GIPSA representatives work closely with the USA Rice Federation (USARF) and Rice Millers' Association (RMA) representatives to examine the effectiveness of the U.S. Standards for Rice in today's marketing environment. Through discussions, it appears that most of the current standards continue to meet consumer/processing needs. However, changing market trends demand that certain changes be made pertaining to the acceptable degrees of milling in milled rice. Accordingly, GIPSA is making the appropriate changes to the standards to include a hard milled milling degree to the standards and removing the lightly milled milling degree from the standards.

The U.S Standards for Milled Rice currently recognize three degrees of milling: “well-milled”, “reasonably well-milled”, and “lightly milled”. Well-milled is the highest degree (or whitest) of milling degrees addressed by the standards. The degree of milling is based on the extent to which the bran layers are removed from the kernels of rice.

In recent years, the U.S. milled rice market has changed, as domestic and international customers alike demand a higher degree of milling. To satisfy this demand, U.S. rice mills routinely mill their rice to a degree surpassing the USDA well-milled standard. This process or practice, commonly referred to as “hard milled,” efficiently removes any loose bran adhering to the surface of the milled rice and enhances the milled rice's appearance by giving it a brighter, whiter look.

Hard milled, by many accounts, represents the preferred degree of milling by today's customers. To satisfy the growing demand for hard milled rice, GIPSA, in cooperation with the USARF and the RMA, established a visual reference standard representing the minimum degree with which millers must mill their rice in order to receive the hard milled designation.

To provide an immediate and temporary means of recognizing and standardizing the manner in which hard milled is evaluated and documented on a certificate, the parties worked together to permit such an assessment. When requested, lots meeting the visual standard may have affixed in the “Remarks” section of the certificate the statement “This rice meets or exceeds the minimum requirements for hard milled rice.”

However, the highest degree of milling permitted for certification purposes is well-milled, regardless of the extent of milling. When hard milled is requested, the resulting certificate indicates that the rice is well-milled in the “Factor Information” section, and in the “Remarks” section indicates that the rice meets or exceeds the requirements for hard milled.

To eliminate possible confusion with both designations on one certificate, and at industries' request, GIPSA is amending the standards to include hard milled as another milling degree. The revision only serves to identify hard milled as being another milling option and recognizes it as being a higher degree of milling than well-milled.

The introduction of hard milled will not have any impact on the minimum milling requirements for grades U.S. Nos. 1 and 2, as well-milled will continue to be the minimum milling degree requirement for these grade levels.

Also, through discussions, USARF and RMA revealed that the demand for lesser degrees of milling, specifically lightly milled, is non-existent. U.S. mills do not mill or ship lightly milled rice as there has been no demand for it.

Since it is generally recognized that lightly milled has outlived its usefulness as a meaningful marketing standard, the standards will be revised to remove lightly milled from the list of milling degree requirements. As such, the degree of milling for milled rice will now include hard milled, well-milled, and reasonably well-milled. For grading purposes, any reference to lightly milled with respect to the minimum milling requirements will be replaced by reasonably well-milled. Samples failing to meet the minimum requirement for reasonably well-milled will be considered “Undermilled Milled Rice.”

GIPSA is amending § 800.306 and § 800.315 to add “hard milled” as a milling degree and to remove “lightly milled” from the milling requirements. GIPSA is also amending §§ 800.310, 800.311, 800.312, and 800.313 by replacing “lightly milled” with “reasonably well-milled”. Also, GIPSA is correcting miscellaneous typographical and wording errors in the milled rice standards, and deleting the reference to the Motomco Moisture Meter in the definition of “moisture.” Due to changing technology, the Motomco Moisture Meter may soon be obsolete. Therefore, GIPSA is revising the definition of moisture to a more generic wording which excludes the mention of any specific instrument.

We are publishing this rule without a prior proposal because we view this action as noncontroversial and anticipate no adverse public comment. This rule will be effective, as published in this document, on December 1, 2002, unless we receive written adverse comments or written notices of intent to submit adverse comments by October 31, 2002.

Adverse comments are comments that suggest the rule should not be adopted or that suggest the rule should be changed.

If we receive written adverse comments or written notices of intent to submit adverse comments, we will publish a notice in the Federal Register withdrawing this rule before the effective date and publish a proposed rule for public comment. Following the close of that comment period, the comments will be considered, and a final rule addressing the comments will be published.

As discussed above, if we receive no written adverse comments nor written notice of intent to submit adverse comments by June 30, 2002, this direct final rule will become effective on August 1, 2002.

This rule has been determined to be nonsignificant for the purpose of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), it has been determined that this rule will not have a significant economic impact on a substantial number of small entities. Under the provisions of the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 et seq. ), it is not mandatory for rice to be officially inspected. GIPSA has determined that most users of the official inspection service and those entities that perform these services do not meet the requirements for small entities. GIPSA estimates there are approximately 45 rice mills within the United States. In addition to GIPSA, there are 2 cooperating States that inspect rice. Even though some users could be considered small entities, this rule should not impose addition costs, but instead further aligns the standards with current market practices. Further, the regulations are applied equally to all entities.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have a retroactive effect. This action will not preempt any State or local laws, regulations, or policies unless they present irreconcilable conflict with this rule. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule.

In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection and recordkeeping requirements in Part 868 have been previously approved by OMB No. 0580-0013.

On August 30, 2002, the FAA issued emergency AD 2002-18-52, applicable to all Boeing Model 737-600, -700, -700C, -800, and -900 series airplanes; Model 747 series airplanes; and Model 757 series airplanes. That AD requires revision of the FAA-approved airplane flight manual (AFM) to advise the flight crew of certain minimum fuel levels that must be maintained in the center fuel tanks, and to prohibit use of the horizontal stabilizer tank, if installed, on Model 747-400 series airplanes. That AD also prohibits the installation of certain spare fuel pumps (those having part numbers with the suffix “-4”). That AD permits the AFM revision and placard to be removed if all fuel pumps have been inspected to ensure that the wire bundle is properly routed in the pump.

That action was prompted by reports indicating that fuel pumps on certain Boeing Model 737, 747, and 757 series airplanes have failed as a result of chafing of the stator lead wire bundle, which occurred when the stator lead wire bundle came into contact with the rotor in the pump motor. The pumps eventually failed when the pump power was short-circuited to the rotor and the circuit protection device tripped. Examination of failed pumps showed that arcing had occurred in the pump bearings both inside and outside of the explosion-proof cavity of the pump. Such arcing could result in an ignition source in the fuel tank. It is not known how long the pumps operated with arcing occurring before the circuit-protection device tripped. The fuel pump failures have been attributed to the manufacturing assembly process during which the stator lead wire bundle was improperly installed and positioned in the motor-impeller housing. The actions required by that AD are intended to ensure that the center wing tank pump inlets will be covered with fuel during pump operation, which will prevent fuel vapors from coming into contact with any ignition source resulting from arcing to the pump rotor. The other main wing tank fuel pump inlets are not normally uncovered during operation. The actions of that AD are intended to prevent fire/explosion in the center fuel tank.

Since the issuance of AD 2002-18-52, the FAA has learned of additional cases of lead wire chafing in Hydro-Aire pumps of designs other than those identified in that AD. A review of records revealed additional cases of lead wire chafing and improper lead wire bundle installation. One of those pumps had lead wire chafing after only a 45-minute period of acceptance test running. In addition, one pump failed in recent Model 747 flight testing due to stator lead wire chafing. Examination of the pump from that airplane revealed arcing to the rotor. In addition, the manufacturer reported that pumps had been inspected at the vendor's overhaul facility; of 16 pumps inspected, 25% were found improperly assembled. All of the above failures were found on pumps that were not identified in AD 2002-18-52 (which identified only those part numbers having the suffix “-4”). Evidence of stator lead wire splicing discovered on pumps overhauled by repair facilities suggests there may have been similar chafing damage.

The reported failures on all the pumps have been determined to be caused by improper assembly of the pumps at Hydro-Aire or repair facilities, and by a design that allows improper assembly to occur. Improper assembly allows the wires to be pinched or trapped where they are worn by the pump rotor when it operates. The combination of pinched/trapped wires in a fuel pump with arcing/shorting when the pump inlet is not covered by tank fuel may result in ignited tank vapors.

The FAA has reviewed and approved the following Boeing alert service bulletins, all dated September 23, 2002:

The service bulletins describe procedures for inspecting the fuel pumps of the center wing tank, horizontal stabilizer tank, center auxiliary tank (or body tank, located in the aft end of the forward cargo compartment), and auxiliary fuel tanks 1 and 4, using X-ray methods to determine whether the wire bundle is properly routed in the pump.

The FAA also approved Crane Hydro-Aire Service Bulletin Crane Hydro-Aire Motor-Impeller-28-01, dated September 17, 2002, which describes detailed procedures for the X-ray inspection.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of this same type design, this airworthiness directive supersedes AD 2002-18-52 to concurrently require removal of the currently required AFM revisions (advising the flightcrew of certain minimum fuel levels that must be maintained in the center fuel tanks) and insertion of revised versions of the corresponding AFM sections. This AD also requires installation of placard(s) to alert the flightcrew to the operating restrictions; and prohibits installation of fuel pumps unless they have been inspected using X-ray methods to ensure that the wire bundle is properly routed in the pump. In addition, if all fuel pumps for the center wing, horizontal stabilizer, center auxiliary tanks, and auxiliary fuel tanks 1 and 4 on an airplane have been inspected to ensure that the wire bundle is properly routed in the pump since the most recent assembly of the end cap and motor-impeller housing—whether in manufacturing, after maintenance or inspection, or after overhaul—the applicable AFM revision and placard may be removed. The AD also includes a provision for separate relief from the prohibition against operation of the horizontal stabilizer tank.

This AD identifies the unsafe condition as fuel vapors potentially coming into contact with an ignition source in the center wing fuel tank, horizontal stabilizer fuel tank, center auxiliary fuel tank, or auxiliary fuel tanks 1 and 4, which could result in fire/explosion. AD 2002-18-52 did not identify the center auxiliary fuel tank or auxiliary fuel tanks 1 and 4, because no “-4” pump is installed in any of those tanks.

The AFM language required by AD 2002-18-52 has been revised to remove certain wording as a means to provide clarification regarding the requirement to shut off the fuel pumps and to add procedures to address fuel pump failures.

The compliance time for revising the AFM to include the operational restrictions is 14 days, whereas the compliance time for the corresponding action of AD 2002-18-52 was 4 days. The unsafe condition is the same as that for AD 2002-18-52, and is considered by the FAA to require urgent action. However, because of the significant amount of service experience on the affected fuel pumps in this case, and because of the relatively small number of known events of chafing, the FAA has determined that the 14-day compliance time will allow operators sufficient time to perform X-ray inspections on airplanes used on routes that require maximum fuel capacity, without compromising safety.

The service bulletins recommend inspecting all fuel pumps; however, this AD requires that the pumps be inspected only prior to pump installation or to provide relief from the required operating restrictions regarding fuel pump operation.

The effectivity of the Boeing service bulletins includes only certain line numbers for each airplane model. However, the applicability of this AD includes all airplanes of the affected models. Although the manufacturer has addressed the unsafe condition for airplanes in production, the FAA has determined that it is possible that an airworthy airplane may later have a suspect part installed, rendering the airplane no longer airworthy; therefore, this AD is applicable to all airplanes.

Whereas the service bulletins refer to the “body tank,” this AD identifies that part as the “center auxiliary fuel tank.”

This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking.

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 shall 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.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

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 rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-249-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will 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. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it 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.

