established a Federal Subsistence Board to administer the Federal Subsistence Management Program. The Board's composition includes a Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish and Wildlife Service; the Alaska Regional Director, National Park Service; the Alaska State Director, Bureau of Land Management; the Alaska Regional Director, Bureau of Indian Affairs; and the Alaska Regional Forester, USDA Forest Service. Through the Board, these agencies participate in the development of regulations for subparts A, B, and C, which establish the program structure and determine which Alaska residents are eligible to take specific species for subsistence uses, and the annual subpart D regulations, which establish seasons, harvest limits, and methods and means for subsistence take of species in specific areas. Subpart D regulations for the 2002-2003 wildlife seasons, harvest limits, and methods and means were published on June 28, 2002, (67 FR 43710) Because this rule relates to public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, identical closures and adjustments would apply to 36 CFR part 242 and 50 CFR part 100.

The Alaska Department of Fish and Game (ADF&G), under the direction of the Alaska Board of Game (BOG), manages the general harvest and State subsistence harvest on all lands and waters throughout Alaska. However, on Federal lands and waters, the Federal Subsistence Board implements a subsistence priority for rural residents as provided by Title VIII of ANILCA. In providing this priority, the Board may, when necessary, preempt State harvest regulations for fish or wildlife on Federal lands and waters.

The emergency change for closure of seasons is necessary to protect declining muskox populations on the North Slope of the Arctic National Wildlife Refuge. This emergency change is authorized and in accordance with 50 CFR 100.19(d) and 36 CFR 242.19(d).

Muskoxen were reestablished in and near the Arctic National Wildlife Refuge in Unit 26(C) in 1969 and 1970. For several years after their release, numbers of muskoxen increased rapidly and began expanding into regions east (Canada) and west (Unit 26B) of the Refuge. After reaching a peak of 399 animals in 1986, numbers of muskoxen in Unit 26(C) were relatively stable from 1987-1998, but have declined sharply in the past two years.

A conservation concern, for this unit, was recognized when less than 70 muskoxen were counted during aerial surveys made in late June/early July 2002. Reasons for the decline include poor calf recruitment, emigration of muskoxen from Unit 26(C) into regions east and west of the Refuge, and increased predation. Until more calves are born and survive or muskoxen move back into the Refuge, numbers are likely to remain low and could continue to decline. The low number of calves seen in 2000 and 2001 is likely related to severe weather (fall icing conditions, deep snow and a prolonged snow season). Changes in distribution also has affected the number of muskoxen in the Refuge. Between 2000 and 2002, mixed-sex groups with 3 radiocollared animals dispersed eastward into Canada and at least 1 group with a radiocollared animal moved west off the Refuge. Muskoxen may also have dispersed southward into the mountains.

On July 11, 2002 the Federal Subsistence Board, acting through the delegated official and at the request of the North Slope Muskox Working Group, delayed the opening of the muskox season in Unit 26(C), from July 15 to September 15. Delaying the start of the season until September 15 will allow biologists time to conduct additional surveys and to recommend a more permanent course of action to address the population decline of muskoxen in Unit 26(C).

The Board finds that additional public notice and comment requirements under the Administrative Procedure Act (APA) for this emergency action is impracticable, unnecessary, and contrary to the public interest. Lack of appropriate and immediate conservation measures could seriously affect the continued viability of wildlife populations, adversely impact future subsistence opportunities for rural Alaskans, and would generally fail to serve the overall public interest. Therefore, the Board finds good cause pursuant to 5 U.S.C. 553(b)(3)(B) to waive additional public notice and comment procedures prior to implementation of these actions and pursuant to 5 U.S.C. 553(d) to make this rule effective as indicated in the DATES section.

A Final Environmental Impact Statement (FEIS) was published on February 28, 1992, and a Record of Decision on Subsistence Management for Federal Public Lands in Alaska (ROD) signed April 6, 1992. The final rule for Subsistence Management Regulations for Public Lands in Alaska, subparts A, B, and C (57 FR 22940-22964, published May 29, 1992) implemented the Federal Subsistence Management Program and included a framework for an annual cycle for subsistence hunting and fishing regulations. A final rule that redefined the jurisdiction of the Federal Subsistence Management Program to include waters subject to the subsistence priority was published on January 8, 1999, (64 FR 1276.)

The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. A Section 810 analysis was completed as part of the FEIS process. The final Section 810 analysis determination appeared in the April 6, 1992, ROD which concluded that the Federal Subsistence Management Program, under Alternative IV with an annual process for setting hunting and fishing regulations, may have some local impacts on subsistence uses, but the program is not likely to significantly restrict subsistence uses.

This emergency change does not contain information collection requirements subject to Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995.

This emergency change has been exempted from OMB review under Executive Order 12866.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires preparation of flexibility analyses for rules that will have a significant effect on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. The exact number of businesses and the amount of trade that will result from this Federal land-related activity is unknown. The aggregate effect is an insignificant economic effect (both positive and negative) on a small number of small entities supporting subsistence activities, such as gun, hunting gear, and gasoline dealers. The number of small entities affected is unknown; but, the effects will be seasonally and geographically-limited in nature and will likely not be significant. The Departments certify that the adjustments will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq. ), this rule is not a major rule. It does not have an effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Title VIII of ANILCA requires the Secretaries to administer a subsistence preference on public lands. The scope of this program is limited by definition to certain public lands. Likewise, the emergency change has no potential takings of private property implications as defined by Executive Order 12630.

The Service has determined and certifies pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq. , that the emergency change will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation is by Federal agencies, and no cost is involved to any State or local entities or Tribal governments.

The Service has determined that the emergency change meets the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform.

In accordance with Executive Order 13132, the emergency change does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising management authority over fish and wildlife resources on Federal lands.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated possible effects on Federally recognized Indian tribes and have determined that there are no effects. The Bureau of Indian Affairs is a participating agency in this rulemaking.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, or use. This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As these actions are not expected to significantly affect energy supply, distribution, or use, they are not significant energy actions and no Statement of Energy Effects is required.

Daniel LaPlant drafted this document under the guidance of Thomas H. Boyd, of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Taylor Brelsford, Alaska State Office, Bureau of Land Management; Greg Bos, Alaska Regional Office, U.S. Fish and Wildlife Service; Sandy Rabinowitch, Alaska Regional Office, National Park Service; Warren Eastland, Alaska Regional Office, Bureau of Indian Affairs; and Ken Thompson, USDA-Forest Service, provided additional guidance.

Throughout this document “we,” “us,” or “our” means EPA.

In today's action we are approving into the Texas SIP revisions of Title 30 Texas Administrative Code (TAC), Chapter 116, “Control of Air Pollution by Permits for New Construction or Modification.” The Governor of Texas submitted the following revisions to 30 TAC Chapter 116 (Chapter 116) to the Administrator of EPA after adequate notice and public hearing:

The 1993 submittal includes revisions adopted by Texas on August 16, 1993. The 1993 submittal includes revisions to and recodification of Chapter 116. 1 The 1993 submittal serves as the base regulation for subsequent revisions that TCEQ has adopted, or will adopt.

This submittal includes revisions to Chapter 116 adopted by Texas on June 17, 1998. It includes changes which Texas made under its regulatory reform to simplify and clarify its rules. 2 These changes which do not involve substantive changes include: (1) Using shorter sentences, (2) limiting each citation to one main concept, (3) reordering requirements into a more logical sequence, and (4) using more commonplace terminology. 3

On September 1, 2002, the Texas Natural Resource Conservation Commission (TNRCC) changed its name to the Texas Commission on Environmental Quality (TCEQ). The revisions to Chapter 116 which we are acting upon herein were adopted prior to the agency changing its name from TNRCC to TCEQ. All rules and regulations, orders, permits, and other final actions taken by the TNRCC remain in full effect unless and until revised by the TCEQ.

In today's action, consistent with the following discussion, we are approving these revisions to Chapter 116 as revisions to the Texas SIP.

On September 24, 2001 (66 FR 48796), we published a direct final rule approving revisions to and recodification of Chapter 116. We concurrently published a proposed rulemaking with the direct final rule (66 FR 48850) and stated that if we received any adverse comments by the end of the public comment period we would withdraw the direct final rule. We would then respond to the comments when we take final action on the proposed approval.

On October 24, 2001, we received comment letters from Public Citizen and from Lowerre & Kelly (Lowerre), Attorneys at Law on behalf of Quality of Life El Paso. We withdrew our direct final action on November 23, 2001 (66 FR 58667).

In its October 24, 2001, comments, Public Citizen requested additional time to comment on these SIP revisions. Public Citizen requested the additional time to compare more fully the state's submittal against the current SIP and applicable requirements. In response to Public Citizen's request for additional time to comment on the proposed SIP revisions, we reopened the comment period for 30 days on March 20, 2002 (67 FR 12949). Public Citizen provided additional comments on April 12, 2002.

On September 24, 2001 (as part of this action), we proposed to approve revisions to Chapter 101, Section 101.1—Definitions. Specifically, we proposed to approve a revised definition of “nonattainment area” and to reinstate the definition of “de minimis impact” which we had inadvertently removed from Section 101.1 on August 19, 1997 (62 FR 44083). 4 We received no comments on our proposed action to approve revisions to Section 101.1.

On September 26, 2001, Texas submitted revisions to Section 101.1. On November 14, 2001 (as part of a separate action), we approved the revisions to Section 101.1. See 66 FR 57260. The revisions approved on November 14, 2001, incorporate the revised definition of “nonattainment area” and reinstated the definition of “de minimis impact” and are consistent with our September 24, 2001 proposal. Accordingly, we have revised the TSD to show this change. We are not approving revisions to Section 101.1 in this action.

Approval of these revisions to Chapter 116 will bring the organizational structure and language of the Federally approved SIP for Chapter 116 more closely in line with the Chapter as it currently exists in the State's program. Our approval of these revisions will also facilitate future revisions to Chapter 116, by enabling us to approve such revisions into the current organizational structure. This approval also better serves the State, the public, and the regulated community by making the approved SIP more closely match the words and format of the rules that Texas currently implements.

We previously approved portions of the 1993 submittal in separate actions as indicated in Table 1 below.

With respect to the sections identified above, today's action approves the codification of these provisions into the organization structure adopted in the 1998 submittal and any nonsubstantive changes to the previously approved provisions.