FAA Order 7400.9J, Airspace Designations and Reporting Points, dated August 31, 2001, and effective September 16, 2001, listed Class A, Class B, Class C, Class D, and Class E airspace areas and reporting points. Due to the length of these descriptions, the FAA requested approval from the Office of the Federal Register to incorporate the material by reference in the Federal Aviation Regulations § 71.1 (14 CFR 71.1). The Director of the Federal Register approved the incorporation by reference of FAA Order 7400.9J in § 71.1, effective September 16, 2001, through September 15, 2002. During the incorporation by reference period, the FAA processed all proposed changes of the airspace listings in FAA Order 7400.9J in full text as proposed rule documents in the Federal Register . Likewise, all amendments of these listings were published in full text as final rules in the Federal Register . This rule reflects the periodic integration of these final rule amendments into a revised edition of Airspace Designations and Reporting Points, Order 7400.9K. The Director of the Federal Register has approved the incorporation by reference of FAA Order 7400.9K in § 71.1, as of September 16, 2002, through September 15, 2003. This rule also explains the procedures the FAA will use to amend the airspace designations incorporated by reference in part 71. Sections 71.5, 71.31, 71.33, 71.41, 71.51, 71.61, 71.71, 71.79, and 71.901 are also updated to reflect the incorporation by reference of FAA Order 7400.9K.

This action amends part 71 of the Federal Aviation Regulations (14 CFR part 71) to reflect the approval by the Director of the Federal Register of the incorporation by reference of FAA Order 7400.9K, effective September 16, 2002, through September 15, 2003. During the incorporation by reference period, the FAA will continue to process all proposed changes of the airspace listings in FAA Order 7400.9K in full text as proposed rule documents in the Federal Register . Likewise, all amendments of these listings will be published in full text as final rules in the Federal Register . The FAA will periodically integrate all final rule amendments into a revised edition of the Order, and submit the revised edition to the Director of the Federal Register for approval for incorporation by reference in § 71.1.

The FAA has determined that this action: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. This action neither places any new restrictions or requirements on the public, nor changes the dimensions or operating requirements of the airspace listings incorporated by reference in part 71. Consequently, notice and public procedure under 5 U.S.C. 553(b) are unnecessary. Because this action will continue to update the changes to the airspace designations, which are depicted on aeronautical charts, and to avoid any unnecessary pilot confusion, I find that good cause exists, under 5 U.S.C. 553(d), for making this amendment effective in less than 30 days.

Pursuant to the provisions of the 1970 UNESCO Convention, codified into U. S. law as the Convention on Cultural Property Implementation Act (Public Law 97-446, 19 U.S.C. 2601 et seq)(the Act), the United States entered into a bilateral agreement with Guatemala on September 29, 1997 (Memorandum of Understanding Between the Government of the United States of America and the Government of the Republic of Guatemala Concerning the Imposition of Import Restrictions on Archaeological Objects and Materials from the Pre-Columbian Cultures of Guatemala) (the MOU), concerning the imposition of import restrictions on certain archaeological material from Guatemala. The U.S. Customs Service issued T.D. 97-81 (62 FR 51771, October 3, 1997) amending § 12.104g(a) of the Customs Regulations (19 CFR 12.104g(a)) to reflect the imposition of these restrictions for a period not to exceed five years. The restrictions cover Maya material from the Peten Lowlands and related pre-Columbian material from the Highlands and the Southern Coast of Guatemala. The restrictions became effective on October 3, 1997.

Prior to the issuance of T.D. 97-81, Customs issued T.D. 91-34 (56 FR 15181, April 15, 1991) that imposed emergency import restrictions on certain archaeological material from the Peten Region of Guatemala. Under T.D. 91-34, § 12.104g(b) (19 CFR 12.104g(b)) of the regulations pertaining to emergency restrictions was amended accordingly. These emergency restrictions were extended for a period of three years under T.D. 94-84 (59 FR 55528, November 7, 1994). Subsequently, the same archaeological material covered by T.D. 91-34 (and the extension of T.D. 94-84) was subsumed in T.D. 97-81 when it was published in 1997, at which time the emergency restrictions of T.D. 91-34 (and T.D. 94-84) were removed from § 12.104g(b).

On August 18, 2002, the Assistant Secretary of Educational and Cultural Affairs, Department of State, concluded, among other things, that the cultural patrimony of Guatemala continues to be in jeopardy from pillage of irreplaceable materials representing its Pre-Columbian heritage and made the necessary determinations under 19 U.S.C. 2602(e) and 2602(a) to extend the import restrictions for a period not to exceed five years (in the Determination to Extend the MOU). The Government of the United States and the Government of the Republic of Mali exchanged diplomatic notes on September 20, 2002, agreeing to extend the MOU effective September 29, 2002. Accordingly, Customs is amending § 12.104g(a) to reflect the extension of the import restrictions.

The List of Designated Archaeological Material from Guatemala describing the materials covered by these import restrictions is set forth in T.D. 97-81. The list and accompanying image database may also be found at the following internet Web site address: http://exchanges.state.gov/culprop .

The restrictions on the importation of these archaeological materials from Guatemala are to continue in effect for five years from September 29, 2002. Importation of these materials continues to be restricted unless the conditions set forth in 19 U.S.C. 2606 and 19 CFR 12.104c are met.

Because the amendment to the Customs Regulations contained in this document extends import restrictions already imposed on the above-listed cultural property of Guatemala by the terms of a bilateral agreement entered into in furtherance of a foreign affairs function of the United States, pursuant to the Administrative Procedure Act (5 U.S.C. 553(a)(1)), notice of proposed rule-making, public procedure, and a delayed effective date are not required.

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply. Accordingly, this final rule is not subject to the regulatory analysis or other requirements of 5 U.S.C 603 and 604.

This amendment does not meet the criteria of a “significant regulatory action” as described in Executive Order 12866.

The principal author of this document was Bill Conrad, Regulations Branch, Office of Regulations and Rulings, U.S. Customs Service.

Throughout this document wherever “we”, “us,” or “our” is used, we mean the EPA. Throughout this document, whenever “Baton Rouge Area” or “Baton Rouge Ozone Nonattainment Area” is used, we mean the area which includes the parishes of Ascension, East Baton Rouge, Iberville, Livingston, and West Baton Rouge in the State of Louisiana. See 40 CFR 81.319.

The EPA is approving changes to the State of Louisiana's nonattainment NSR procedures for the five-parish Baton Rouge ozone nonattainment area. These revisions to the nonattainment NSR procedures are part of the changes the state is making to the SIP to address the CAA pollution control requirements for ozone nonattainment areas. These changes revise the Louisiana Administrative Code (LAC) at Part III, Section 504, which was previously approved by the EPA on May 31, 2001 (66 FR 29491). NSR is a permitting program that regulates the construction of new major stationary sources of air pollution and major modifications to existing major sources. These sources are required by the CAA to obtain an air pollution permit before beginning construction.

The revisions include increases to the minimum offset ratios for new major stationary sources and major modifications at major stationary sources in nonattainment areas. The minimum offset ratios were increased for classifications of serious and severe ozone nonattainment. The revisions will also allow an increase in VOC emissions to be offset by a decrease in emissions of NO X . Further, if NO X emissions decreases are used for VOC emissions increases, the permit for which the offsets are required must have been issued on or before November 15, 2005.

Major stationary sources that plan to build or modify in a nonattainment area must obtain these emissions offsets as a condition of permit approval. Emissions offsets are reductions in actual emissions from existing sources in the vicinity of the proposed new source.

Section 553(d) of the Administrative Procedure Act generally provides that rules may not take effect earlier than 30 days after they are published in the Federal Register . If, however, an Agency identifies a good cause, section 553(d)(3) allows a rule to take effect earlier, provided that the Agency publishes its reasoning in the final rule. EPA is making this action effective immediately because this rule is related to the Baton Rouge 1-hour ozone Attainment Plan and Transport State Implementation Plan, on which the EPA intends to take imminent action (see 67 FR 50391, August 2, 2002). In conjunction with its August 2, 2002, proposed approval of the attainment demonstration, EPA proposed to extend the ozone attainment date for the Baton Rouge area to November 15, 2005, while retaining the area's current classification as a serious ozone nonattainment area and to withdraw EPA's June 24, 2002, rulemaking determining nonattainment and reclassification of the BR area (67 FR 42687). The effective date of EPA's June 24, 2002, nonattainment determination and reclassification is imminent. Furthermore, making this action effective immediately does not impose any additional requirements, because the underlying regulations are already effective under state law.

The Baton Rouge area has been classified as a serious ozone nonattainment area (40 CFR 81.319). We received the Louisiana rule that we are approving in this final action on December 31, 2001, as a component of the Attainment Plan and Transport Demonstration (hereinafter, the Attainment Plan/Transport SIP) for the Baton Rouge area submitted by the Louisiana Department of Environmental Quality (LDEQ). This revision to the Attainment Plan/Transport SIP specifies emission reduction strategies designed to bring the Baton Rouge area into compliance with the ozone National Ambient Air Quality Standard (NAAQS). One component of the Attainment Plan/Transport SIP is the revised nonattainment NSR rule that has been enacted at LAC 33:III.504. This action is necessary to take final action on the revised rule as an approvable component of the Attainment Plan/Transport SIP.

In this action, we are approving revisions to the Louisiana SIP that have been enacted at LAC 33:III.504, which contains the rules for NSR procedures that apply to nonattainment areas designated pursuant to Section 107 of the CAA. The LAC revisions include increases to the minimum offset ratios for new major stationary sources and major modifications to major stationary sources in the Baton Rouge area. The revisions also add minimum offset ratios for NO X . For a nonattainment area with a classification of serious for ozone, the new minimum offset ratio for VOCs and for NO X is 1.20 to 1 if Lowest Achievable Emission Rate (LAER) technology is implemented, or 1.40 to 1 using internal offsets if LAER is not used. For a nonattainment area classified severe for ozone, the new minimum offset ratio for VOCs and for NO X is 1.30 to 1 with LAER, or 1.50 to 1 using internal offsets without LAER. As defined by section 171 of the CAA, the term LAER refers to either the most stringent emission limit contained in the state plan of any state for the applicable category of sources, or the most stringent emission limitation achieved in practice within an industrial category.

The revisions also allow an increase in VOC emissions to be offset by a decrease in emissions of NO X . The EPA defines this type of “offset,” the trading of emission reductions of one pollutant's precursors for emission reductions of a different precursor for that pollutant, as inter-precursor trading (IPT). See “Improving Air Quality with Economic Incentive Programs,” EPA-452/R-01-011 (EPA Office of Air and Radiation, January 2001) (hereinafter, the EIP Guidance). Under the revised rule, all emission reductions claimed as offset credit for significant net NO X increases shall be from decreases of NO X . NO X credits will be allowed to offset VOC increases, but not vice versa. All emission reductions claimed as offset credit for significant net VOC increases shall be from decreases of either NO X or VOCs, or any combination of NO X and VOC decreases. If NO X decreases are used for VOC increases, the permit for which the offsets are required shall have been issued on or before November 15, 2005. The LDEQ has identified November 15, 2005, as a “sunset date” after which no permits will be issued or modified allowing NO X credits to offset VOC increases. Revisions to the required offset credit ratio are listed in Table 1.

The Attainment Plan/Transport SIP submitted by Louisiana includes an enforceable commitment to perform and submit a mid-course review by May 1, 2004. This mid-course review would include, among other things, a re-evaluation of the ratio of NO X to VOC emissions reductions needed for attainment.

This action applies to the construction of any new major stationary source or to any major modification at a major stationary source within the Baton Rouge area. Section 182 of the CAA defines “major source” with respect to each category of ozone nonattainment classification area, as shown in Table 2. Any source that emits or has the potential to emit 50 tons or more of VOC or NO X and is located in an area classified as serious is considered a major source. Any source that emits or has the potential to emit 25 tons or more of VOC or NO X and is in an area classified as severe is considered a major source.

The requirements of the revised rule do not apply to NO X increases for any applications deemed administratively complete before December 20, 2001. Additionally, under the revised rule the 1.40 to 1 VOC internal offset ratio (without LAER) for serious ozone nonattainment areas shall not apply to such applications. Instead, a 1.30 to 1 internal offset ratio shall apply to VOC if LAER is not utilized. (With LAER, the applicable ratio is 1.20 to 1, regardless of application date.) Further, sources exempt from nonattainment NSR requirements for NO X increases will still be subject to the construction schedule and other provisions of the EPA's Supplemental Transitional Guidance. See memorandum from John Seitz, “New Source Review (NSR) Program Supplemental Transitional Guidance on Applicability of New Part D NSR Permit Requirements” (September 3, 1992).

The State has recently promulgated and revised the NO X control regulation in Chapter 22. This NO X Reasonably Available Control Technology (RACT) rule requires stationary sources to comply with a more strict emission limitation during the State's five month ozone season. Typically a stationary source reduces emissions below the baseline to generate surplus emission reduction credits. Due to the revised NO X rule, the allowable emission limitation for a stationary source could potentially have two values, one for the five month ozone season and another for the seven month non-ozone season. For more information about the area's ozone seasons, see LAC III:33 Chapter 22, and the separate EPA rule-making to be issued regarding that chapter.

Thus, the baseline emissions for the stationary source, which are used to determine surplus emission reduction credits for offset permitting purposes, could have two different values. In order to accurately determine the surplus emission reduction credits (ERCs) to be used in the nonattainment NSR permitting, the baseline emissions and surplus ERCs must be determined for the two time periods. The NO X ERCs for any annual time period will consist of the ERCs for the five month ozone season and the ERCs from the seven month non-ozone season. Offset requirements for new sources derive from Section 173(a)(1)(A) of the Act, which concerns “total” emissions and does not address the use of emission offsets for nonattainment permitting over periods of less than one year. Therefore, the NO X ERCs to be used in all nonattainment NSR permitting under Chapter 5 must be determined by adding the ERCs from the ozone season and the non-ozone season.

With respect to all offsets under Chapter 5 and all ERCs under Chapter 6, the total NO X emission increases during the ozone season must be offset by NO X ERCs from the ozone season. Non-ozone season NO X increases may be met by either ozone or non-ozone NO X ERCs. The annual NO X increase must be offset by the total combination of ozone and non-ozone season surplus NO X emission reduction credits.

The stated purpose of the revised emissions banking rule in Chapter 6 is to enable stationary sources to identify and acquire emission reductions for NSR purposes. The Chapter 6 rule does not establish a “bank” requiring tracking by the State of sources' claimed ERCs. The Chapter 6 rule only establishes a bulletin board for use by source owners and operators. The LDEQ makes the determination whether a source's claimed ERCs are surplus through the Chapter 5 nonattainment NSR rules. The identification, certification, acquisition, recordkeeping and determination of “Surplus When Used” emission reduction credits must be for the ozone season and the non-ozone season time periods. The State indicated by letter from Mr. Dale Givens to EPA dated May 3, 2002, that the State would implement the rule by operating the Chapter 6 emissions reduction credits bulletin board in such a manner. EPA has received information from the State supplementing its May 3, 2002, letter and further supporting the State's intention to implement the Chapter 5 nonattainment NSR rule in a manner that provides for separate identification, certification, acquisition, recordkeeping and determination of “Surplus When Used” emission reduction credits for the ozone season and for the non-ozone season time periods.

The emission offset provisions contained in the Chapter 5 nonattainment NSR rules indicate that until November 15, 2005, offsets of VOC emissions may be met by surplus NO X emission reductions. If a VOC emission offset requirement is met by surplus NO X emission reductions, the reductions must be for an annual period (both the ozone season and non-ozone season). VOC emission increases during the ozone season must be offset by NO X emission reductions from the same ozone season. Non-ozone season VOC increases may be met by either ozone or non-ozone NO X ERCs (and/or by VOC ERGs). The annual VOC increase must be offset by the annual (total combination ozone and non-ozone season) surplus NO X ERCs (and VOC ERCs).

We received written comments on the proposed rulemaking from seven parties during the public notice period that closed on August 22, 2002. The comments of four of the parties, the Steering Committee of the Baton Rouge Ozone Task Force, Louisiana Mid-Continent Oil and Gas Association, Louisiana Chemical Association, and the Leadership Team of the Baton Rouge Clean Air Coalition, support our July 23, 2002 proposed approval of the nonattainment NSR regulation. The LDEQ strongly supports the proposed EPA approval and supplied three wording clarifications. Louisiana Generating LLC and the Tulane Environmental Law Clinic (TELC) on behalf of the Louisiana Environmental Action Network (LEAN) submitted comments opposing the approval of the nonattainment NSR rule.

Comment 1 : Four commenters supported approval of the nonattainment NSR rule.

Response 1 : The EPA agrees. We have determined that these changes to the minimum offset ratios for new major stationary sources and major modifications at major stationary sources in the Baton Rouge Area are approvable. The revisions that allow an increase in VOC emissions to be offset by a decrease in emissions of NO X are also approvable.

Comment 2 : The LDEQ noted that the offset ratio for moderate nonattainment areas in Section III, Table I: Minimum Offset Ratios for New and Modified Major Stationary Sources, should be 1.15 to 1, not 1.10 to 1.

Response 2 : We agree, and have corrected Table I in this final rule to reflect the correct offset ratio for moderate nonattainment areas. For additional clarity we have also added the footnotes contained in the LDEQ nonattainment NSR rule, Minimum Offset Ratios table to our Table 1 in this action.

Comment 3 : The LDEQ questions the inclusion of the reference to the memoranda from John Seitz, dated March 11, 1991, “New Source Review (NSR) Program Transitional Guidance,” and September 3, 1992, “New Source Review (NSR) Program Supplemental Transitional Guidance on Applicability of New Part D NSR Permit Requirements.” The commenter notes that since Louisiana has a program that complies with all Part D NSR provisions of the CAA amendments of 1990, as approved by the EPA on October 10, 1997 (62 FR 52951) and revisions to the section on January 5, 1999 (64 FR 415 and May 31, 2001 (66 FR 29491), the EPA “Transitional Guidance” documents would not be relevant.

Response 3 : The EPA agrees that Louisiana has a program that complies with all Part D NSR provisions of the CAA amendments of 1990. The relevance of the Seitz memoranda arises from the statement in the 1992 Transitional Guidance that “for purposes of determining the approvability of revised NSR SIP's,” sources with applications complete before the date in question will be covered by the NSR rules in effect as of the application, provided certain conditions are met. See Supplemental Transitional Guidance, p. 2. (The March 11, 1991, Seitz Transitional Guidance memorandum is relevant to this rule only as it informs the 1992 memorandum; accordingly, we have removed it from the discussion in Part IV, above.) We included this provision to apply to applications deemed administratively complete prior to the December 20, 2001, promulgation of the LDEQ's nonattainment NSR rule. Sources that submitted complete permit applications prior to the promulgation date of the new NSR permit requirements may receive final permits under the previous State NSR rules, provided that the following conditions are met: (1) The State and the source move expeditiously towards final permit issuance; (2) construction begins no later than 18 months from the date of permit issuance unless an earlier time is required under the applicable SIP; (3) construction is not discontinued for a period of 18 months or more; and (4) construction is completed within a reasonable time. States may not grant permit extensions beyond these time periods unless the permittee is required in a federally-enforceable manner to meet the new Part D NSR provisions.

Comment 4 : The LDEQ requests that a statement in Section VIII (How does the State's NSR regulation in Chapter 5 interact with the NO X control regulation in Chapter 22 and the revised banking regulation in Chapter 6?) be changed from “The State has recently revised the NO X control regulation in Chapter 22.” to read: “The State has recently promulgated and revised the NO X control regulation in Chapter 22.”

Response 4 : The EPA agrees and so notes this comment.

Comment 5 : The TELC requested an extension to the public comment period of 30 days.

Response 5 : The EPA is under no obligation to extend the comment period or to accept late comments. We decided to accept comments which were received by our office by close-of-business on August 26, 2002. This time frame corresponds to the estimated travel time for first class mail for a letter mailed and postmarked on the last day of the comment period, August 22, 2002.

Comment 6 : The TELC has concerns with the emission reductions generated by facilities which are required to comply with NO X emission Reasonably Available Control Technology (RACT) requirements in Louisiana's revised NO X rule, which EPA proposed to approve on July 23, 2002 (67 FR 48095). The commenter is concerned that facilities which elect to implement RACT before the compliance date required by the rule, May 1, 2005, could be considered to be doing so voluntarily. And as voluntary reductions, i.e. , not required by federal or state law, these NO X reductions could be deemed surplus, and therefore, eligible for use as emission offsets, including offsets of VOCs.

Response 6 : The EPA disagrees with the commenter's interpretation that facilities which elect to implement RACT before the compliance date required by the rule, May 1, 2005, would generate reductions eligible for use as emission offsets.

Louisiana promulgated its revised NO X rules on February 20, 2002 (Louisiana Register, Vol. 28, No. 2). On February 27, 2002, the State submitted to EPA the revised NO X rules for the Baton Rouge area and its Region of Influence. The revised NO X rule requires certain affected categories of NO X -generating facilities to achieve RACT “as expeditiously as possible, but no later than May 1, 2005.” This date takes into consideration the time affected categories of NO X -generating facilities may need to procure, calibrate and implement RACT. On July 23, 2002, the EPA proposed approval of the SIP revisions to regulate emissions of NO X to meet requirements of the CAA (67 FR 48095). Section 173(c)(2) of the Act states that reductions otherwise required by the Act are not creditable as offsets. Although the rule permits affected categories of NO X -generating facilities to achieve compliance with NO X RACT no later than May 1, 2005, the rule became effective when promulgated. Therefore, facilities achieving NO X RACT compliance before May 1, 2005, are creating emission reductions as required by law. Therefore, such facilities will not obtain ERCs and cannot offset VOC emissions by early RACT implementation. Furthermore, emissions decreased by a voluntary action must be permanent in order to meet the surplus ERC criteria. Because the rule provides for compliance no later than May 1, 2005, reductions made before that date could not be considered permanent, and therefore could not be surplus.

For the above reasons, the comment does not indicate that any change to the rule is required.

Comment 7 : The TELC is concerned that facilities will now be able to install LAER technology to control NO X emissions, “count the NO X reductions as surplus, and use them to offset new increases in VOCs so that those new modifications can . . . escape New Source Review.” The commenter is further concerned that this procedure will allow industry to emit greater quantities of VOCs into the air than currently allowed, with harmful effects on the Baton Rouge area.

Response 7: The EPA agrees that sources that were not required to meet nonattainment NSR for new NO X sources during the NO X waiver would now be able to install LAER technology and count the reductions (from the level set by the new NO X RACT rule) as surplus and available for use as emissions offsets for a current new source. Such current new major stationary sources and major modifications at major stationary sources in the Baton Rouge area would be required to obtain emissions offsets at the ratios specified in Table 1 of this rulemaking. Under the CAA and the revised Louisiana rule, however, emissions offsets do not serve to allow a facility to avoid new source review. Instead, a facility that will exceed the emission thresholds in the relevant attainment category (see Table 1) must obtain offsets as a condition of receiving a new source review permit. The generation and use of such emissions credits must be consistent with the definition of “Surplus Emission Reductions” in LAC 33:III.605. The LDEQ's nonattainment NSR procedures also require that emission reductions claimed as offset credit shall be sufficient to ensure “Reasonable Further Progress” toward attainment, that emission offsets provide a net air quality benefit, and that the offsets must be federally enforceable, before commencement of construction of the proposed new source or major modification. Offsets thus are a vital part of the mechanism that ensures that new projects and modifications will not harm the attainment status of the area in question.

The effect of each of the above scenarios would be a reduction in overall emissions for the Baton Rouge area, because the new sources would have to seek minimum offsets in excess of what the new source is expected to release as emissions.