We are approving Section 116.116(c) which sets forth provisions for permit alterations. Section 116.116(c) defines a permit alteration as a variation to a representation in a permit application or in a general or special condition of a permit that decreases the allowable emissions or does not change the character or method of control of emissions. The TCEQ must approve any request for permit alteration which may result in an increase in off-property concentrations of air contaminants, may involve a change in permit conditions, or may affect facility or control equipment performance. Changes subject to permit alterations involve no emissions increase. Like kind replacement of emissions units and new emission units are not allowed under the permit alteration provisions. Permit alterations are not granted for changes which qualify for permit amendments under Section 116.116(b). Such permit amendment is required for any change which involves an increase in emissions or a change in the method of control. Examples of permit alterations include:

(1) Changes to a special condition in a permit to add an annual production rate for a unit that was inadvertently left out,

(2) Revising an emission point to show fugitive emissions and emissions from a newly installed control device as two separate emission points, and

(3) Changes to a special condition to reflect that primary seals for external floating roof tanks may be liquid-mounted primary seals or mechanical shoes. The use of alterations is limited only to changes which involve no increase in emissions and no changes in the method of control. Accordingly, such changes will not result in a violation of the applicable portion of the control strategy  5 or interfere with attainment or maintenance of a national standard, thus meeting the requirements of 40 CFR 51.160. 6 Subsection (c) as submitted in 1998 is equivalent to the 1993 submittal.

We also received comments concerning our proposed approval of the provisions for permit alterations. Section IV contains our response to these comments.

In today's action, we are not approving the provisions of Chapter 116 identified below. We also received comments concerning our proposal to take no action on these provisions. Section IV contains our response to these comments.

We are taking no action on Subchapter C of Chapter 116—Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, section 112(g), 40 CFR part 63), as submitted in 1998. The program for reviewing and permitting constructed and reconstructed major sources of HAP is regulated under section 112 of the Act and under 40 CFR part 63, subpart B. Under these provisions, States establish case-by-case determinations of maximum achievable control technology for new and reconstructed major sources of HAP. The process for these provisions is carried out separately from the SIP activities. For the reasons discussed above, we are not approving Subchapter C of Section 116 as submitted in 1998.

In addition, and for the reasons discussed above, we are also not approving other provisions of Chapter 116 which pertain to or refer to Subchapter C. These provisions include:

• Section 116.15—Section 112(g) Definitions,

• Section 116.111(2)(K)—Hazardous Air Pollutants,

• Section 116.115(c)(2)(B)(ii)(I)—Special conditions for sources subject to Subchapter C (Hazardous Air Pollutants),

• Section 116.116(b)(3)—Changes at Section 112(g) facilities, and

• Section 116.130(c)—Applications subject to the requirements of Subchapter C of Chapter 116 (relating to Hazardous Air Pollutants).

We are approving the 1998 submittal to the extent that it is equivalent to the 1993 submittal. The 1998 submittal includes new provisions as well as numerous changes that Texas adopted subsequent to the 1993 submittal and carried forward into the 1998 submittal. We are still reviewing the new provisions and the changes carried forward from rulemaking actions adopted subsequent to the 1993 submittal. However, if we wait until we complete our review and evaluation of these provisions, we would have to delay action on the portions of the 1998 submittal that we consider to be approvable. As stated above, we believe that it is important to act on the provisions of the 1998 submittal that are consistent with the 1993 submittal to ensure that the approved SIP more closely matches the rules that the TCEQ administers and enforces.

Accordingly, today's action approves the 1998 submittal to the extent that the 1998 submittal is equivalent to the provisions of the 1993 submittal that we are approving. At this time, we are taking no action on the following provisions of the 1998 submittal that are not equivalent to the 1993 submittal, except where otherwise indicated:  7

• The following definitions in Section 116.10—General Definitions:

• Section 116.13—Flexible Permit Definitions;

• Section 116.14—Standard Permit Definitions;

• Section 116.110(a)(2)-(3) and (c) which respectively relate to standard permits, flexible permits, and exclusions from permitting;

• Section 116.115(b) and (c)(2)(A)(i) which respectively relate to general conditions and special conditions for sources subject to standard permits;

• Section 116.116(e)-(f) which respectively relate to changes to qualified facilities and use of credits;

• Section 116.117 which relates to Documentation and Notification of Changes to Qualified Facilities;

• Section 116.118 which relates to Pre-Change Qualification;

• Section 116.132(c)-(d) which respectively relate to additional alternate language public notice;

• Section 116.133(f)-(g) which respectively relate to alternate language sign posting;

• Section 116.136—Public Comment Procedures;  8

• Subchapter F—Standard Permits; and

• Subchapter G—Flexible Permits.

We are reviewing the provisions which we are not acting upon in this action. When we complete our review, we will take appropriate action on these provisions in separate Federal Register actions. The TSD contains a detailed evaluation which documents why we are taking no action on these provisions.

Texas repealed the following provisions from Chapter 116 in the 1998 submittal:

• Definitions of “de minimis impact”  9 and “emissions unit” in Section 116.10—General Definitions, and

• Section 116.110(b)—Operations Certificate.

These provisions of the 1993 submittal were repealed in 1998, and are no longer a part of Chapter 116. Thus, we are not approving these provisions of the 1993 submittal.

In letters to TNRCC (now TCEQ) dated August 3, 1999, and September 27, 2000, we informed them that we had concerns relating to the approval of Sections 116.170(2), 116.174, and 116.175. On the basis of subsequent discussions with Texas on August 15, 2000, EPA and TCEQ have agreed that it is appropriate to take no action on Sections 116.170(2), 116.174, and 116.175 in today's action. Our letter to the State on September 27, 2000, confirmed this understanding. We will act on these provisions in a separate action after TCEQ resolves the outstanding concerns to our satisfaction. Additional information regarding our concerns with these provisions is contained in the TSD.

On December 29, 1998, Texas requested that we delay action on approving Subchapter C—Permit Exemptions as submitted in 1993. In a subsequent letter dated April 26, 1999, Texas provided its reason for requesting that we delay approval of Subchapter C. Texas requested the delay because of several bills that were before the Texas Legislature which, if passed and signed into law, would affect the new source permitting structure, including the exemptions from permitting. These bills were passed and signed into law. Because we anticipate that Texas will significantly revise and restructure its provisions for exemptions from permitting, we are delaying action on Subchapter C (as submitted in 1993) pending the submission of these SIP revisions.

Because we are taking no action on Subchapter C as submitted in 1993, the existing provisions of Section 116.6 (Exemptions), approved August 13, 1982 (47 FR 35193) remain in the Texas SIP.

We also received comments concerning our proposed action relating to Permit Exemptions. Section IV contains our response to these comments.

The Governor submitted Subchapter D (Permit Renewals) of Chapter 116 in the 1993 submittal. However, the 1998 submittal incorporates revisions that Texas adopted after the 1993 submittal and which we have not approved. The changes significantly revise Subchapter D to the extent that it is not equivalent to Subchapter D as submitted in the 1993 submittal. We have not completed our review of these changes and are therefore taking no action on Subchapter D in today's action. We will act on Subchapter D in a separate action following our review of the changes adopted subsequent to the 1993 submittal.

The Governor submitted Subchapter E (Emergency Orders) as part of the 1993 submittal. An Emergency Order authorizes the immediate action for the addition, replacement, or repair of facilities or control equipment, and authorizes the associated emissions of air contaminants, whenever a catastrophic event necessitates such construction. An applicant that qualifies for an Emergency Orders would need to submit an application under the requirements of Section 116.411.

On December 10, 1998, the Governor of Texas submitted additional SIP revisions pertaining to Emergency Orders. In that submittal, Texas recodified and revised the provisions pertaining to Emergency Orders into 30 TAC chapter 35. We are still reviewing the December 10, 1998, SIP revisions. We will act on the provisions relating to Emergency Orders in a separate action.

In letters to Texas dated August 3, 1999, and September 27, 2000, we identified concerns related to Subchapter E, submitted August 31, 1993, and with the revisions submitted December 10, 1998. On the basis of subsequent discussions with Texas on August 15, 2000, the EPA and TCEQ have agreed that it is appropriate to take no action on Subchapter E, submitted August 31, 1993, and the SIP revisions submitted December 10, 1998, in today's action. Our letter to Texas on September 27, 2000, confirmed this understanding. We will act on these provisions in a separate action after TCEQ resolves the outstanding concerns to our satisfaction. Additional information regarding our concerns with these provisions is contained in the TSD.

We also received comments concerning our proposal to take no action on Emergency Orders. Section IV contains our response to these comments.

On September 24, 2001, we proposed to approve Section 116.137 as submitted in 1993. We proposed to approve the 1993 submittal of Section 116.137 based upon Texas making no changes to the regulatory text of that Section in the 1998 submittal. Further review indicates that in the 1998 submittal Texas changed the title of Section 116.137 from “Notification of Final Action by the Texas Air Control Board” to “Notification of Final Action by the Commission”. Accordingly, we have revised the TSD to show this change. We are approving the 1998 submittal of Section 116.137 in today's action.

This action approves the recodification of several provisions of Texas regulations for permitting new and modified sources as submitted August 31, 1993, and July 22, 1978. Today's action replaces several Sections of the former SIP with new Sections under the current numbering system used by Texas in Chapter 116. By approving these revisions, the SIP-approved version of Chapter 116 more closely correlates with the numbering system currently used by Texas.

Table 2 below cross-references the recodified provisions that we are approving to the corresponding provisions in the former SIP. The table identifies the new SIP citation, the former SIP citation, the adoption date of the section that we are approving, the title of the Section, and any explanatory notes. Where noted, the “comments” column may identify portions of the “New SIP Citation” which we are not approving in today's action. The reasons for not approving such provisions identified in the “comments” column are provided in section III and in the TSD.

Table 3 below identifies previously approved provisions of the 1993 submittal. This action recodifies these previously approved provisions in the format submitted in the 1998 submittal with nonsubstantive changes.

The following is a summary of the comments that we received October 24, 2001, and April 12, 2002, and our response to those comments. In a separate document, we have included a more detailed response to comments in the docket for this action. You may obtain a copy of this response to comments by contacting the person identified in the section entitled For Further Information Contact .

Comment 1: On October 24, 2001, Public Citizen commented that the proposal to take “no action” is not consistent with section 110(k)(2) of the Act which provides that, within 12 months of a determination that a State submittal is complete, EPA shall act on the submittal in accordance with section 110(k)(3). Section 110(k)(3) provides for full approval or partial approval and partial disapproval. The only other action available to EPA is conditional approval under section 110(k)(4). Taking no action on a SIP submittal after the 12 month period is not an option under the Act. The deadlines for EPA action on the 1993 and 1998 submittals have long since passed; thus EPA must either approve or disapprove the provisions it has proposed to take no action on.

On April 12, 2002, Public Citizen further commented that it does not believe that EPA has the authority to “take no action” on portions of Texas” SIP submittal. The Act provides for approval, disapproval or partial approval/disapproval within 12 months of a completeness determination. Section 110(k)(3) of the Act.

Response 1: We are neither approving nor disapproving (taking no action on) certain provisions of the Texas SIP submittals in this action because we have outstanding questions regarding those provisions and they remain under review. We believe it would be premature to propose action on these provisions before we resolve our outstanding questions with Texas. Our statements that we are taking no action on those provisions should not be taken to mean that we never intend to act on them. We will approve or disapprove those provisions in future actions on the Texas SIP submittals (unless and to the extent that they are withdrawn by Texas).

Comment 2: On October 24, 2001, Public Citizen commented that the lack of EPA action makes the approved regulations extremely difficult, if not impossible to interpret.

Response 2: As discussed in our September 24, 2001, action, this action makes the approved SIP easier to understand because the SIP will more closely match the State's program and the rules that Texas currently implements.

Furthermore, the Table in 40 CFR 52.2270(c), “EPA Approved Regulations in the Texas SIP,” clearly identifies the provisions that we are approving. Additionally, for each entry in the Table, we clearly identify for each Section of the State Regulation that we are approving any provisions in that Section that are not included in the SIP under the Column titled “Explanation.”

The public can also access the current Federally-approved SIP on the EPA Region 6 Web Site. We update the web site to include all SIP revisions after the SIP revisions become effective. The public can access this Web site, review, and download these approved regulations at: http://www.epa.gov/earth1r6/6pd/air/sip/sip.htm.

The EPA Region 6 staff is available to provide assistance to any person who wants information concerning what is required in the approved

SIP. For this action, any person may obtain information and assistance concerning the SIP regulations approved by contacting the person identified in the section entitled For Further Information Contact .

Finally, revising the existing SIP provisions of Chapter 116 will make the Texas New Source Permitting Program easier to understand because the revised provisions will be in the format that TCEQ uses. If we retained the existing provisions of Chapter 116, then for purposes of Federal administration, implementation, and enforcement, we would have to rely upon the existing SIP citations which differ from the TCEQ's regulations. This disparity would add to confusion and misunderstanding concerning the applicable requirements that a source must meet.

Comment 3: On October 24, 2001, Public Citizen commented that EPA should assure that the provisions for which no action is taken are not referenced in the provisions that are approved, which would constitute tacit approval of such provisions.

On April 12, 2002, Public Citizen further commented that EPA is taking no action on sections of the SIP that are referenced in sections that EPA is approving. It is, therefore, often extremely difficult to determine whether a particular provision will be given effect or not.

Response 3: The TSD contains an annotation of the 1993 and 1998 submittals. In the development of this annotation, we reviewed the regulation that we proposed to approve to ensure that the provisions of Chapter 116 do not reference the provisions that we did not propose to approve. The regulations that we proposed to approve do not reference provisions that we are not approving, except for certain references to 30 TAC Chapter 106—Permits by Rule discussed below. See Comment 4 for further discussion of Chapter 106. As stated in the proposed action, we will review the provisions that we did not approve in this action and either approve or disapprove in separate actions.

Comment 4: On April 12, 2002, Public Citizen commented that while EPA says it is not approving Texas' Chapter 106 exemption rules in this action, EPA is approving 116.110(a)(4) which cross-references Chapter 106. Public Citizen also identified cross-references to Chapter 106 in Sections 116.115(c)(2) and 116.116(d) and commented that “[i]t is unclear, therefore, whether EPA is authorizing sources to rely on the Chapter 106 exemptions for authorization or whether sources are required to obtain a permit under Section 116.111. Such confusion has made it very difficult to comment on the proposal.”

Public Citizen further commented that because EPA is taking no action on certain provisions of Subchapter C of Chapter 116, the Federal Register states that EPA is leaving Section 116.6 regarding exemptions in place. Section 116.6 provides that a permit shall not be required for those sources exempted by the Executive Director of the TCEQ because such sources will not make a significant contribution of air contaminants to the atmosphere.

Public Citizen stated that this rule appears to be contrary to section 110(i) of the Act which provides that an Executive Director-granted variance should have no effect on the Federal enforceability of a provision unless the variance is submitted to EPA and approved into the SIP as a source-specific SIP provision. Leaving such a provision in the SIP creates confusion regarding the effect of such variance.

Response 4: We proposed to approve Sections 116.110(a)(4), 116.115(c)(2)(A)(ii), 116.116(d) and (d)(1), and 116.143(2), which contain cross references to Chapter 106. As discussed in the proposal, Texas has not submitted Chapter 106. Chapter 106 is the TCEQ's program for Permits by Rule, which replaced the provisions for Standard Exemptions. Currently the approved SIP recognizes Standard Exemptions in Section 116.6 which we approved on August 13, 1982 (47 FR 35193). The 1993 submittal recodified the provisions for Standard Exemptions into Subchapter C of Chapter 116. In 1996 Texas subsequently recodified its provisions for Standard Exemptions into Chapter 106. In 2000, Texas redesignated the Standard Exemptions to Permits by Rule.

The criteria and conditions that a source must meet to qualify for a Permit by Rule are in Subchapter A of Chapter 106. Our comparison of Subchapter A of Chapter 106 (as it currently exists in Texas rules) with the provisions of Subchapter C of Chapter 116 (as submitted in 1993) indicates no substantive difference between the two sets of regulations. Thus, TCEQ's current provisions which describe the qualifications for a permit by rule are substantially the same as those in Subchapter C of Chapter 116 in the 1993 submittal. These requirements are substantially the same as the provisions for Exemptions that currently exist in Section 116.6.

We are taking no action on Subchapter C of the 1993 submittal for the reasons discussed in the proposal. See 67 FR 48800, (September 24, 2001). Because Texas has not yet submitted Chapter 106, we are retaining Section 116.6 in the approved SIP. This retention will ensure the continuity of Texas' program for recognizing the former Standard Exemptions (now Permits by Rule). The continuity is maintained because the Permits by Rule which TCEQ recognizes under Chapter 106 remain consistent with the Standard Exemptions which are recognized under Section 116.6.

The TCEQ has stated that it will submit relevant provisions of Chapter 106 to EPA at a future date. However, we believe it necessary to approve the 1993 and 1998 submittals of Chapter 116 now for reasons stated in our proposed approval. When Texas submits Chapter 106 for approval into the SIP, we will take appropriate action. If we approve the provisions of Chapter 106 into the SIP, we will remove Section 116.6 from the SIP. Prior to approval of relevant provisions of Chapter 106 into the SIP, the references to Chapter 106 will be deemed consistent with Section 116.6.

Section 116.6 was approved as part of the SIP in EPA's action on August 13, 1982 (47 FR 35193). Thus, approval of Section 116.6 is not part of this action, and references to it are for explanatory purposes only. Under the circumstances, the provisions of Section 116.6 are not subject to public comment or judicial review as part of this action.

Comment 5: On April 12, 2002, Public Citizen requested clarification that Section 116.7—Request for Exemption, 10 is being deleted from the SIP. Public Citizen believes no such exemption provisions should be included in the SIP.

Response 5: We are deleting Section 116.7. We indicated in the September 24, 2001, action that we are deleting all existing entries under Chapter 116 in 40 CFR 52.2270(c), which includes Section 116.7. Thus, our action is to delete Section 116.7.

Comment 6: On April 12, 2002, Public Citizen commented on Section 116.116(b)(1)(C), which EPA proposed to approve. This provision replaces the existing SIP provision (Section 116.5) which provides that the Executive Director of TCEQ must approve any change which results in an increase in the discharge of the various emissions. Section 116.116(b)(1)(C) requires an application for a permit if the change will cause “an increase in the emissions rate for any air contaminant.” Public Citizen asserts that this is a substantive difference that weakens the existing SIP provision. Under the revised provision, according to Public Citizen, sources can vary from application representations and increase their total emissions without submitting an application as long as the emissions rate does not increase. Public Citizen says that sources should be required to obtain authorization and provide for public participation before varying from representations and causing an increase in pollution.

Response 6: The EPA does not agree that the change weakens the SIP. Section 116.116(b)(1) requires that a permit holder obtain a permit amendment prior to varying from any representation (with regard to construction plans or operation procedures in an application for a permit) or permit condition if the change meets any of three the criteria identified in Section 116.116(b)(1). The “increase in the emission rate of any air contaminant” (Section 116.116(b)(1)(C)) is one of three criteria that requires a permit amendment. The comment indicates, without giving any examples, that there could be changes where total emissions increase but the emission rate does not increase and, therefore, a permit amendment would not be required. We believe that would be a very unlikely circumstance. If “emission rate” is the mass of pollutant emitted per unit of time, any increase in total emissions must result in an increase in the emission rate for some unit of time.

Furthermore, the scenario envisioned in the comment becomes even more unlikely because any such change would also have to fail to trigger one of the other two criteria to avoid the necessity of obtaining a permit amendment. A permit amendment is also required if the change causes a change in the method of control of emissions (Section 116.116(b)(1)(A)) or a change in the character of the emissions  11 (Section 116.116(b)(1)(B)). 12

It is also worth noting that Texas made this change to Section 116.116(b)(1)(C) in the 1998 submittal. As stated in its proposed rulemaking of the 1998 submittal:

Taken together, the recodification of the permit amendment provisions from Section 116.5 to Section 116.116(b)(1) are adequate to meet the requirements of 40 CFR 51.160(a). 13 We therefore do not agree with this comment. In today's action we are approving Section 116.116(b)(1).

Comment 7: On October 24, 2001, and April 12, 2002, Public Citizen commented that it objects to EPA's approval of authorization procedures for new construction or modification that do not meet the requirements of 40 CFR part 51. Specifically, Section 116.116(c) (permit alterations) allows sources to make modifications without providing public participation as required under 40 CFR 51.161, which provides for notice and opportunity for public comment on proposed modifications. The Act requires that citizens be provided with at least a 30-day comment period on permit applications. 40 CFR 51.161. In addition, an analysis of the effect of the construction or modification on ambient air quality must be made available to the public.

On October 24, 2001, Lowerre commented that it objects to the approval of Section 116.116 because it does not allow for public participation on complex issues. Lowerre believes that TCEQ should allow for at least a 30 day notice and reasonable time for public comment for all permit changes that effect emissions or the enforceability of the permit.