Finally, the commenter may have intended, with the reference to offsets used to avoid NSR, to refer to the “netting” analysis conducted under Part 504(A)(4) of the proposed rule. In this analysis, the net emissions increase from the construction of a new major stationary source or any major modification at a stationary source is compared to the values in Table 1 to determine whether a new source review must be performed. The inter-precursor trading provision of the revised rule, however, applies only to the use of emission offsets, not to the netting analysis. See LAC 33:III.504.G. (definition of major modification, providing that “VOC and NO X emissions shall not be aggregated for the purpose of determining significant net emissions increase.”). LDEQ has confirmed to the EPA that this interpretation of the rule is correct. Accordingly, the potential harm the commenter cites— i.e. , the use of NO X emission reductions to avoid new source review for new VOC emissions—cannot occur as a result of the revised rule.

For the above reasons, the comment does not indicate that any change to the rule is required.

Comment 8: The TELC charges that LDEQ has taken inconsistent positions regarding modeling and the effects of NO X reduction on attainment of the ozone NAAQS. The commenter points out that on January 26, 1996 (61 FR 2438), the EPA granted an exemption from the RACT and NSR requirements for major stationary sources of NO X , pursuant to section 182(f) of the CAA. This exemption was based on modeling submitted by LDEQ in a 1994 petition that demonstrated that additional NO X emission controls within the Baton Rouge area will not contribute to attainment of the ozone NAAQS for the area. On May 7, 2002 (67 FR 30638), the EPA rescinded that exemption based on more recent modeling conducted for the Baton Rouge area, submitted by LDEQ September 24, 2001, that indicates that control of NO X sources will help the area attain the ozone NAAQS. According to the commenter, this change in approach to NO X regulation has the effect of creating “loopholes in the law.”

Response 8: The “loopholes” that the commenter complains of are addressed elsewhere in this document (see comments and responses 6 and 7). This response addresses only the commenter's apparent assertion that Louisiana's scientific approach to NO X regulation is unfounded. The EPA disagrees with this argument. In granting the NO X exemptions January 26, 1996 (61 FR 2438), the EPA reserved the right to reverse the approval of the exemptions if subsequent modeling data demonstrated an ozone attainment benefit from NO X emission controls. Photochemical grid modeling recently conducted for the Baton Rouge area SIP indicates control of NO X sources will help the area attain the ozone NAAQS. The State of Louisiana therefore requested that the EPA rescind the NO X exemption based on this new modeling on September 24, 2001. In our proposed approval of the rescission of the NO X waiver May 7, 2002 (67 FR 30638), we stated that we believed that the State had adequately demonstrated that additional NO X reductions would contribute to attainment of ozone NAAQS. The State of Louisiana is not the only state that has requested that the EPA rescind its NO X waiver based on updated photochemical grid modeling information. Seven years elapsed between the LDEQ's previous modeling demonstration that additional NO X reductions would not contribute to area attainment, and the most recent modeling events demonstrating the Baton Rouge area to be NO X limited. Pollution control technology, including air modeling, is a dynamic and evolving field. The model used by LDEQ to support its request for approval of the NO X waiver was Urban Airshed Model (UAM) IV, which is an EPA-approved photochemical grid model. The model used by LDEQ to support its request for rescission of the NO X waiver was UAM V. This represents a significant refinement in modeling technology. Additionally, emission inventory tools have been improved during this seven year period from when the State initially requested the NO X waiver.

Comment 9: The TELC states that “inter-pollutant trading,” eliminated from the revised emission reduction credits banking rule, and “inter-precursor trading,” allowed by the revised nonattainment NSR rule, refer to the same concept.

Response 9: In this rulemaking, the EPA does not intend that “inter-pollutant trading” and “inter-precursor trading” refer to the same concept. “Inter-pollutant trading” refers to the trading of NAAQS criteria pollutants, i.e. , carbon monoxide, sulphur dioxides, particulate matter (less than 10 microns in diameter), and ozone. “Inter-precursor trading” refers to the trading of precursor components of a NAAQS pollutant—in this case ozone, with precursors being VOCs and NO X .

Comment 10: The TELC states that the provisions in the revised nonattainment NSR rule allowing IPT are illegal. The commenter disagrees with the EPA's position on IPT in our proposed nonattainment NSR notice. The commenter cites several provisions as follows to support their assertion.

(1) The commenter states that section 173(c)(1) of the CAA requires that new or modified stationary sources offset emission increases of a given pollutant with reduction of the same pollutant. In addition, the commenter states that “the substitution mentioned in [CAA Section] 182(c)(2)(C) does not refer to substituting emission reductions of one precursor for another, but to substituting one control plan for another. Even then states can only substitute in accordance with EPA guidance required by that section.”

(2) The commenter references the NO X Substitution Guidance (EPA, December 1993), stating that it makes no mention of allowing inter-precursor trading.

(3) The commenter notes that the EIP Guidance, used a basis for the EPA's proposed approval of the nonattainment NSR rule, is not the guidance Congress required in section 183 of the CAA.

(4) The commenter quotes from the February 2, 2000 (65 FR 4887), final rulemaking on the California SIP revision for the El Dorado County Air Pollution Control District, stating, “As recently as February 2, 2000, EPA recognized that “the CAA doesn't explicitly authorize inter-precursor,” and that “a strict interpretation of the Act would prohibit air districts from allowing this practice at all in NSR rules.”

Response 10: We disagree. The inter-precursor trading provision in the nonattainment NSR rule, which allows an increase in VOC emissions to be offset by a decrease in emissions of NO X , is approvable.

CAA Section 173(c)(1)—The EPA agrees that section 173(c)(1) is silent on the concept of inter-precursor trading (IPT). Nonetheless, while we do not have specific requirements for IPT that apply to all circumstances, we have recognized that IPT can be allowed under limited circumstances. Our position on IPT can be found at Appendix 16.9 in the EIP guidance. An economic incentive program (EIP) is a regulatory program that achieves an air quality objective by providing market-based incentives or information to emission sources. For example, a uniform emission reduction requirement, based for instance on installation of a required emission control technology, does not take account of variations in processes, operations, and control costs across sources even of the same type, such as electric utilities, or petroleum refiners. An EIP empowers sources to find the means that are most suitable and most cost-effective for their particular circumstances, by providing flexibility in how sources meet an emission reduction target.

CAA Section 182(c)(2)(B)—The relevance of Section 182(c)(2)(C) of the CAA is its recognition that both VOCs and NO X emissions combine in the atmosphere to create ozone, and that a reduction in the levels of NO X as well as VOCs can lower ozone levels more effectively than a reduction in the levels of VOCs alone under Section 182(c)(2)(B). Although Section 182(c)(2)(C) is silent on the concept of IPT, it does allow a combination of NO X emission reductions for VOC emission reductions, stating that the resulting reduction “in ozone concentrations” must be “at least equivalent” to that which would result from 3% VOC reductions required as a demonstration of Reasonable Further Progress (RFP) under Section 182(c)(2)(B). This 3% requirement can be lessened if the SIP includes the measures that are achieved in practice by sources in the same source category in nonattainment areas of the next higher ozone classification area. The LDEQ rule does satisfy this provision, as it requires new stationary sources to obtain emission offsets at the next higher ozone classification ratio.

NO X Substitution Guidance—While we agree that the NO X Substitution Guidance (EPA, December 1993) is also silent on the issue of IPT, it does provide that the RFP reductions should be consistent with those needed for attainment. Further, it provides that the Attainment and RFP Plans should show that reductions of NO X consistent with those needed for attainment can be accepted as equivalent to what would be required for a VOC-only attainment. The LDEQ's current nonattainment NSR procedures also require that emission reduction claimed as offset credit shall be sufficient to ensure RFP toward attainment.

EIP Guidance—Because this revision to the nonattainment NSR rule is not itself a market-based program for achieving air quality improvements (and is therefore not an EIP as defined by the EPA), we did not evaluate LAC 33:III.504 as a whole with respect to Appendix 16.9 of the EIP Guidance. However, because the IPT guidance provided in the EIP document applies generally to NSR offsets, we did consider the LDEQ rule in light of the IPT provisions in the EIP Guidance, and determined that the rule is consistent with those provisions. In particular, Appendix 16.9 of the EIP Guidance requires that a suitable EIP inter-precursor trade must either reduce emissions or not increase emissions, and outlines six criteria for showing that IPT is appropriate. (Alternatively, instead of using these six criteria, it is permissible to conduct air quality modeling for individual ozone inter-precursor trades to demonstrate that anticipated trades will either reduce emissions or not increase emissions.)

The IPT conditions in the LDEQ rule are consistent with the criteria in the EIP Guidance: (1) The LDEQ has conducted an approvable attainment demonstration meeting the requirements of Section 110 of the CAA; (2) the technical justification for use of IPT is consistent with the approvable attainment demonstration; (3) the geographic area is restricted to the Baton Rouge area; (4) IPT is compliant with hazardous air pollutant requirements as discussed in Response 11; (5) sources are required to offset an increase in VOC emissions with a greater amount of NO X emissions; and (6) trades will not be approved where there will not be progress toward ozone attainment. The attainment demonstration modeling also supports the use of the ratio required by the LDEQ's rule and demonstrates that any emission offset allowed by the rule will have no adverse effect. Further, the Attainment Plan/Transport SIP includes an enforceable commitment to perform and submit a mid-course review by May 1, 2004. This mid-course review would include, among other things, a re-evaluation of the ratio of NO X to VOC emissions reductions needed for attainment.

The EPA does agree that the EIP guidance is not the guidance Congress required in section 183 of the CAA. It is the guidance for implementation of sections 182(g)(4)(A), 187(d), and 187(g) of the CAA. The guidance required in section 183 of the Act is the NO X Substitution Guidance (EPA, December 1993), which is discussed above.

Final Rulemaking on the California SIP Revision for the El Dorado County Air Pollution Control District—IPT has received limited proposed approval from the EPA in the State of New Hampshire (66 FR 9278). It has also received limited approval in several air quality districts in California (Bay Area, 65 FR 56284; El Dorado, 65 FR 4887; Sacramento Metropolitan area; San Diego County, 64 FR 42892; San Joaquin Valley, 65 FR 58252), and is being considered for two more (the South Coast area, and the Mojave Desert area). The commenter quotes from the Federal Register notice for the final rulemaking on the California SIP revision for the El Dorado County Air Pollution Control District (February 2, 2000 (65 FR 4887)) in support of the argument that the CAA does not explicitly allow IPT. The EPA agrees that the cited Federal Register notice contains the language quoted by the commenter. It is helpful, however, to include the context of the statement: “Section 173(c)(1) of the CAA requires that new or modified stationary sources offset emission increases of a given pollutant with reductions of the same pollutant. Since the CAA doesn't explicitly authorize interprecursor trading, a strict interpretation of the Act would prohibit air districts from allowing this practice at all in NSR rules. Recent EPA policy has allowed interprecursor trading, particularly among ozone precursors in ozone nonattainment areas, if certain criteria are met. Consistent with this policy, the District has two possible ways to address this limited disapproval issue when it revises Rule 523. One way is to include rule language requiring written EPA concurrence for each proposed interprecursor trade. Alternatively, the District could produce a technical justification for various interprecursor offset ratios, and then revise Rule 523 to include those ratios. In this scenario, rule language requiring case-by-case EPA concurrence would not be necessary. Since the CAA does not explicitly authorize interprecursor trading, EPA's policy is to require Agency concurrence for such trades, either on a case-by-case or one time only basis if appropriate ratios are established by rule. With respect to the amount of time required for EPA to concur on a specific trade in the case-by-case scenario, EPA would have to make its determination during the comment period provided for the draft permit. This would not delay the permit issuance process.”

The February 2, 2000, response thus notes two possible ways to address the approval of IPT: (1) Requiring written EPA concurrence for each proposed IPT case; and (2) produce a technical justification for various IPT ratios and revise the rule to include those ratios. Here, the state has included ratios in their revised nonattainment NSR rule and has submitted the technical justification for use of those ratios to us.

For the above reasons, EPA finds that the use of IPT in the revised Louisiana rule is approvable.

Comment 11: The TELC is concerned that approval of the use of IPT will overburden African American communities along the Baton Rouge corridor. The increase in VOC emissions from reductions in NO X would have severe and disparate impact on minority communities living close to fenceline of industries involved in such trades. The commenter states that many VOCs are also considered hazardous air pollutants (HAP). The commenter cites as basis that Appendix 16.9 of the EIP Guidance requires trades that involve VOCs to comply with the HAP framework in section 16.2 of the EIP Guidance. The commenter is also concerned that public must have sufficient access to information to ensure a meaningful opportunity for public review and participation.

Response 11 : EPA believes the revised NSR rule will improve air quality for all of the Baton Rouge area. We do not agree that the use of IPT will overburden African American communities along the Baton Rouge corridor. The Attainment Plan/Transport SIP revisions change only specific portions of the LDEQ regulations. The current regulations found at LAC 33:III.504 continue to require that emission offsets provide a net air quality benefit, and that the offsets must be federally enforceable before commencement of construction of the proposed new source or major modification. The emission offsets must meet all applicable state requirements, any applicable new source performance standard in 40 CFR part 60, and any national emission standard for HAPs in 40 CFR part 61 or part 63.

Additionally, Chapter 51 of the LAC outlines ambient toxic air standards. Toxic air pollutants (TAPs) are a group of state-regulated chemicals consisting mainly of volatile organic compounds. The majority of TAPs are also HAPs. Major sources of TAPs are regulated under LAC 33:III. Chapter 51, Louisiana's comprehensive toxic air pollutant emission control program. TAPs are categorized into three groups (Class I, II, or III) based on their relative toxicities. If emissions of a Class I or II TAP increase by an amount greater than its minimum emission rate, a de minimis level established for each TAP in LAC 33:III.5112, sources of such compounds require maximum achievable control technology (MACT). Additionally, the impact of all TAP emissions must be below their respective health-based ambient air standards, which are also set forth in Section 5112. In this way, any increase in HAP emissions will be minimized and therefore, any impact on minority communities living close to fenceline of industries involved in trades of VOC increase for NO X reductions would also be minimized.

The effect of IPT in minority communities is most appropriately taken into account during the proceedings on a particular proposed NNSR permit. Under Section 173(a)(5) of the Act, an “alternative sites” analysis must be conducted for each NNSR permit, which requires consideration of, inter alia, the “social costs” of the construction or modification, e.g. , the disparate impact on minority communities. The Louisiana regulation implementing this requirement, LAC 33:III.504.D.7, contains the same requirement:

The EPA takes public participation in environmental protection issues very seriously. Regarding public participation, because any trade would be linked to a nonattainment new source review permit, public notice and the opportunity to request a public hearing on the proposed project would be mandatory. Further, the information in the LDEQ banking database, defined at LAC 33:III.605, will be available to the public upon request. We agree that access to information is a necessary prerequisite to meaningful public participation. We have discussed the records access issue with LDEQ. Under past practices, some citizens have had a problem finding all of the information regarding air permits. LDEQ has instituted new procedures intended to improve public access to records. We will continue to oversee the Louisiana Title V Operating Permit Program to ensure the revised public participation procedures are being effectively implemented according to the intent of the regulatory requirements, and will recommend further changes to the LDEQ if needed.

Comment 12: The TELC lists three points from the EPA's July 9, 2001, comments to LDEQ on the State's proposed nonattainment NSR revisions (Louisiana Register May 20, 2001). The commenter states that the rule does not adequately address these EPA comments to the state: (1) EPA noted that LDEQ had not provided the required technical basis, based on modeling of current emission sources, to support its NO X /VOC trading plan. The modeling must demonstrate that the program will actually reduce ambient ozone. Modeling must establish a trading ratio. Nothing in the public record suggests that LDEQ has done any of the required modeling. (2) EPA required that there be an “approvable and replicable procedure” by which these trading ratios will be calculated in the future. LDEQ has not provided any such procedure. (3) EPA required that “the program should make sure that any trading that occurs is consistent with the attainment demonstration.” LDEQ has provided no procedures by which the consistency of trading with the attainment demonstration will be monitored, nor has it even committed to doing such monitoring. The commenter is concerned that the EPA proposed to approve the same regulation even though the rule was not revised to reflect any of its concerns.

Response 12: The EPA disagrees with these assertions. Extensive urban airshed modeling has been conducted in support of Louisiana's revised SIP. The UAM provides the technical basis to support NO X emission credits used to offset VOC increases. The LDEQ conducted approximately 100 UAM V simulations to determine the emission control strategy direction, emission control strategy level, and emission control region required to demonstrate attainment. The UAM clearly demonstrated that NO X reductions are more effective than VOC reductions at reducing ambient ozone concentrations in the Baton Rouge area. UAM sensitivity simulations indicate that a 30% “across the board” reduction in VOC emission yielded less that a 1 part per billion decrease in the ozone peak for the three ozone episodes modeled. Accordingly, a reduction in one ton of NO X emissions was more beneficial than an equivalent reduction in VOC emissions. It was also for these reasons that VOC emission credits should not be allowed to offset NO X increases. Even though an ozone attainment benefit was shown with a one ton increase in VOC emissions for a one ton offset of NO X emissions, the LDEQ rule requires that the ratios specified in Table 1 (Section 504 of Chapter 5 of the State rule) be employed if NO X emission credits are used to offset VOC increases.

We disagree that our comment in our July 9, 2001, letter to the LDEQ required that the State provide an approvable and replicable procedure by which these trading ratios will be calculated “in the future.” That is, the purpose of that comment was not to request procedures to calculate future trading ratios. Instead, our point was that Louisiana's proposed nonattainment NSR revisions did not make clear that the ratios in Table 1 would apply to IPT trades. The State's final rule published on December 20, 2001, did clarify that point. The urban airshed modeling conducted by the State does provide a basis for the use of the trading ratios in Table 1 for use in IPT trades and the modeling is approvable and replicable. However, the EPA does acknowledge that environmental conditions change over time and, therefore, periodic reevaluations are necessary to maintain compliance with the ozone NAAQS. The LDEQ also recognizes that over extended periods of time, the relative effectiveness of NO X and VOC decreases at reducing ozone levels may change. It was for that reason that the state established November 15, 2005, as a “sunset date” after which no permits will be issued or modified allowing NO X credits to offset VOC increases. Further, the Attainment Plan/Transport SIP includes an enforceable commitment to perform and submit a mid-course review by May 1, 2004. This mid-course review would include, among other things, a re-evaluation of the ratio of NO X to VOC emissions reductions needed for attainment.

The EPA also believes that IPT is consistent with the attainment demonstration. As noted above LDEQ conducted approximately 100 UAM V simulations to determine the emission control strategy direction, emission control strategy level, and emission control region required to demonstrate attainment. The UAM did demonstrate that NO X reductions are currently more effective than VOC reductions at reducing ambient ozone concentrations in the Baton Rouge area. Additionally, an increase in VOC emissions offset by a decrease in emissions of NO X should be analyzed for the extent of impact from each pollutant involved. The LDEQ has agreed in implementing this provision to evaluate such trades on a case-by-case basis. See letter from Dale Givens, Secretary of LDEQ to Gregg Cooke, Regional Administrator, U.S. EPA, Region 6 (May 3, 2002). Additionally, in response to a comment sent by us on the proposed SIP revisions, LDEQ confirmed that further Urban Airshed Modeling would be required on a case-by-case basis if new data or evidence comes to light that indicates a NO X for VOC trade will not be beneficial to the environment.

Comment 13: Louisiana Generating LLC (LaGen) commented that LDEQ's proposed Attainment Plan/Transport SIP revisions contain a proposed Control Strategy Element, Section 4.2.1 Permitting NO X Sources, that could result in the imposition of the equivalent of the nonattainment rules in an attainment area without authority of law. LaGen stated that the revised nonattainment NSR regulation is not approvable to the extent that any of the provisions of the regulation could be implemented to support requiring offsets of new facilities or major modifications in attainment parishes.

Response 13: We disagree. As noted in its plain language, Section 4.2.1 is not intended as new policy or guidance. We disagree with the commenter's interpretation that Section 4.2.1 of Louisiana's SIP imposes nonattainment rules in an attainment area. Section 4.2.1 provides the State's acknowledgment of the requirements of sections 110(j) and 165(a)(3) of the Act, which prohibit the permitting of emissions from the construction or operation of sources that will cause, or contribute to, air pollution in excess of any national ambient air quality standard in any air quality control region, or any other applicable emission standard or standard of performance under the Act. EPA has proposed approval of Louisiana's 1-hour ozone attainment demonstration SIP in a separate rulemaking, 67 FR 50391, (August 2, 2002), and will address LaGen's comment regarding the approvability of the SIP when we taken final action on that rulemaking.

The stated applicability of the LDEQ nonattainment NSR revised rule in section 504(A)is for the construction of any new major stationary source or to any major modification at a major stationary source, provided such source or modification will be located within a nonattainment area, so designated pursuant to section 107 of the CAA, and will emit a regulated pollutant for which it is major and for which the area is designated nonattainment.

The EPA is approving changes to the minimum offset ratios for new major stationary sources and major modifications at major stationary sources in the Baton Rouge Area. These approved revisions also allow an increase in VOC emissions to be offset by a decrease in emissions of NO X . These changes revise LAC 33:III.504, previously approved by the EPA on May 31, 2001 (66 FR 29491).

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).

Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed action is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866.

On November 6, 2000, the President issued Executive Order 13175 (65 FR 67249) entitled, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 took effect on January 6, 2001, and revokes Executive Order 13084 (Tribal Consultation) as of that date. This rulemaking does not affect the communities of Indian tribal governments. Accordingly, the requirements of Executive Order 13175 do not apply.

Executive Order 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. The EPA believes that this rule should not raise environmental justice issues. The overall result of the program is regional reductions in ozone. Because this program will likely reduce local ozone levels in the air, and because there are additional provisions under the CAA to ensure that ozone levels are brought into compliance with national ambient air quality standards, it appears unlikely that this program would permit adverse affects on local populations.

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

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 before 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).

Pursuant to 5 U.S.C. 605(b), I certify that today's rule would not have a significant impact on a substantial number of small entities within the meaning of those terms for RFA purposes.

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

EPA believes, as discussed above, that because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty, it does not constitute a Federal mandate, as defined in section 101 of the UMRA.

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

This action merely approves a state rule implementing a Federal standard, and does not alter the relationship of the distribution of power and responsibilities established in the CAA. Thus, the requirements of section 6 of the Executive Order do not apply to this final action.

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) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

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 before 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 29, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

On December 6, 2000, the EPA finalized a rule for small MWC units. EPA promulgated this rule based on sections 111(d) and 129 of the Clean Air Act (Act) Amendments of 1990. The federal rule includes emission guidelines for existing units and standards of performance for new, modified or reconstructed sources. EPA published the rule for existing small MWC units in the Federal Register on December 6, 2000, (65 FR 76378), to be codified at 40 CFR part 60, subpart BBBB (Emission Guidelines for Small Municipal Waste Combustion Units.) EPA published rules for new, modified and reconstructed small MWC units in the Federal Register on December 6, 2000, (65 FR 76350), to be codified at 40 CFR part 60, subpart AAAA (New Source Performance Standards for New Small Municipal Waste Combustion Units). The regulatory text and other background information for these final rulemakings can be accessed electronically from the EPA Technology Transfer Network website. For small MWC the Web site address is: http://www.epa.gov/ttn/atw/129/mwc/rimwc2.html .

Sections 111(d) and 129 of the Act require States in which a designated existing facility is operating one or more small MWC units to submit to EPA a plan to implement and enforce the emission guidelines. If, however, there are no small MWC units and the State therefore chooses not to develop and submit such a plan, it must submit a negative declaration letter. (40 CFR 60.1510, 62.06.) Section 129 of the Act requires that the State plan be at least as protective as the emission guidelines and must provide for compliance by the affected facilities no later than 3 years after EPA approves the State plan, but no later than 5 years after EPA promulgates the emission guidelines. Sections 111(d) and 129 of the Act also require EPA to develop, implement and enforce a Federal Implementation Plan if a State fails to submit an approvable State plan. The small MWC plan must address regulatory applicability, increments of progress for retrofit, operator training and certification, operating practices, emission limits, continuous emission monitoring, stack testing, record keeping, and reporting, and requirements for air curtain combustors. States are required to follow the requirements of 40 CFR part 60, subpart B, and 40 CFR part 62, regarding the adoption and submittal of State plans for designated facilities.