Response 7: We do not agree that a modification could qualify for a permit alteration under the rules that we are approving. In NSR, a modification is any change as defined in section 111(a)(4) of the Act. 14 Under section 111(a)(4) of the Act, a change is a modification only if it results in an increase in the amount of emissions or results in emissions of an air pollutant not previously emitted. Under Section 116.116(c)  15 a permit alteration is only authorized in very limited circumstances which do not include modifications, where allowable emissions are decreased or where a change does not involve a change in the method of control of emissions or the character of emissions or an increase in the emission rate of any air contaminant. If a change involves an increase in allowable emissions or a change in the method of control or the character of emissions or an increase in the emission rate of any air contaminant, the source would be required to obtain a permit amendment under Section 116.116(b), 16 which would include public participation. 17

Under 40 CFR 51.161, a state or local agency must provide for public comment on information submitted by owners and operators as part of the “legally enforceable procedures in § 51.160.” 40 CFR 51.161(a). The provisions in 40 CFR 51.160 provide that a SIP must contain “legally enforceable procedures” concerning the construction or modification of a source. 18 The “legally enforceable procedures” of § 51.160 that are referenced in § 51.161 apply only to “construction or modification.” Under Section 116.116(c), permit alterations are defined to exclude changes which would qualify as amendments under Section 116.116(b) and as modifications under section 111(a)(4) of the Act or under 40 CFR 51.160 and 51.161. Accordingly, the TCEQ is not required to provide opportunity for public comment on permit alterations.

Comment 8: On October 24, 2001, Public Citizen commented that permit alterations are not nonsubstantive and that nothing in Section 116.116 limits approval only to nonsubstantive changes. Public Citizen asserts that Section 116.116(c)(2) references alteration applications for changes that result in an increase in off-property concentrations of air contaminants and which affect facility or control equipment performance, which Public Citizen believes are substantive changes.

On April 12, 2002, Public Citizen commented that alterations are not “ de minimis .” Alterations could result in increases in total emissions and, as acknowledged in the rule itself, could result in increases in off-property concentrations of air contaminants. Section 116.116(c)(2)(A). The proposed alteration provisions should not be approved into the SIP.

Response 8: Under Section 116.116(c)(1) a permit alteration is: a decrease in allowable emissions; or any change from a representation in a permit application, general condition, or special condition in a permit that does not cause (i) a change in the character or method of control of emissions; (ii) a change in the character of emissions; or (iii) an increase in the emission rate of any air contaminant.

Section 116.116(c)(2) provides that requests for permit alterations that must receive prior approval by the Executive Director are those that: (A) Result in an increase in off-property concentrations of air contaminants; (B) involve a change in permit conditions; or (c) affect facility or control equipment performance.

The changes described in Section 116.116(c)(2) identify the types of alterations “that must receive prior approval by the executive director.”

Such prior approval by the Executive Director assures that the types of changes described in Section 116.116(c)(2) in fact qualify as permit alterations as defined under Section 116.116(c)(1).

In addition, all permit changes, including alterations, must satisfy the provisions of Section 116.111(2)(A)(i) which provides that the “emissions from the proposed facility will comply with all rules and regulations of the commission and with the intent of the TCAA, including protection of the health and physical property of the people.” (Emphasis added)

Thus when a proposed permit alteration will result in an increase in off-property concentrations of air contaminants or will affect facility or control equipment performance, the Executive Directive will have assurance, provided through the technical review of the application, that the emissions from a proposed permit alteration will protect the health and physical property of the people before approving a such request for an alteration.

Comment 9: On October 24, 2001, Lowerre cited a specific example of a concrete products plant which it maintains is attempting to avoid Title V permitting requirements  19 by submitting several permit modifications and forms, including permit alteration applications that are included in Section 116.116. The applicant submitted the applications in an attempt to establish Federally enforceable emission limits below the 100 tons per year major source threshold for particulate matter. Lowerre disagrees with TCEQ that the submission of these applications satisfies the requirements of Title V. Lowerre believes that unless and until all applications and other forms have been approved, the concrete products facility continues to violate Title V.

Lowerre further asserts that TCEQ has been reviewing these applications in piecemeal fashion. While Title V would have allowed for public participation, the TCEQ's piecemeal process for requiring applications separately, especially for the permit alteration applications, does not allow for public participation.

Lowerre also alleges that the source is attempting to circumvent Title V and other rules that apply to major sources. The source is located in an area of Texas which is nonattainment for particulate matter. Lowerre further alleges that the source is subject to nonattainment review for particulate matter. The source has invented a circular argument in an attempt to avoid such requirements.

Response 9: These comments relate to implementation of Section 116.116 rather than to its approvability. This comment only points to an isolated case in which a source allegedly failed to apply appropriate limits on its potential to emit. The appropriate venue for resolving such allegation is through the administration and enforcement of the applicable requirements, not through the disapproval of the regulation. The regulations that we are approving herein are adequate to keep a source's potential to emit below defined and applicable major source and major modification thresholds whenever a source desires to limit its potential to emit below the defined and applicable major source and major modification thresholds. Accordingly, we are approving Section 116.116 as proposed.

Comment 10: On October 24, 2001, Public Citizen commented that EPA should include an analysis that absence of the provisions for which EPA is taking no action will not create gaps or ambiguities, or impediments to implementation of the revised SIP.

Response 10: We have identified no gaps or ambiguities in the approved SIP based upon the absence in the SIP of the provisions for which we are taking no action. Furthermore, other than the sections referring to Chapter 106, Public Citizen has identified no gaps or ambiguities in the regulations that we proposed to approve. Consistent with our response to Comment 4, we do not consider the references to Chapter 106 as an impediment to implementation of the revised SIP. Because we have not found other gaps or ambiguities, we do not consider the approval of these changes as an impediment to implementation of the revised SIP.

Comment 11: On April 12, 2002, Public Citizen commented on Sections 116.410-116.418. EPA should act to deny approval of Texas' Emergency Orders provisions at Sections 116.410-116.418. The Act in section 110(i) provides that, with certain limited exceptions which do not apply here, “no order, suspension, plan revision, or other action modifying any requirement of an applicable implementation plan may be taken with respect to any stationary source by the State or by the Administrator.” The commission does not appear to be authorized to exempt sources from Federal SIP requirements, even during catastrophic conditions. The inclusion of such a provision in the SIP creates the impression that the commission does have such authority; it should be deleted.

Response 11: We are neither approving nor disapproving (taking no action on) the provisions of the Texas SIP submittals relating to Emergency Orders in this action. We have outstanding questions regarding Texas' regulations concerning Emergency Orders, and they remain under review. We believe it would be premature to propose action before we resolve our outstanding questions with Texas. Our statements that we are taking no action on the regulations for Emergency Orders should not be taken to mean that we never intend to act on them. We expect that we will approve or disapprove those provisions in future actions (unless and to the extent that they are withdrawn by Texas).

Comment 12: On October 24, 2001, Public Citizen commented that EPA should include an analysis that State regulations that EPA is approving meet the NSR requirements of the CAA and 40 CFR part 51, subpart I, §§ 51.160, 51.161, 51.165, and 51.166. 20

Response 12: With the exception of the provisions in Section 116.116(c), 21 the provisions that we are approving are recodification of previously SIP-approved provisions of Chapter 116. The recodified SIP provisions that we have previously approved already meet the provisions in 40 CFR 51.160 and 51.161. The provisions of 40 CFR 51.160 and 51.161 have not undergone substantial change since November 7, 1986 (51 FR 40669). Furthermore, the recodified provisions of Chapter 116 were not substantially changed in the 1993 and 1998 submittals. Thus the recodified provisions continue to meet the requirements of 40 CFR part 51, subpart I.

We approved these revisions to Chapter 116 based upon our finding that Chapter 116 meets the requirements under 40 CFR part 51, subpart I. The existing regulations and the recodified provisions of the 1993 and 1998 submittals of Chapter 116 continue to meet these provisions of the Act and subpart I.

Concerning our proposed approval of Section 116.116(c) concerning Permit Alterations, we addressed how these provisions meet the requirements of 40 CFR part 51, subpart I in the September 24, 2001, action. See 66 FR 48801. Additional discussion is also included in our response to Comments 7 and 8.

Comment 13: On October 24, 2001, Public Citizen commented that EPA must show to the public in another notice that Texas' implementation of the revised SIP is consistent with the requirements of the Act. Otherwise, EPA should withdraw its approvals of Texas' prevention of deterioration (PSD) and nonattainment (NNSR) programs and impose Federal regulations which implement these programs.

Response 13: This action is a recodification of existing provisions of the SIP (except for our approval of Section 116.116(c)). We approved the existing provisions based upon our determination that they meet the applicable provisions of section 110(a)(3)(A) of the Act and the regulations under 40 CFR part 51, subpart I—Review of New Sources and Modifications. The recodified provisions continue to meet the requirements of 40 CFR subpart I and are discussed in response to Comment 12. Public Citizen has provided no information which demonstrates any failure by Texas to implement these requirements in a manner consistent with the Act. Accordingly, we are proceeding with approval of these provisions.

Concerning the comment that EPA should withdraw its approvals of Texas' PSD and NNSR programs, the commenter provided no information under which we could take such action. We approved these provisions in separate actions as discussed in section III.C of this action. These prior actions approving the PSD and NNSR programs contain the documentation which demonstrates that these regulations meet the requirements of the Act. Because the provisions relating to NNSR and PSD are already approved as part of the SIP, they are not part of this action, and references to them are for explanatory purposes only. Under the circumstances, the provisions for NNSR and PSD are not subject to public comment or judicial review as part of this action.

Comment 14: On October 24, 2001, Public Citizen commented that it does not agree that the proposed changes are “nonsubstantive” as indicated in the proposal; and is concerned that certain changes are substantive. As an example, Public Citizen argued that the September 24, 2001, action did not mention that Texas repealed operating permit requirements formerly codified in Section 116.3. These SIP approved operating permits requirements apply to minor sources and modifications as well as to major sources, and thus have not been wholly replaced by the State's Title V operating permits program. Public Citizen believes that the removal of the State Operating Permitting provisions is a significant change. Further, Public Citizen commented that EPA failed to provide proper notice of the repeal of this permitting program from the SIP.

On April 12, 2002, Public Citizen further commented that the removal of the operating permit provisions from the SIP is a significant substantive change. The operating permit provisions ensured that facilities actually constructed their plants in accordance with their permits and the representations in their applications and that the plants, as constructed, could meet emissions limits and rates specified in permits and applications. The Chapter 122 Title V operating permit program does not cover all sources covered by former Sections 116.1 and 116.3 and does not serve the same purpose as the Chapter 116 operating permit program. Public Citizen does not believe that EPA has demonstrated that the removal of operating permit requirements from the SIP will not interfere with attainment.