In addition to the publication of the emission guidelines document, EPA notified each of the States of the requirements listed in the rule. On February 23, 2001, EPA, Region 5 asked Ohio to provide information so we could determine if the State was required to develop and submit the required plan. The State began a detailed review of its internal databases to ascertain the status of small MWC facilities. This effort resulted in a determination there were no small MWC units and culminated in the State's request for a negative declaration.

The EPA does not require States to develop plans or regulations to control emissions from sources for which there are none present in the State (40 CFR 62.06). If the State thinks that there may be some small MWC units in operation, it should examine available records on these sources before initiating the planning and regulation development process. If after a careful examination of available information, the State finds no sources for this source category, then it may prepare and submit to us a negative declaration stating there are no sources in the State which match this source category. This is done in lieu of submitting a control strategy.

On June 25, 2002, the State of Ohio submitted to EPA a negative declaration regarding the need for a regulation covering small MWC units. The Ohio EPA searched for potentially affected sources in its air source Permit to Operate (PTO) databases. A scan of those files disclosed that from over 10,000 sources, a total of 2,478 units were revealed bearing the “N” source code, denoting an incinerator. This number included units placed on registration status as well as those issued PTOs, and includes many units shut down years and even decades ago. The state reviewed the equipment description on each “N” record which showed that very few of the units have the potential to approach the 35 ton per day threshold for small MWCs. Using this review approach, Ohio found that seven units needed to be studied more closely. Ohio EPA then mailed questionnaires to the facilities and contacted local air offices to discuss the potentially affected units. Following this effort the State concluded there are no existing small MWCs in Ohio either operating or shut down but capable of restarting.

This conclusion is consistent with an inventory review conducted in May 1998 by EPA Regional Offices and State air pollution control agencies. Those agencies did not find any small MWC units in Ohio.

EPA has examined the State's negative declaration regarding the lack of need for a regulation controlling emissions from small MWC units. We agree that, at this time, there appear to be no unregulated small incinerators in Ohio which would require the adoption of rules to control this source category. If a new source chooses to construct in the State, it would be required to comply with new source performance standard requirements published for small MWC units on December 6, 2000 (65 FR 76350). If, at a later date, an existing small MWC unit is identified in the State, the Federal plan implementing the emission guidelines contained in Subpart BBBB will automatically apply to that MWC unit until the State develops a plan and EPA approves it. 40 CFR 60.1530.

EPA is publishing this action without prior proposal because we view this as a noncontroversial revision and we anticipate no adverse comments. However, in a separate document in this Federal Register publication, EPA is proposing to approve the State's negative declaration should adverse written comments be filed. This action will be effective without further notice unless EPA receives relevant adverse written comment by October 30, 2002. Should EPA receive such comments, we will publish a final rule informing the public that this action will not take effect. Any parties interested in commenting on this action should do so at this time. If no comments are received, the public is advised that this action will be effective on November 29, 2002.

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. 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 Ohio's declaration that there are no small MWC's located in Ohio which would be subject to an MWC regulation if one were adopted. Therefore, the State does not need to adopt a MWC regulation. Any new MWC's built in Ohio will be subject to New Source Performance Standards. Because this rule approves state negative declarations and does not impose any additional enforceable duty, 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 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), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state declaration that a rule implementing a federal standard, is unnecessary 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 (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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this 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). This rule will be effective November 29, 2002, unless EPA receives adverse written comments by October 30, 2002.

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 29, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

The site to be deleted from the NPL is: Standard Steel and Metals Salvage Yard Site, Anchorage, Alaska.

A Notice of Intent to Delete for this site was published in the Federal Register on August 14, 2002 (67 FR 52918). The closing date for comments on the Notice of Intent to Delete was September 15, 2002. A comment letter was received after the comment period closed. The commentor opposes EPA's remedy and proposes an alternative remedy using peroxidative treatment. EPA selected its remedy after holding a public comment period between March 18 and April 17, 1996. Pursuant to the National Contingency Plan, EPA selected a stabilization/solidification and containment remedy which is protective of human health and the environment. Because hazardous substances will remain at the site above levels that allow unlimited use and unrestricted exposure, the site will undergo five-year reviews.

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 from the NPL is: Gould Site, Portland, Oregon.

A Notice of Intent to Delete for this site was published in the Federal Register on August 23, 2002 (67 FR 54602). The closing date for comments on the Notice of Intent to Delete was September 23, 2002. EPA received one comment letter. The comment letter received by EPA asked about dioxin contaminants that were injected into the dry wells at the Chipman site adjacent to the Gould Site. The Oregon Department of Environmental Quality (DEQ) is currently conducting an Remedial Investigation/Feasibility Study (RI/FS) at the Rhone Poulenc (formerly Chipman Chemical) site. Contaminant sources, such as dry wells, sumps and drainage pathways were characterized during two large soil sampling events completed in December 2000 and December 2001. DEQ is currently working with Rhone Poulenc to evaluate the risks to human health and the environment from contaminants (including 2,3,7,8-tetrachloro-dibenzo-p-dioxin (dioxin)) released to soil and groundwater. This information will be used to evaluate, design, and implement cleanup activities at the site.

For more information on the status of the Rhone Poulenc investigation, consult the DEQ Web site (http://www.deq.state.or.us/wmc/psrasp/ActiveSites.htm) and query Rhone Poulenc or contact the DEQ project manager, Eric Blischke at (503) 229-5648.

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 from the NPL is the Pinette's Salvage Yard Superfund Site in Washburn, Aroostook County, Maine.

A Notice of Intent to Delete for this site was published in the Federal Register on Wednesday August 28, 2002 (67 FR 55187). The closing date for comments on the Notice of Intent to Delete is Friday, September 27, 2002. EPA does not expect to receive any comments, therefore, a Responsiveness Summary has not been prepared. If any substantive comments are received EPA will publish a document in the Federal Register addressing those comments and, if necessary, withdrawing the site deletion.

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.

In 1979 the BLM issued rules regarding applying for and processing a right-of-way authorized by the Mineral Leasing Act of 1920, as amended. Since 1979 we have amended the various sections within part 2880 on several occasions, the last being in 1989. On October 30, 1990, the President signed Public Law 101-475. This law amends section 28(w)(2) of the Mineral Leasing Act (30 U.S.C. 185 (w)(2)) by allowing the Secretary of the Interior to issue a right-of-way for a pipeline 24 inches or more in diameter as soon as the Secretary notifies the appropriate committees of the Congress. The previous law required the Secretary to allow 60 days to pass after notifying Congress before issuing the right-of-way. The current regulations reflect the 60-day requirement, thereby imposing a waiting period for issuing a right-of-way that is no longer required by statute.

On June 15, 1999 (64 FR 32106) we proposed a major revision to part 2880 of our regulations and intend to publish the final rule within the year. The pertinent part of proposed section 2884.23 included the following language (see 64 FR 32141):

Each year, title 46 of the Code of Federal Regulations (CFR) is recodified on October 1. This rule makes editorial changes throughout the title, corrects addresses, updates cross-references, and makes other technical and editorial corrections to be included in the recodification. Also, we have made changes to 46 CFR part 401 to make it gender neutral. This rule does not change any substantive requirements of existing regulations.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. This rule consists only of corrections, editorial changes, and conforming amendments to 46 CFR, chapters I and III. These changes will have no substantive effect on the public so publishing an NPRM and providing an opportunity for public comment is unnecessary. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that, for the same reasons, good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. As this rule involves internal agency practices and procedures, it will not impose any costs on the public.

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

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their regulatory actions not specifically required by law. In particular, the Act addresses actions that may result in the expenditure of $100 million or more in any one year by a State, local, or tribal government, in the aggregate, or by the private sector. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

We have considered the environmental impact of this rule and concluded that, under figure 2-1, paragraphs (34)(a) and (b) of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. The changes in this rule correct addresses, update cross-references, make conforming amendments, and make other technical corrections. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

On June 12, 2002, we published a notice of proposed rulemaking (NPRM) at 67 FR 40260 soliciting public comment on proposed changes to administering Title XI deposit funds. In the NPRM, we explained the Title XI program deposit funds and the need for the amendments. We received one public comment regarding our proposal. We will address the public comment under the section heading “Response to Public Comment.”

The Title XI Program is a loan guarantee program which was established under Title XI of the Merchant Marine Act, 1936, as amended (the “Act”). The Secretary of Transportation (Secretary) acting by and through the Maritime Administrator administers the Title XI Program.

Title XI provides for the full faith and credit of the United States for the payment of debt obligations for: (1) U.S. or foreign shipowners for the purpose of financing or refinancing either U.S. flag vessels or eligible export vessels constructed, reconstructed, or reconditioned in U.S. shipyards and (2) U.S. shipyards for the purpose of financing advanced shipbuilding technology and modern shipbuilding technology of a privately owned general shipyard facility located in the U.S.

The guaranteed obligations ( i.e. , notes and bonds) are sold in the private sector. The main purchasers of the obligations include banks, pension funds, life insurance companies, and the general public.

In those instances where the Secretary guarantees obligations under Title XI and where the proceeds of the sale of the obligations are to be used for the construction, reconstruction, or reconditioning of a vessel or for a shipyard improvement, all such proceeds constitute security for the Secretary's risks in extending the guarantees, and are to be under the control of the Secretary as governed by applicable agreements between the Secretary and the Title XI debtor. In addition, the documentation of a Title XI transaction requires the Title XI debtor, under certain circumstances, to make deposits into the Title XI Reserve Fund as additional security for the Secretary.

Prior to the enactment of Section 1109, section 1108 authorized the Secretary to hold only a percentage of obligation proceeds in an escrow account (the “Escrow Fund”) with the Treasury. The remaining percentage was deposited with a commercial bank in what has become to be known as the “Construction Fund.” In addition, the Secretary had no authority under the Act to accept or hold Title XI Reserve Fund deposits. Currently, such deposits, like the Construction Fund, are placed with and held by a commercial bank. The Depository Agreement among the Title XI debtor, the Secretary, and the commercial bank sets forth the terms and conditions under which the funds may be invested, withdrawn, or otherwise paid to the Secretary or the Title XI debtor. The Title XI debtor granted to the Secretary security interests in these accounts and their contents (the “Collateral”), and provided the Secretary an opinion of counsel on the perfection and first priority of these security interests.

The Uniform Commercial Code (the “UCC”) of the various states, for the most part, governs the perfection and priority of the Secretary's security interests in the Collateral. At its financial closings, MARAD's experience has been that, given the provisions of the UCC and especially the recent changes to the UCC, even the most knowledgeable of legal counsel have had difficulty drafting clean legal opinions about the perfection and enforceability of MARAD's security interest in the Collateral held by commercial depositories. As a result of these factors, opinions of counsel have, over time, become increasingly time consuming and costly. On the other hand, there has never been any question about the perfection and enforceability of MARAD's security interest in funds held in the Escrow Fund by the Treasury under MARAD's normal security agreements.

In an effort to ameliorate the situation and to streamline the Title XI closing process, the Secretary determined that an alternate means for holding and investing the proceeds of the obligations was necessary. Since the Escrow Fund was already in place, it seemed only logical to use it for not just a percentage of the proceeds, but for all the proceeds. Accordingly, the Secretary sought the enabling legislation, and section 1109 is the result. The Secretary believes this authority will reduce the cost of obtaining Title XI benefits by simplifying the opinions of counsel and eliminating the costs of engaging commercial banks to hold and invest the proceeds. In addition, it is anticipated that closing documentation will be reduced or simplified.

One comment was received concerning the NPRM. The commenter states that, in his opinion, Section 1109 of the Act “was intended to solve certain technical problems of the Construction Fund arrangements and legal opinions concerning those arrangements.” It is true that one of the purposes of Section 1109 is to permit the agency to abolish the Construction Fund. However, the enactment of Section 1109 was not merely intended to solve problems related to that fund. Section 1109 also permits the Secretary to hold in a Treasury account money in the Title XI Reserve Funds of obligors (which are established for the purpose of holding a portion of an obligor's net operating income in a secured account for the benefit of the Secretary) as well as any other liquid assets that are pledged to the Secretary as collateral for a guarantee. In addition, the same commenter makes three requests concerning the proposed regulations. First, the commenter requests that drafts of any agreements that the Secretary intends to use to administer the provisions of Section 1109 be made available to commenters for their comments before the final regulation is promulgated. Second, the commenter expresses a concern that nothing in the NPRM requires the Secretary to pay the obligor interest on cash balances of the deposit fund as required by Sections 1109(c) and 1109(d)(2) and that if the final rule does not address the issues the agency's agreements should be amended to do so. Finally, the commenter states that the Secretary's authority to retain and offset amounts in the Treasury account does not arise until the obligor has defaulted on the obligations. The commenter believes that the regulations should not extend retention and offset to pre-default circumstances contrary to Section 1109(d)(3).

It is well established that MARAD does not publish the forms of its Title XI documents for review under the Administrative Procedure Act. MARAD's forms are traditionally provided to shipowning companies and to attorneys who practice ship finance law. Copies of the documents are on the agency's Web site, http://www.marad.dot.gov . A copy of the Depository Agreement, modified to reflect the provisions of Section 1109, is already publicly available and has been used in recent transactions, although it is not yet on the agency's Web site. Commenters may provide the agency with their views on these agreements at any time. Moreover, these documents are negotiated on a case-by-case basis to the extent warranted by the particularities of each transaction and the questions that are raised concerning the agency's policies by the parties to a closing. Accordingly, there is no reason for MARAD to postpone the effective date of this rule.

With respect to the commenter's second specific concern, that the NPRM does not address the payment of interest on cash balances of the deposit fund, we direct the commenter to the provisions of 46 CFR 298.33(c), (d) and (e) of the agency's regulations, which provisions will apply to the deposit fund, upon adoption of the final rule, and which adequately address the commenter's concerns. These issues are also addressed by Sections 5.04, 5.05, and 5.06 of the General Provisions of the Security Agreement and Section 2 of the Depository Agreement. As to the commenter's third point, neither MARAD's regulations nor its agreements have extended retention and offset to pre-default circumstances. The pertinent regulations and documentation state that the right arises upon the occurrence of an obligor's default.

With one addition, the rule will be adopted in the form proposed. The NPRM deleted the reference to Construction Fund in 46 CFR 298.33(b)(2)(i), but inadvertently neglected to delete § 298.34, entitled Construction Fund. Hence, the final rule will abolish the provisions of § 298.34 and substitute the words “Removed and Reserved.”

We have reviewed this final rule under Executive Order 12866 and have determined that it is not a significant regulatory action under section 3(f). It is also not significant under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979). Due to the limited economic impact of this final rule, no further analysis is necessary. This final rule is intended only to change the location of the Secretary's collateral, previously deposited in commercial banks to an account held at the Treasury. The intended effect is to encourage the construction of ships in U.S. shipyards both for the domestic and the Eligible Export Vessel programs and the modernization and improvement of U.S. general shipyard facilities by improving Title XI program administration.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires MARAD to determine whether this final rule will have a significant economic impact on a substantial number of small entities. Although a substantial number of Title XI applicants may meet the United States Small Business Administration's criteria for small entity, this final rule will not have a significant economic impact because it merely authorizes a change in the location of the Secretary's collateral, previously deposited in commercial banks, which charge depository fees, to an account held at the Treasury. Section 1279b of 46 App. U.S.C. authorizes the deposit of these funds. By changing the location of the account to the Treasury, this final rule will eliminate depository fees. We do not believe that this final rule will have a significant economic impact on a substantial number of small entities.

We have analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”) and have determined that it does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. These regulations will have no substantial effects on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials. Therefore, consultation with State and local officials was not necessary.

We do not believe that this final rule will significantly or uniquely affect the communities of Indian tribal governments when analyzed under the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Therefore, the funding and consultation requirements of this Executive Order would not apply.

This rulemaking contains requirements that have been approved previously by the Office of Management and Budget (Approval No. 2133-0018).

This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objectives of the rule.

The Department of Transportation assigns a regulation identifier number (RIN) 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. You may use the RIN contained in the heading of this document to cross-reference this action with the Unified Agenda.

This is a summary of the Commission's Order on Reconsideration of Fourth Report and Order ( Order on Reconsideration ) in CC Docket No. 98-147, FCC 02-234, adopted August 14, 2002, and released September 4, 2002. The complete text of this Order on Reconsideration is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com. It is also available on the Commission's Web site at http://www.fcc.gov.

1. Background. In the Collocation Remand Order (66 FR 43516, August 20, 2001) the Commission reevaluated provisions of its collocation rules on remand from the United States Court of Appeals for the District of Columbia Circuit. The Commission addressed, among other matters, whether incumbent LECs are required to provision cross-connects between collocators. The Commission concluded that while an incumbent LEC is not required to allow collocators to install and maintain cross-connects between their collocated equipment themselves, an incumbent LEC must nevertheless provide these cross-connects between two collocators upon reasonable request.

2. Federal Enforcement of Cross-Connect Requirement. In the Collocation Remand Order, the Commission stated that it anticipated “that cross-connect disputes, like other interconnection related disputes, can be addressed in the first instance at the state level.” In the Order on Reconsideration, to avoid any uncertainty, the Commission clarifies that nothing in that statement disavows any federal jurisdiction it otherwise might have under the Act to resolve cross-connect disputes. The Commission states that specific questions would be addressed on a case-by-case basis in the event of a complaint.

3. Federal Tariffing of Cross-Connect Requirement. The Commission concludes that incumbent LECs must file tariffs for cross-connect offerings made pursuant to section 201 of the Communications Act at the federal level. The Commission states that this is a necessary result of Section 203(a)'s mandate that all services subject to the Commission's jurisdiction under section 201 be federally tariffed. In order to minimize any unnecessary regulatory burdens, however, the Commission clarifies that incumbents shall have the flexibility to include the rates, terms, and conditions under which they provide cross-connects in their expanded interconnection tariffs, stand-alone tariffs, or other appropriate federal tariffs.

4. Pricing of Cross-Connects. A carrier provides facilities or services on an individual case basis when it provides them to a specific customer under rates, terms, and conditions that must be negotiated upon request of the service. Based on the record before it, the Commission declines to adopt a blanket rule against the use of individual case basis pricing for cross-connects because it was unable to determine the extent to which generally available offerings at standardized rates will be possible.

5. The actions contained the have been analyzed with respect to the Paperwork Reduction Act of 1995 (PRA) and found to impose new or modified reporting and recordkeeping requirements or burdens on the public. Implementation of these new or modified reporting and recordkeeping requirements will be subject to approval by the Office of Management and Budget (OMB) as prescribed by the PRA, and will go into effect upon announcement in the Federal Register of OMB approval.

6. As required by the Regulatory Flexibility Act (RFA), a Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) was incorporated in the Order on Reconsideration and Second Further Notice of Proposed Rulemaking ( Order on Reconsideration and Second Further Notice ) in CC Docket 98-147. The Commission sought written public comment on the proposals in the Second Further Notice, including comment on the Supplemental IRFA. The Commission received comments from The Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO) specifically directed toward the Supplemental IRFA. These comments were previously addressed fully in the Final Regulatory Flexibility Analysis (FRFA) included as part of the Collocation Remand Order, and are addressed only briefly. The Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) conforms to the RFA.

7. This Order on Reconsideration continues the Commission's efforts to facilitate the development of competition in telecommunications services. In the Advanced Services First Report and Order, the Commission strengthened its collocation rules to reduce the costs and delays faced by carriers that seek to collocate equipment at the premises of incumbent local exchange carriers (incumbent LECs). In GTE v. FCC, the D.C. Circuit vacated several of those rules and remanded the case to the Commission. In the Collocation Remand Order, the Commission addressed the remanded issues. Among other actions, the Commission required incumbent local exchange carriers (incumbent LECs) to provide cross-connects between collocated carriers upon reasonable request. In the Order on Reconsideration, the Commission addressed a petition for clarification or partial reconsideration of that decision.

8. In the Supplemental IRFA, the Commission stated that any rule changes would impose minimum burdens on small entities, including both telecommunications carriers that request collocation and the incumbent LECs that, under section 251(c)(6) of the Communications Act, must provide collocation to requesting carriers. The Commission also solicited comments on alternatives to the proposed rules that would minimize the impact that any changes to its rules might have on small entities. In their comments, OPASTCO stated that the Supplemental IRFA did not provide “the flexibility necessary to accommodate the needs of small (incumbent LECs) and their customers.” OPASTCO also stated that the Supplemental IRFA does not specify the specific requirements that might be imposed on small incumbent LECs or the extent to which those requirements might burden small incumbent LECs. Finally, OPASTCO stated that the Supplemental IRFA failed “to describe the “significant alternatives” for small (incumbent LECs) that [were] presumptively under consideration” in this rulemaking. As noted, the Commission responded to OPASTCO's comments in the previous Collocation Remand Order.

8. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of entities that will be affected by the rules. The RFA defines “small entity” as having the same meaning as the term “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act, unless the Commission has developed one or more definitions that are appropriate to its activities. Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the Small Business Administration (SBA).

9. The most reliable source of information regarding the total numbers of certain common carrier and related providers nationwide, as well as the number of commercial wireless entities, appears to be data the Commission publishes annually in its Carrier Locator report, which encompasses data compiled from FCC Form 499-A Telecommunications Reporting Worksheets. According to data in the most recent report, there are 5679 service providers. These carriers include, inter alia, providers of telephone exchange service, wireline carriers and service providers, LECs, interexchange carriers, competitive access providers, and resellers.

10. The Commission included small incumbent LECs in this present RFA analysis. A “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g. , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. The Commission therefore included small incumbent LECs in this RFA analysis, although the Commission emphasized that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

11. Total Number of Telephone Companies Affected. The United States Bureau of the Census (Census Bureau) reports that, at the end of 1992, there were 3,497 firms engaged in providing telephone services, as defined therein, for at least one year. This number contains a variety of different categories of carriers, including local exchange carriers, interexchange carriers, competitive access providers, cellular carriers, mobile service carriers, operator service providers, pay telephone operators, covered specialized mobile radio providers, and resellers. It seems certain that some of these 3,497 telephone service firms may not qualify as small entities or small incumbent LECs because they are not “independently owned and operated.” For example, a personal communications service (PCS) provider that is affiliated with an interexchange carrier having more than 1,500 employees would not meet the definition of a small business. It is reasonable to conclude that fewer than 3,497 telephone service firms are small entity telephone service firms or small incumbent LECs that may be affected by the rules adopted herein.

12. Local Exchange Carriers . Neither the Commission nor the SBA has developed a definition for small providers of local exchange service (LECs). The closest applicable definition under the SBA rules is Wired Telecommunications Carriers. According to the most recent data, there are 2,050 incumbent and other LECs. The Commission does not have data specifying the number of these carriers that are either dominant in their field of operations, are not independently owned and operated, or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of LECs that would qualify as small business concerns under the SBA's definition. Consequently, The Commission estimates that fewer than 2,050 providers of local exchange service are small entities or small incumbent LECs that may be affected by the rules adopted herein.