Response 14: Our proposal includes the repeal of the former provisions for Texas' state operating permits under Section 116.3(b). Section 116.3(b) provided that the TCEQ would grant an operating permit when specific demonstrations are made. In the 1993 submittal, Texas repealed Section 116.3(b) and replaced it with Section 116.110(b)—Operations Certification. The TCEQ later repealed Section 116.110(b) in the 1998 submittal. Thus, we did not approve Section 116.110(b) as submitted in 1993. Because the 1993 and 1998 submittals together repealed Texas' former regulations for State Operating Permits and for Operations Certification, these provisions are no longer part of Texas' permitting program. Because the repeal of these provisions were submitted as SIP revisions, we must act on them.

Texas' repeal of its state operating permits provisions is not a significant change in the SIP. The provisions of Chapter 116 that we proposed to approve continue to require sources to meet the conditions that were formerly required under Section 116.3(b). This is shown by comparing the former requirements of Section 116.3(b) to provisions of Chapter 116 that we proposed to approve. Our evaluation follows.

Section 116.3(b)(1) required the facility to comply with the Rules and Regulations of the TCEQ and the intent of the Texas Clean Air Act. This is now required under Section 116.111(2)(A) which provides that each preconstruction permit must ensure that the emissions “comply with all rules and regulations of the commission and with the intent of the TCAA, including protection of the health and physical property of the people.”

Section 116.3(b)(2) required the facility to be constructed and operated in accordance with the requirements and conditions contained in the permit to construct. This is now required under Section 116.115(c) which requires sources to comply with the special conditions contained in the permit document.

Section 116.3(b)(2) required the facility to be constructed and operated in accordance with the requirements and conditions contained in the permit to construct. This is now required under Section 116.115(c) which requires sources to comply with the special conditions contained in the permit document. Section 116.116(a) provides that permits are issued under the condition that the source meet representations with regard to construction plans and operation procedures in the permit application; and meet any general and special conditions attached to the permit. Section 116.116(b) further provides that a permit holder shall not vary from any representation or permit condition without obtaining a permit amendment, if the change would cause: a change in the method of control, a change in the character of the emissions, or an increase in emissions rate of any air contaminant.

Section 116.3(b)(3) required the facility to comply with applicable new source performance standards promulgated by EPA under section 111 of the Act, as amended. This is now required under Section 116.111(2)(D) which provides that the preconstruction permit must require compliance with applicable new source performance standard promulgated under 40 CFR part 60.

Section 116.3(b)(4) required the facility to comply with applicable emission standard for hazardous air pollutants promulgated by EPA under section 112 of the Act, as amended. This is now required under Section 116.111(2)(E), which provides that the preconstruction permit must require compliance with applicable National Emission Standards for Hazardous Air Pollutants promulgated under 40 CFR part 61; and Section 116.111(2)(F), which provides that the preconstruction permit must require compliance with applicable requirements of any National Emission Standards for Hazardous Air Pollutants for Source Categories under 40 CFR part 63.

Accordingly, permitted sources must continue to meet the requirements which formerly existed in Section 116.3(b). The repeal of Section 116.3(b) from the SIP is not a relaxation, as its requirements now exist in other provisions of Chapter 116. Therefore, our approval of Texas' repeal of Section 116.3(b) from the SIP is not a substantive change to the SIP.

We also do not agree that we failed to provide proper notice of the repeal of the State Operating Permit program from the SIP. This was clearly provided for in the September 24, 2001, action. We clearly stated that the proposed action was to replace the existing SIP with the recodified regulations that Texas submitted in 1993 and 1998. Specifically, we proposed to delete the existing Section 116.3, which includes Section 116.3(b). See 66 FR 48804. The repeal of Section 116.3(b) was submitted as part of the 1993 submittal which included the basis for its repeal. Consequently, the record of the repeal of Section 116.3(b) was part of the 1993 submittal.

Public Citizen provided no information to support its claim that other changes to the recodified provisions are substantive. Accordingly, we find that the recodified provisions of Chapter 116 are nonsubstantive as documented in the TSD for the proposed action.

Comment 15: On April 12, 2002, Public Citizen commented on Section 116.10(5), which is the definition of “federally enforceable.” The list of Federally enforceable limitations and conditions should include all conditions of Texas' Title V operating permits issued pursuant to Chapter 122.

Response 15: Texas' definition of “federally enforceable” in Section 116.10(5) includes each of the items specified in the Federal definitions of that term in 40 CFR 51.165(a)(1)(xiv) and 51.166(b)(17). 22 The Federal definitions do not require a State to include conditions of permits issued under Title V of the Act as Federally enforceable requirements. Because Texas' definition of “federally enforceable” meets requirements of the Federal definitions, it satisfies the requirements of 40 CFR part 51, subpart I. Accordingly, Texas' definition of “federally enforceable” is approvable.

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 18, 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).)

Throughout this document, wherever “we,” “us,” or “our” is used, we mean EPA. Information on the revisions to the carbon monoxide attainment plan for Anchorage, Alaska is organized as follows:

This action finalizes EPA's approval of the Anchorage CO attainment plan submitted by the Alaska Department of Environmental Conservation as a revision to the Alaska State Implementation Plan on January 4, 2002. A detailed description of the Anchorage CO attainment plan and EPA's review was published in a proposed rulemaking in the Federal Register on June 3, 2002 (67 FR 38218). EPA received no comments on the proposed approval.

EPA is approving the following elements of the Anchorage CO Attainment plan submitted on January 4, 2002:

A. Procedural requirements, under section 110(a)(1) of the Act;

B. Base year emission inventory, periodic emission inventory and commitments under sections 187(a)(1) and 187(a)(5) of the Act;

C. Attainment demonstration, under section 187(a)(7) of the Act;

D. The TCM programs under 182(d)(1) and 108(f)(1)(A) of the Act;

E. Contingency measures under section 187(a)(3) of the Act;

F. RFP demonstration, under sections 171(1) and 172(c)(2) of the Act; and

G. The conformity budget under section 176(c)(2)(A) of the Act and section 93.118 of the transportation conformity rule (40 CFR Part 93, Subpart A).

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 Effect 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 (Pub. L. 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. section 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. section 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 18, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

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

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

2. In person . The Agency has established an official record for this action under docket ID number OPP-2002-0190. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

In the Federal Register of February 25, 1998 (63 FR 9519) (FRL-5768-4), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C. 346a, as amended by FQPA (Public Law 104- 170), announcing the filing of a pesticide petition (PP 1F3935) by Dow Agrosciences LLC, 9330 Zionville Rd, Indianapolis, IN 46268-1054. This notice included a summary of the petition prepared by Dow Agrosciences LLC, the registrant. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.417 be amended by establishing a tolerance for combined residues of the herbicide triclopyr and its metabolites, 3,5,6-trichloro-2-pyridinol (TCP) and 2-methoxy-3,5,6-trichloropyridine (TMP), in or on fish at 3.0 parts per million (ppm) and shellfish at 3.5 ppm.

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....”

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 and to make a determination on aggregate exposure, consistent with section 408(b)(2), for a tolerance for combined residues of triclopyr and its metabolites, 3,5,6-trichloro-2-pyridinol (TCP) and 2-methoxy-3,5,6-trichloropyridine (TMP) on fish at 3.0 ppm and shellfish at 3.5 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

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. The nature of the toxic effects caused by triclopyr are discussed in the following Table 1 as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies reviewed.

The dose at which the NOAEL from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the LOAEL is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intraspecies differences.

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor (SF) is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA SF.

For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.

The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x 10 -6 or one in a million). Under certain specific circumstances, MOE calculations will be used for the carcinogenic risk assessment. In this non-linear approach, a “point of departure” is identified below which carcinogenic effects are not expected. The point of departure is typically a NOAEL based on an endpoint related to cancer effects though it may be a different value derived from the dose response curve. To estimate risk, a ratio of the point of departure to exposure (MOE cancer = point of departure/exposures) is calculated. A summary of the toxicological endpoints for triclopyr used for human risk assessment is shown in the following Table 3:

In accordance with the Agency's 1999 Guidelines for Carcinogenic Risk Assessment, triclopyr has been classified as a “Group D” chemical - not classifiable as to human carcinogenicity (not entirely negative, but yet not convincing). Although increases in the incidence of two tumor types was observed in the acceptable carcinogenicity studies (mammary gland adenocarcinomas in female mice and rats, and benign adrenal pheochromocytomas in male rats), the Agency determined that the Group D classification is appropriate because: (1) The increased incidence of these tumor types was only marginal; (2) statistical significance was not achieved by pair-wise comparisons of mammary gland adenocarcinomas in treated female mice to the concurrent controls; (3) a dose-related response in tumor incidence was not apparent in female rat mammary gland adenocarcinomas and in male rat benign adrenal pheochromocytomas following treatment with triclopyr; (4) no evidence of genotoxicity in a full battery of mutagenicity assays conducted with the triclopyr acid, triethylamine salt and the butoxyethyl ester was observed; and (5) data from structural analogs, such as chlorpyrifos, did not provide additional support for carcinogenicity. Experimental data on chlopyrifos demonstrated that this insecticide is not a carcinogen and unlike triclopyr, is more readily metabolized. Given the only marginal indication of carcinogenic potential, EPA does not expect triclopyr to pose a cancer risk to humans.

1. Dietary exposure from food and feed uses . Tolerances have been established (40 CFR 180.417) for the combined residues of triclopyr and its metabolites, 3,5,6-trichloro-2-pyridinol (TCP) and 2-methoxy-3,5,6-trichloropyridine (TMP) in or on grasses, forage and grasses, forage, hay; and the combined residues of triclopyr and its metabolites, 3,5,6-trichloro-2-pyridinol (TCP) in or on rice, grain; rice, straw; eggs; meat, fat, and meat byproducts of cattle, goats, hogs, horses, sheep, and poultry. Risk assessments were conducted by EPA to assess dietary exposures from triclopyr as follows:

i. Acute exposure . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1 day or single exposure. The Dietary Exposure Evaluation Model (DEEM®) 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. The following assumptions were made for the acute exposure assessments: A refined acute analysis was performed using anticipated residue levels for rice, fish, shellfish, and livestock commodities, default processing factors, and making use of percent crop treated (PCT) values for all commodities except fish and shellfish. A value of 1% was used wherever values < 1% were reported. For acute dietary risk, HED's LOC is > 100% aPAD. A probabilistic assessment was conducted, using 1,000 iterations in the Monte Carlo analysis.

ii. Chronic exposure . In conducting this chronic dietary risk assessment the DEEM® analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 nationwide CSFII and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: The chronic dietary exposure analysis made use of the same assumptions that went into the acute analysis described above, except that average anticipated residue levels were used in a deterministic analysis.

iii. Cancer . As described above, given the only marginal evidence supporting triclopyr's carcinogenic potential, EPA has determined qualitatively, based on the weight of the evidence, that triclopyr is not expected to pose a cancer risk to humans and, therefore has not conducted a quantitative analysis.

iv. Anticipated residue and PCT . Section 408(b)(2)(E) authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide chemicals that have been measured in food. If EPA relies on such information, EPA must require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. Following the initial data submission, EPA is authorized to require similar data on a time frame it deems appropriate. As required by section 408(b)(2)(E), EPA will issue a data call-in for information relating to anticipated residues to be submitted no later than 5 years from the date of issuance of this tolerance.

Section 408(b)(2)(F) states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if the Agency can make the following findings: Condition 1, that the data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue; Condition 2, that the exposure estimate does not underestimate exposure for any significant subpopulation group; and Condition 3, if data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The Agency used PCT information as follows: 100% fresh-water fish and shellfish; 6% rice; 1% hay.

The Agency believes that the conditions listed in Unit IV. have been met. With respect to Condition 1, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. EPA uses a weighted average PCT for chronic dietary exposure estimates. This weighted average PCT figure is derived by averaging State-level data for a period of up to 10 years, and weighting for the more robust and recent data. A weighted average of the PCT reasonably represents a person's dietary exposure over a lifetime, and is unlikely to underestimate exposure to an individual because of the fact that pesticide use patterns (both regionally and nationally) tend to change continuously over time, such that an individual is unlikely to be exposed to more than the average PCT over a lifetime. For acute dietary exposure estimates, EPA uses an estimated maximum PCT. The exposure estimates resulting from this approach reasonably represent the highest levels to which an individual could be exposed, and are unlikely to underestimate an individual's acute dietary exposure. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which triclopyr may be applied in a particular area.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for triclopyr and its metabolites, 3,5,6-trichloro-2-pyridinol (TCP) in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of triclopyr and its metabolites, 3,5,6-trichloro-2-pyridinol (TCP).

3. Cumulative exposure to substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

TCP, 3,5,6-trichloro-2-pyridinol is a metabolite of triclopyr, chlopyrifos, and chlorpyrifos-methyl. Accordingly, EPA has assessed the risk of triclopyr taking into account aggregate exposure to TCP resulting from triclopyr, chlorpyrifos, and chlorpyrifos-methyl.

1. In general . FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans.

2. Prenatal and postnatal sensitivity . The toxicology data base for triclopyr is adequate according to the Subdivision F Guideline requirements for a food-use chemical. Acceptable developmental toxicity studies in the rat and rabbit are available, as is an acceptable 2-generation reproduction study in the rat. In determining the degree of concern and residual uncertainties, the Agency examined the need for an additional safety factor to account for the concern. In both the prenatal and postnatal study in rats with triclopyr, there were clearly defined NOAELs and LOAELs for developmental and offspring toxicities. The Agency noted that although the skull malformations (exencephaly and ablepharia) are rare, they occurred at a dose (25 mg/kg/day) above the dose (5mg/kg/day) that is used for acute and chronic dietary and residential exposure risk assessments. The other anomalies seen in the rat following in utero exposure occurred even at much higher dose levels (LOAEL = 200 mg/kg/day). The Agency determined that it is unlikely that the occurrence of commonly seen developmental effects would go undetected or under estimated since the rare findings were clearly observed following both prenatal and postnatal exposures.

3. Conclusion . There is a complete toxicity data base for triclopyr and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. The Agency has determined that the Special FQPA SF of 10x can be reduced to 1x because:

i. The toxicology data base is complete for FQPA special SF determination;

ii. There is no susceptibility identified following in utero exposure in rabbits;

iii. There is qualitative susceptibility identified following in utero as well as prenatal and postnatal exposure of the rat, however, these effects occurred at a dose (25 mg/kg/day) above the dose (5 mg/kg/day) that is used for acute and chronic dietary and residential exposure risk assessments;

iv. The developmental neurotoxicity study is not required for this chemical;

v. There are no residual uncertainties associated with the exposure assessments performed for the dietary food and drinking water or the residential pathway.

In addition, the Agency determined that no traditional additional safety factor (addressing data deficiencies) is needed because: The Agency concluded that the toxicological data base for triclopyr is complete and adequate for FQPA assessment; a developmental neurotoxicity study was not required for triclopyr and no additional safety factors are needed to account for toxicology data deficiencies.

The default FQPA SF of 10X has been retained on TCP because at this time, an individual analysis has not been conducted as to whether a different safety factor would be appropriate.

To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates the drinking water levels of concern (DWLOCs) which are used as a point of comparison against the model estimates of a pesticide's concentration in water (EECs). DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + residential exposure). This allowable exposure through drinking water is used to calculate a DWLOC.

A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by EPA are used to calculate DWLOCs: 2L/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: acute, short-term, intermediate-term, chronic, and cancer.

When EECs for surface water and ground water are less than the calculated DWLOCs, EPA concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which EPA has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because EPA considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, EPA will reassess the potential impacts of residues of the pesticide in drinking water as a part of the aggregate risk assessment process.

1. Triclopyr i.— Acute risk . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food to triclopyr and its metabolites, 3,5,6-trichloro-2-pyridinol (TCP) and 2-methoxy-3,5,6-trichloropyridine (TMP) will occupy 0.6% of the aPAD for the U.S. population, 11% of the aPAD for females 13 years and older, 0.8% of the aPAD for all infants and 1% of the aPAD for children 1-6 years old. In addition, there is potential for acute dietary exposure to triclopyr in drinking water. After calculating DWLOCs and comparing them to the EECs for surface water, EPA does not expect the aggregate exposure to exceed 100% of the aPAD, as shown in the following Table 4:

ii. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to triclopyr and its metabolites, 3,5,6-trichloro-2-pyridinol (TCP) and 2-methoxy-3,5,6-trichloropyridine (TMP) from food will utilize 0.2 % of the cPAD for the U.S. population, 0.02 % of the cPAD for all infants under 1 year old and 0.2% of the cPAD for Children 1-6 years old. Based the use pattern, chronic residential exposure to residues of triclopyr is not expected. In addition, there is potential for chronic dietary exposure to triclopyr in drinking water. After calculating DWLOCs and comparing them to the EECs for surface water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the following Table 5:

iii. Short-term risk . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Triclopyr is 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 triclopyr.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded that food and residential exposures aggregated result in aggregate MOEs of 477 for females 13-50 years old, 5,950 for children 1-6 years old, 9,890 for all infants less than 1 year old, and 11,500 for children 7-12 years old. These aggregate MOEs do not exceed the Agency's LOC for aggregate exposure to food and residential uses. In addition, short-term DWLOCs were calculated and compared to the EECs for chronic exposure of triclopyr in ground and surface water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect short-term aggregate exposure to exceed the Agency's LOC, as shown in the following Table 6:

iv. Intermediate-term risk . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Triclopyr is currently registered for use(s) that could result in intermediate-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and intermediate-term exposures for triclopyr.

Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that food and residential exposures aggregated result in aggregate MOEs of 142,000 for all infants less than 1 year of age, 37,900 for children 1-6 years of age, and 51,500 for children 7-12 years of age. These aggregate MOEs do not exceed the Agency's LOC for aggregate exposure to food and residential uses. In addition, intermediate-term DWLOCs were calculated and compared to the EECs for chronic exposure of triclopyr in surface water. After calculating DWLOCs and comparing them to the EECs for surface water, EPA does not expect intermediate-term aggregate exposure to exceed the Agency's LOC, as shown in the following Table 7:

v. Cancer . Given the only marginal indication of carcenogenic potential, EPA does not expect triclopyr to pose a cancer risk to humans.

2. TCP (3,5,6-trichloro-2-pyridinol) . TCP is a metabolite of triclopyr, chlorpyrifos, and chlorpyrifos-methyl. Thus, contributions from all three chemicals are needed to adequately estimate the total amount of TCP exposure from food, water and residential sources.

TCP aggregate exposure risk assessments were performed for acute and chronic aggregate exposure (food + drinking water). TCP residential exposure risk assessments were not conducted because triclopyr residential assessments were deemed protective of TCP residential exposures for reasons explained below.

Since the Agency does not have ground and surface water monitoring data to calculate a quantitative aggregate exposure, drinking water levels of concern (DWLOCs) were calculated.

i. Acute risk . Because the aPAD for TCP is based on developmental toxicity effects, the only population subgroup of concern for acute dietary exposure is females 13-50 years old. The developmental toxicity study in rabbits had a developmental NOAEL = 25 mg/kg/day based on increased incidence of hydrocephaly and dilated ventricles seen at 100 mg/kg/day (LOAEL).

The Agency's LOC for acute exposure to TCP is for exposures greater than 100% of the aPAD of 0.025 mg/kg/day. An aggregate assessment of TCP resulting from uses of chlorpyrifos, chlorpyrifos-methyl, and triclopyr provides an acute dietary estimate for females 13-50 years old that utilizes 22% of the aPAD when using percent crop treated values for the registered uses and assuming all shellfish and freshwater fish contain triclopyr residues and 90% of the triclopyr residues are present as TCP.

The results of the TCP acute aggregate risk analysis indicate that the acute aggregate dietary risk estimate for the Females 13-50 years old population subgroup does not exceed the Agency's LOC. The aggregate TCP EEC of 510 ppb is less than the DWLOC of 590 ppb. Thus, acute aggregate risk estimates are below the Agency's LOC. Table 8 summarizes the acute aggregate exposure to TCP residues.

ii. Chronic risk . The Agency's LOC for chronic exposure to TCP is for exposures greater than 100% of the cPAD of 0.012 mg/kg/day from a 1-year chronic dog study with a NOAEL 12 mg/kg/day based on alterations in clinical chemistry levels at 48 mg/kg/day (LOAEL). An aggregate assessment of TCP resulting from uses of chlorpyrifos, chlorpyrifos-methyl, and triclopyr provides an chronic dietary estimate for all infants that utilize 0.5 % cPAD to children 1-6 years old that utilizes 1.5% of the cPAD for TCP when using PCT values for the registered uses and assuming all shellfish and freshwater fish contain triclopyr residues and 90% of the triclopyr residues are present as TCP.

The results of the TCP chronic aggregate risk analysis indicates that the chronic dietary risk estimates for all adult population subgroups do not exceed the Agency's LOC. The aggregate TCP EEC of 340 ppb are less than the DWLOCs for all population adult subgroups. The Agency notes that the chronic aggregate risk assessment for TCP exceeds the Agency's LOC (the chronic DWLOC) for infants and children.

Although the generally conservative aggregate risk assessment based on modeling data exceeds the Agency's LOC under the chronic exposure scenario for infants and children, the Agency has biomonitoring data on 416 individuals that include all pathways and routes of exposure (food, water, residential, dermal, oral, and inhalation). The Agency believes that the biomonitoring study represents a worse case scenario since 120 children that were monitored were from households where their residents had been treated with a termiticide containing chlorpyrifos. All adult exposures measured in studies represented less than 8% of the cPAD for TCP. For children 1-6 years old, 95% of the individuals had exposures that utilized 4.5% of the cPAD or less. The Agency feels the biomonitoring studies represent a worst-case scenario and that chronic exposure to TCP for children will be significantly lower than shown through biomonitoring. The Agency reached this conclusion based on the fact that chlorpyrifos and chlorpyrifos methyl were the main source of TCP compared to triclopyr. At the time of the biomonitoring study 35X more chlorpyrifos and chlorpyrifos methyl was being used than triclopyr. With the cancellation of all uses of chlorpyrifos methyl with the exception of the stored grain use, the post-construction use of chlorpyrifos as a termiticide being canceled at the end of 2002, the pre-construction use of chlorpyrifos as a termiticide being canceled in 2004/2005 unless submitted data shows acceptable exposure levels (due to the circumstances of its application significant exposure, is not expected from pre-construction use of chlorpyrifos but data has been required to confirm this assumption), and homeowner applied chlorpyrifos products having been canceled, the chronic exposure to TCP should be significantly lower than shown through the biomonitoring.

iii. Residential assessment . A residential assessment was not done for TCP. The residential uses of triclopyr are expected to result in exposure to levels of TCP levels that are approximately 100X less than the estimated triclopyr levels and the short term dermal endpoint for TCP is 5X higher than same endpoint for triclopyr. Residential TCP exposures are not expected from chlorpyrifos or chlorpyrifos-methyl. All chlorpyrifos-methyl uses (stored grain only) should be completely phased out by 2004. For chlorpyrifos, the following reductions are in progress: Pre-construction termiticide uses will be completely phased out by 2004 unless submitted data shows acceptable risks, post-construction termiticide uses will be completely phased out by 2002, homeowner applied products have been canceled, and major reductions in professionally applied residential lawn/ornamental products are expected.

3. Determination of safety for Triclopyr and TCP . 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 triclopyr and TCP.

Adequate enforcement methodology (capillary gas chromatography with mass selective detection (GC/MSD)(GRM 97.02) is available to enforce the tolerance expression. The method may be requested from: Paul Golden, Analytical Chemistry Lab, Office of Pesticide Programs, Environmental Protection Agency, Environmental Science Center, 701 Maples Road, Fort Meade, MD 20755-5350; telephone number: (410) 305-2960; e-mail address: golden.paul@epa.gov.

There are no established or proposed Codex, Canadian, or Mexican maximum residue levels (MRLs) for triclopyr residues. Therefore, harmonization is not an issue at this time.

Therefore, the tolerance is established for combined residues of triclopyr and its metabolites, 3,5,6-trichloro-2-pyridinol (TCP) and 2-methoxy-3,5,6-trichloropyridine (TMP) in or on fish at 3.0 ppm and shellfish at 3.5 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-2002-0190 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 18, 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 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Rm. 104, Crystal Mall # 2, 1921 Jefferson Davis Hwy., Arlington, VA. 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 (703) 603-0061.

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 20460-0001.

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 20460-0001.

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VI.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket ID number OPP-2002-0190, 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 20460-0001. 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 a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104--113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance 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).

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

• Crop producers (NAICS 111)

• Animal producers (NAICS 112)

• Food Manufacturing (NAICS 311)

• Pesticide Manufacturing (NAICS 32532)

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 this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Docket . EPA has established an official public docket for this action under docket ID number OPP-2002-0256. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

2. Electronic access . You may access this Federal Register document electronically through the EPA Internet under 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.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. Once in the system, select “search,” then key in the appropriate docket ID number.

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 a tolerance for combined residues of the insecticide indoxacarb, [(S)-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl] amino]carbonyl]indeno[1,2-e][1,3,4]oxadiazine-4a(3H)-carboxylate] and its R-enantiomer [(R)-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl] amino]carbonyl]indeno[1,2-e][1,3,4]oxadiazine-4a(3H)-carboxylate], in or on cranberry at 0.5 parts per million (ppm). This tolerance will expire and is revoked on December 31, 2004. EPA will publish a document in the Federal Register to remove the revoked tolerance 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 of the FFDCA 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) of the FFDCA 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) of the FFDCA 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 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 of 1996 (FQPA). EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

The Massachusetts Department of Food and Agriculture have indicated that populations of the cranberry weevil in the state have developed resistance to the registered alternative, chlorpyrifos. Without adequate control, this pest was expected to result in significant crop damage and yield losses for cranberry growers, leading to significant economic losses. The state requested indoxacarb for this use, since field trials have shown it to be effective at controlling this pest. EPA has authorized under FIFRA section 18 the use of indoxacarb on cranberry for control of the cranberry weevil in Massachusetts. After having reviewed the submission, EPA concurs that emergency conditions exist for this State.

As part of its assessment of this emergency exemption, EPA assessed the potential risks presented by residues of indoxacarb in or on cranberry. In doing so, EPA considered the safety standard in section 408(b)(2) of the FFDCA, and EPA decided that the necessary tolerance under section 408(l)(6) of the FFDCA 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 issuing this tolerance without notice and opportunity for public comment as provided in section 408(l)(6) of the FFDCA. Although this tolerance will expire and is revoked on December 31, 2004, under section 408(l)(5) of the FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on cranberry 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 a level that was authorized by this tolerance at the time of that application. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because this tolerance is being approved under emergency conditions, EPA has not made any decisions about whether indoxacarb meets EPA's registration requirements for use on cranberry or whether a permanent tolerance for this use would be appropriate. Under these circumstances, EPA does not believe that this tolerance serves as a basis for registration of indoxacarb by a State for special local needs under FIFRA section 24(c). Nor does this tolerance serve as the basis for any State other than Massachusetts to use this pesticide on this crop under section 18 of FIFRA without following all provisions of EPA's regulations implementing FIFRA section 18 as identified in 40 CFR part 166. For additional information regarding the emergency exemption for indoxacarb, 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 of the FFDCA 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) of the FFDCA , 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 indoxacarb and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for a time-limited tolerance for combined residues of indoxacarb in or on cranberry at 0.5 ppm.

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. The nature of the toxic effects caused by indoxacarb, a summary of the toxicological dose and endpoints for indoxacarb for use in this human risk assessment, and the most recent estimated aggregate risks resulting from registered uses are discussed in the Federal Register for July 18, 2002 (67 FR 47299) (FRL-7186-2) final rule establishing tolerances for residues of indoxacarb in/on alfalfa forage, alfalfa hay, peanut, peanut hay, potato, soybean seed, soybean aspirated grain fractions, and soybean hulls.

Refer to the July 18, 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, including this use on cranberry.

EPA assessed risk scenarios for indoxacarb under acute and chronic scenarios. Because there are no residential uses or exposure scenarios, short- and intermediate-term aggregate risk assessments were not conducted. Nor was a cancer aggregate risk assessment conducted, because indoxacarb is classified as “not likely” to be a human carcinogen.

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.

The following assumptions were made for the acute exposure assessments: An acute Tier 2 (partially refined) dietary assessment was performed with use of anticipated residues (ARs) from field trial data, processing factors (where applicable), and assumed 100 percent of crop treated (%CT). ARs for meat, milk, poultry, and eggs were also calculated.

Using these exposure assumptions, EPA concluded that indoxacarb acute exposures from food consumption are below levels of concern (<100% of the acute Population Adjusted Dose (aPAD)) for the general US population and all population subgroups. The amount of the aPAD utilized for the most highly exposed subgroup, Females (13-50 yrs old) is 41%. Acute risk from dietary exposure for the most highly exposed infant/children subpopulation, Children (1-6 yrs old) is at 12% of the aPAD. For the general US Population and all other population subgroups, acute risk from dietary exposure is estimated at 6% of the aPAD. In addition, despite the potential for acute dietary exposure to indoxacarb in drinking water, after calculating drinking water levels of concern (DWLOCs) and comparing them to conservative model estimated environmental concentrations (EECs) of indoxacarb in surface and ground waters, EPA does not expect the aggregate exposure to exceed 100% of the aPAD, as shown in the following Table 1.

The following assumptions were made for the chronic exposure assessments: The chronic dietary assessment assumed tolerance level residues, default processing factors and 100% CT. Refinements using ARs, actual processing factors, and %CT data would result in lower chronic dietary exposure estimates.

Using these exposure assumptions, EPA concluded that indoxacarb chronic exposures from food consumption are below levels of concern (<100% of the cPAD) for the general US population and all population subgroups. The cPAD utilized for the most highly exposed subgroup, Children (1-6 yrs old) is 90%. Chronic risk from dietary exposure for Infants (<1 year old) is 4% of the cPAD, and for Children (7-12 yrs old) it is 52% of the cPAD. Chronic dietary risk for the general US Population is 36% of the cPAD, and the estimated chronic risk for all other population subgroups is below this level. In addition, despite the potential for chronic dietary exposure to indoxacarb in drinking water, after calculating DWLOCs and comparing them to conservative model EECs of indoxacarb in surface and ground waters, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the following Table 2.

Short and intermediate term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Indoxacarb is not registered for use on any sites that would result in residential exposure, and thus short- and intermediate-term exposures are not expected, so these risk assessments were not conducted.

Indoxacarb is classified as “not likely” to be a human carcinogen, so the Agency did not conduct a cancer aggregate risk assessment.

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 indoxacarb residues.

Adequate enforcement methodology (HPLC/UV Method AMR 2712-93) 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 20460-0001; telephone number: (703) 305-5229; e-mail address: furlow.calvin@epa.gov.

There are no Codex, Canadian, or Mexican maximum residue limits established for indoxacarb residues in/on any crop commodities. Therefore, no compatibility problems exist for this tolerance.

A maximum of four applications may be made. A maximum of 0.11 pound active ingredient (lb. a.i.) may be applied using ground, aerial, or chemigation equipment. No more than 0.44 lb. a.i. may be applied per acre per season.

Therefore, the tolerance is established for combined residues of indoxacarb, [(S)-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl] amino]carbonyl]indeno[1,2-e][1,3,4]oxadiazine-4a(3H)-carboxylate] and its R-enantiomer [(R)-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl] amino]carbonyl]indeno[1,2-e][1,3,4]oxadiazine-4a(3H)-carboxylate], in or on cranberry at 0.50 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, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) of the FFDCA 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) of the FFDCA, as was provided in the old sections 408 and 409 of the FFDCA. 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-2002-0256 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 18, 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 (1900C), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Rm.104, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. 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 (703) 603-0061.

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 20460-0001.

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 20460-0001.

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.1. Mail your copies, identified by the docket ID number OPP-2002-0256, 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 20460-0001. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.1. 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 a time-limited tolerance under section 408 of the FFDCA. 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 section 408 of the FFDCA, such as the tolerance 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 section 408(n)(4) of the FFDCA. 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).

The site to be deleted from the NPL is: Tulalip Landfill Site, Snohomish County, Washington.

A Notice of Intent to Delete for this site was published in the Federal Register on June 7, 2002 (67 FR 39326). The closing date for comments was July 8, 2002. EPA received two comment letters. One comment letter received by EPA was from the Department of Interior (the Department) requesting that the deletion be delayed because a study conducted last year identified that some of the osprey in the Everett Harbor vicinity were having problems with reproduction and deformities. EPA has determined that the selected remedy for Tulalip Landfill has been, and still is, protective of human health and the environment. Monitoring has demonstrated that the remediated landfill represents only a minor source of contamination to the highly industrialized Everett Harbor. The Department is in the process of conducting a new study in the Everett Harbor and is looking specifically at the osprey issue. EPA welcomes the opportunity to discuss the results of the new study and, as necessary, at ways to evaluate the problem on a larger harbor-wide basis which includes several other sources of contamination. The Tulalip Tribes (the lead Natural Resource Trustee for this site) and the National Oceanic and Atmospheric Administration remain supportive of the deletion.

The other commentor asked if EPA is changing the requirement in the Record of Decision (ROD) to maintain the selected remedy in perpetuity. EPA is not changing the requirement in the ROD to maintain the selected remedy in perpetuity. Consistent with the ROD, the Operation and Maintenance (O&M) Plan will be fully implemented at the site in perpetuity, or until EPA determines that implementation of the O&M Plan is no longer necessary. EPA has a legal commitment from Washington Waste Hauling and Recycling to conduct O&M activities for the first four years, and the Tulalip Tribes for the next 26 years. These agreements are contained in a consent decree with EPA. The need to continue O&M activities after the first 30 years will be revisited at that time. Institutional controls, including land use restrictions, groundwater use restrictions, environmental buffer zones and maintenance of an entrance sign, are in place and will continue to be implemented in perpetuity.

The same commentor also asked if EPA is confident that mechanisms for Tulalip Landfill are sufficient to ensure that perpetual care is maintained. EPA is confident that appropriate mechanisms are in place with the Tulalip Tribes to implement the ROD, including institutional controls.

EPA identifies sites that appear to present a significant risk to public health, welfare, or the environment and it maintains the NPL as the list of those sites. Any site deleted from the NPL remains eligible for Fund-financed remedial actions in the unlikely event that conditions at the site warrant such action. Section 300.425(e)(3) of the NCP states that Fund-financed actions may be taken at sites deleted from the NPL. Deletion of a site from the NPL does not affect responsible party liability or impede Agency efforts to recover costs associated with response efforts.

The Site to be deleted form the NPL is the Del Norte County Pesticide Storage Area Superfund Site, in Crescent City, California.

A Notice of Intent to Delete for this Site was published in the Federal Register August 8, 2002 (67 FR 51528). The closing date for comments on the Notice of Intent to Delete was September 9, 2002. No comments were received, therefore, EPA has not prepared a Responsiveness Summary. EPA identifies sites that appear to present a significant risk to public health, welfare, or the environment, and it maintains the NPL as the list of those sites. Section 300.425(e)(3) of the NCP states that Fund-financed actions may be taken at sites deleted from the NPL in the unlikely event that conditions at these sites warrant such actions. Deletion of a site from the NPL does not affect responsible party liability or impede EPA's efforts to recover costs associated with response efforts.

The Area 2A Catch Sharing Plan (Plan) for Pacific halibut off Washington, Oregon, and California was implemented for 2002 via final rule on March 20, 2002 (67 FR 12885). Those regulations established the 2002 combined north central and south central Oregon subquota for all-depth sport fisheries at 229,103 lb (104 mt) This fishery is managed with two main all-depth openings in May and in August, with subquotas for the separate openings. If the main May all-depth opening does not take all of the halibut set aside for that opening, NMFS coordinates with the Oregon Department of Fish and Wildlife (ODFW) and with the International Pacific Halibut Commission (IPHC) to reopen the fishery in May and June on pre-determined days. Any May all-depth quota that is not taken in the main May opening or in subsequent May-June openings is held for use in the August all-depth fishery. If the main August all-depth opening does not take all of the halibut set aside for that fishery, NMFS again coordinates with ODFW and IPHC to reopen the fishery in August and September on pre-determined days. For 2002, the Plan's final rule set pre-determined additional opening days for August-September on August 23-24 and on September 20-21.

Oregon central coast sport halibut landings have proceeded at an unusually slow pace in 2002. Participating anglers and charterboat operators attribute the decreased fishery participation to both bad weather days and to a lower nation-wide public interest in recreational traveling. The May all-depth fisheries took approximately 126,255 lb (57 mt) which is 45,189 lb (21 mt) below the 171,444 lb (78 mt) of halibut available for these fisheries.

The halibut quota not taken in the main May all-depth opening and the subsequent May-June all-depth reopenings was made available to the August all-depth opening, increasing the pre-season August all-depth quota from 57,660 lb (26 mt) to 102,949 lb (46.7 mt). The main August all-depth opening was held on August 2 and 3. Because this main opening again did not take the quota available to the August-September all-depth fisheries, NMFS conferred with ODFW and IPHC and re-opened the fishery on the pre-determined reopening dates of August 23-24.

In reviewing Oregon central coast sport halibut landings through the August 23-24 fishery, ODFW alerted NMFS and IPHC that an additional 39,732 lb (18 mt) of halibut remained in the all-depth quota. In addition, the state agency also reported that the Oregon central coast nearshore fishery had taken just 2,017 lb (0.9 mt) of its 19,797 lb (9.0 mt) quota through the end of August.

NMFS reviewed the Plan, the 2002 halibut fishery regulations, and central Oregon landings through the end of August with ODFW and IPHC via telephone conference on August 30, 2002. Under the Plan, NMFS may move halibut quota from the nearshore fishery to the all-depth fishery if it appears unlikely that the nearshore fishery will use all of its quota before the season closure on September 30. Also under paragraph (f)(5) of the Plan, “Flexible Inseason Management Measures,” NMFS may take inseason action to revise or add fishing season dates if the action is necessary to allow allocation objectives to be met, and if the action will not result in exceeding the catch limit for the area.

In reviewing available halibut quota from the nearshore and all-depth fisheries and landings patterns in the all-depth fisheries for 2002, NMFS, ODFW, and the IPHC determined that both the all-depth fishery and the nearshore fishery landings for 2002 would likely be well below their quotas without additional inseason measures to allow all-depth fishing beyond the pre-determined reopening dates of September 20 and 21. In conferring, the agencies agreed that by shifting 15,000 lb (6.8 mt) of quota from the nearshore fishery to the all-depth fishery, adequate quota would remain available to the nearshore fishery for the remainder of the 2002 season. The agencies also agreed that by adding 15,000 lb (6.8 mt) to the halibut available to the all-depth fishery for a total of 54,732 lb (24.8 mt,) sufficient quota would be available to provide additional all-depth opening dates. The all-depth halibut fishery is expected to take approximately 10,000 lb (4.5 mt) to 12,000 lb (5.4 mt) per day.

NMFS discussed potential additional opening dates with ODFW and IPHC and determined that re-opening the fishery for 4 consecutive days, September 18-21, would be preferable to re-opening on the pre-determined dates of September 20-21 and then again on the following weekend of September 27-28. Oregon's recreational hunting season opens the last weekend of September and many of the persons who would normally participate in recreational halibut fisheries are expected to also participate in the start of the hunting season. NMFS determined that allowing additional all-depth opportunities for the purpose of maximizing angler access to the quota would be best accomplished by providing additional opening dates prior to the start of the Oregon hunting season.

To meet the objectives of the Plan and for the reasons stated above, NMFS has determined that an inseason management action is needed to provide additional opening dates for the Oregon central coast all-depth sport halibut fishery on September 18 and 19, 2002. This inseason action would set the final all-depth opportunity for Oregon central coast sport halibut fishing for September 18-21.

For the reasons stated above, NMFS announces the following change to the 2002 Pacific halibut management measures (67 FR 12885, March 20, 2002).

1. On page 12895, in section 24. Sport Fishing for Halibut, paragraph (4)(b)(v)(A)(3) is revised to read as follows:

The harvest guideline for Pacific sardine for the 2002 fishing season was published at 66 FR 66811 (December 27, 2001). For the fishing season January 1, 2002, through December 31, 2002, the harvest guideline for the Pacific coast of 118,442 mt was calculated according to the formula in the FMP, of which 39,481 mt was allocated north of Pt. Piedras Blancas, CA, and 78,961 mt was allocated south of Pt. Piedras Blancas, CA, according to the allocation procedure in the FMP. The procedure was adopted to prevent any segment of the fishing industry from gaining an unfair harvesting advantage due to the regional availability of sardine as it migrates along the U.S. West coast. On October 1 of each year, the remaining harvest guideline north and south of Pt. Piedras Blancas, CA, is totaled and divided equally between the two areas. Fishermen will be notified of the reallocation by marine radio and/or by NMFS hotline.

As of August 26, 2002, 32,002 mt of the 39,481-mt allocation north of Pt. Piedras Blancas, CA, had been landed. The harvest rate indicates that 39,481 mt will be reached on September 13, 2002, which requires that the fishery north of Pt. Piedras Blancas, CA, be closed until calculations can be completed on the harvest guideline remaining so that reallocation can occur on or about October 1, 2002. Permit holders were notified of this closure via letters mailed September 6, 2002, and via the Southwest Region website at http://caldera.sero.nmfs.gov. For the reasons stated here and in accordance with the FMP and its implementing regulations at 50 CFR 660.508, the fishery for Pacific sardine north of Pt. Piedras Blancas, CA, will be closed at 0001 hrs September 14, 2002, through December 31, 2002, or until the harvest guideline is reallocated by notice in the Federal Register except that up to 45 percent by weight of Pacific mackerel, northern anchovy, jack mackerel, or market squid may consist of Pacific sardine.

This action is required by 50 CFR 660.509 and is exempt from review under Executive Order 12866.