13. Interexchange Carriers . Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to providers of interexchange services (IXCs). The closest applicable definition under the SBA rules is for Wired Telecommunications Carriers. According to the most recent data, there are 229 carriers engaged in the provision of interexchange services. Of these 229 carriers, 181 reported that they have 1,500 or fewer employees and 48 reported that alone, or in combination with affiliates, they have more than 1,500 employees. The Commission does not have data specifying the number of these carriers that are not independently owned and operated, and thus are unable at this time to estimate with greater precision the number of IXCs that would qualify as small business concerns under the SBA's definition. Consequently, the Commission estimates that there are less than 229 small entity IXCs that may be affected by the rules adopted herein.

14. Wireless Service Providers . The SBA has developed a definition for small businesses within the two separate categories of Cellular and Other Wireless Telecommunications or Paging. Under that SBA definition, such a business is small if it has 1,500 or fewer employees. According to the Commission's most recent Telephone Trends Report data, 1,495 companies reported that they were engaged in the provision of wireless service. Of these 1,495 companies, 989 reported that they have 1,500 or fewer employees and 506 reported that, alone or in combination with affiliates, they have more than 1,500 employees. The Commission does not have data specifying the number of these carriers that are not independently owned and operated, and thus are unable at this time to estimate with greater precision the number of wireless service providers that would qualify as small business concerns under the SBA's definition. Consequently, the Commission estimates that there are 989 or fewer small wireless service providers that may be affected by the rules.

15. The Order on Reconsideration imposes nominal changes in projected reporting, record keeping, and other compliance requirements. These changes affect small and large companies equally.

16. In the Order on Reconsideration , in order to comply with a statutory mandate, the Commission requires that an incumbent LEC must include the rates, terms, and conditions under which they provide cross-connects in their federal tariffs. In order to minimize any unnecessary regulatory burdens, however, the Commission makes clear that incumbents shall have the flexibility to include their cross-connect offerings in any appropriate federal tariffs.

17. In the Order on Reconsideration , consistent with its existing policy, the Commission allows incumbent LECs the flexibility to use individual case basis (ICB) pricing for cross-connects under specific limited circumstances. The Commission also retains its requirement that incumbent LECs must amend their tariffs to provide for firm rates when those circumstances change. These tariffing requirements give greater certainty to collocators, many of which are small entities, without imposing undue burdens on any incumbent LEC.

18. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

19. In this Order on Reconsideration , the Commission clarifies that nothing in its prior order disavows any federal jurisdiction we otherwise have under the Act to resolve cross-connect disputes. The Commission also requires incumbent LECs, including those classified as small entities, to include their cross-connect offerings in their federal tariffs. In order to minimize any unnecessary regulatory burdens, however, the Commission clarifies that incumbents shall have the flexibility to include the rates, terms, and conditions under which they provide cross-connects in any appropriate federal tariffs. In so doing, the Commission implicitly rejects, as unnecessarily burdensome, alternatives such as requiring incumbent LECs to file new, stand-alone tariffs for their cross-connect offerings. The Commission also permits incumbent LECs to use ICB pricing in these tariffs in appropriate circumstances. The Commission rejects as inconsistent its prior policy the alternative of precluding all use of ICB pricing for cross-connects. Rejection of this alternative ensures that incumbent LECs have an additional measure of flexibility in developing their federal cross-connect tariffs.

20. Pursuant to sections 1-4, 201-03, 251-54, 256, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-54, 201-03, 251-54, 256, and 303(r), that the Petition for Reconsideration or Clarification jointly filed by Association for Local Telecommunications Services, e.spire Communications, Inc., KMC Telecom, Inc., McLeodUSA Telecommunications Services, Inc., and NuVox, Inc. September 19, 2001, Is granted to the extent set forth in the document.

21. The Order on Reconsideration Shall become effective October 30, 2002. The collections of information contained in this Order on Reconsideration Are contingent upon approval of the Office of Management and Budget. The Commission will publish a document in the Federal Register announcing the effective date of this requirement.

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

This is a summary of the Commission's Fifth Report and Order in CC Docket No. 98-147, FCC 02-234, adopted August 14, 2002, and released September 4, 2002. The complete text of this Report and Order is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com. It is also available on the Commission's Web site at http://www.fcc.gov.

1. Background. In the Second Further Notice (65 FR 54527, September 8, 2000), the Commission sought comment on several collocation-related issues that the Commission has not yet addressed. These issues included whether the Commission should adopt a national policy limiting the period for which potential collocation space can be reserved for future use. Parties to this proceeding asked that the Commission clarify its policies regarding the conversion of virtual collocation arrangements to physical arrangements and regarding the use of POT bays with physical collocation arrangements.

2. Space Reservation Policies. In the Second Further Notice, the Commission stated that the primary responsibility for resolving space reservation disputes lay with the states and therefore declined to adopt specific space reservation period at that time. The Commission, however, requested comment as to whether it should adopt a national space reservation policy that would apply where a state does not set its own standard. Based on the record, the Commission is not convinced that national space reservation policy is needed at this time to ensure that requesting carriers obtain reasonable and nondiscriminatory access to potential collocation space. The Commission states that, because a variety of factors can impact the availability of central office space, the states continue to be in the best position to monitor this situation and adopt policies that best address the particular space reservation issues in that state. The Commission also states that to the extent the state commissions have not adopted specific periods for space reservations, space reservation disputes should be resolved on a case-by-case basis.

3. Conversion of Virtual Arrangements to Physical Arrangements. The Commission states that it would not require, as a general matter, that incumbent local exchange carriers (incumbent LECs) permit in-place conversions of virtual collocation arrangements to physical collocation arrangements. The Commission concludes that a blanket rule might result in some physical arrangements occupying space that would otherwise be unsuited for physical collocation. At the same time, the Commission recognizes that, under section 251(c)(6) of the Communications Act, an incumbent LEC must provide for physical collocation on terms and conditions that are just, reasonable, and nondiscriminatory. The Commission determines that any disputes regarding whether an incumbent LEC complies with this standard in evaluating requests to move a virtual arrangement to part of the incumbent LEC's premises where physical collocation is allowed should be addressed on a case-by-case basis.

4. POT Bays. In the Advanced Services First Report and Order (63 FR 4420, August 18, 1998), the Commission adopted §51.323(k)(2) of the Commission's rules, which provides that “[a]n incumbent LEC may not require competitors to use an intermediate interconnection arrangement in lieu of direct connection to the incumbent's network if technically feasible.” In the Fifth Report and Order, the Commission states that, by definition, a POT bay is not an “intermediate interconnection arrangement,” but rather simply a convenient demarcation point between the incumbent LEC's facilities and those of the collocator. The Commission therefore concludes that the prohibition against intermediate interconnection arrangements in § 51.323(k)(2) does not apply to POT bays. The Commission notes, however, that the Communications Act mandates that incumbent LECs allow competitive LECs to interconnect at “any technically feasible point.” The Commission therefore concludes that while incumbent LECs may offer interconnection through POT bays as one technically feasible method of interconnection with a collocated competitive LEC, they may not unilaterally require competitive LECs to interconnect through such an arrangement where other technically feasible points of interconnection are available. The Commission notes, however, that although an incumbent LEC cannot unilaterally dictate the point of interconnection, this does not mean that a competitive LEC can dictate how the interconnection is implemented. The Commission states that these matters are typically subject to negotiations between the parties.

5. As required by the Regulatory Flexibility Act (RFA), a Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) was incorporated in the Order on Reconsideration and Second Further Notice of Proposed Rulemaking ( Order on Reconsideration and Second Further Notice ) in CC Docket 98-147. The Commission sought written public comment on the proposals in the Second Further Notice, including comment on the Supplemental IRFA. The Commission received comments from The Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO) specifically directed toward the Supplemental IRFA. These comments were previously addressed fully in the Final Regulatory Flexibility Analysis (FRFA) included as part of the Collocation Remand Order (66 FR 43516, August 20, 2001), and are addressed only briefly in The Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) conforms to the RFA.

6. This Fifth Report and Order continues the Commission's efforts to facilitate the development of competition in telecommunications services. In the Advanced Services First Report and Order, the Commission strengthened its collocation rules to reduce the costs and delays faced by carriers that seek to collocate equipment at the premises of incumbent LECs. In GTE v. FCC, the D.C. Circuit vacated several of those rules and remanded the case to the Commission. In the Collocation Remand Order, the Commission addressed the remanded issues. Among other actions, the Commission required incumbent local exchange carriers (incumbent LECs) to provide cross-connects between collocated carriers upon reasonable request. In the Fifth Report and Order, the Commission addressed a collocation issues raised as part of the Second Further Notice. The Commission's actions will help incumbent LECs and collocated carriers better understand its collocation requirements and how they will be enforced.

7. In the Supplemental IRFA, the Commission stated that any rule changes would impose minimum burdens on small entities, including both telecommunications carriers that request collocation and the incumbent LECs that, under section 251(c)(6) of the Communications Act, must provide collocation to requesting carriers. The Commission also solicited comments on alternatives to the proposed rules that would minimize the impact that any changes to its rules might have on small entities. In their comments, OPASTCO stated that the Supplemental IRFA did not provide “the flexibility necessary to accommodate the needs of small (incumbent LECs) and their customers.” OPASTCO also stated that the Supplemental IRFA does not specify the specific requirements that might be imposed on small incumbent LECs or the extent to which those requirements might burden small incumbent LECs. Finally, OPASTCO stated that the Supplemental IRFA failed “to describe the “significant alternatives” for small (incumbent LECs) that (were) presumptively under consideration” in this rulemaking. As noted, the Commission responded to OPASTCO's comments in the previous Collocation Remand Order.

8. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of entities that will be affected by the rules. The RFA defines “small entity” as having the same meaning as the term “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act, unless the Commission has developed one or more definitions that are appropriate to its activities. Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the Small Business Administration (SBA).

9. The most reliable source of information regarding the total numbers of certain common carrier and related providers nationwide, as well as the number of commercial wireless entities, appears to be data the Commission publishes annually in its Carrier Locator report, which encompasses data compiled from FCC Form 499-A Telecommunications Reporting Worksheets. According to data in the most recent report, there are 5679 service providers. These carriers include, inter alia, providers of telephone exchange service, wireline carriers and service providers, LECs, interexchange carriers, competitive access providers, and resellers.

10. The Commission included small incumbent LECs in this present RFA analysis. A “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g. , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. The Commission therefore included small incumbent LECs in this RFA analysis, although the Commission emphasized that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

11. Total Number of Telephone Companies Affected. The United States Bureau of the Census (Census Bureau) reports that, at the end of 1992, there were 3,497 firms engaged in providing telephone services, as defined therein, for at least one year. This number contains a variety of different categories of carriers, including local exchange carriers, interexchange carriers, competitive access providers, cellular carriers, mobile service carriers, operator service providers, pay telephone operators, covered specialized mobile radio providers, and resellers. It seems certain that some of these 3,497 telephone service firms may not qualify as small entities or small incumbent LECs because they are not “independently owned and operated.” For example, a personal communications service (PCS) provider that is affiliated with an interexchange carrier having more than 1,500 employees would not meet the definition of a small business. It is reasonable to conclude that fewer than 3,497 telephone service firms are small entity telephone service firms or small incumbent LECs that may be affected by the rules adopted herein.

12. Local Exchange Carriers. Neither the Commission nor the SBA has developed a definition for small providers of local exchange service (LECs). The closest applicable definition under the SBA rules is Wired Telecommunications Carriers. According to the most recent data, there are 2,050 incumbent and other LECs. The Commission does not have data specifying the number of these carriers that are either dominant in their field of operations, are not independently owned and operated, or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of LECs that would qualify as small business concerns under the SBA's definition. Consequently, The Commission estimates that fewer than 2,050 providers of local exchange service are small entities or small incumbent LECs that may be affected by the rules adopted herein.

13. Interexchange Carriers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to providers of interexchange services (IXCs). The closest applicable definition under the SBA rules is for Wired Telecommunications Carriers. According to the most recent data, there are 229 carriers engaged in the provision of interexchange services. Of these 229 carriers, 181 reported that they have 1,500 or fewer employees and 48 reported that alone, or in combination with affiliates, they have more than 1,500 employees. The Commission does not have data specifying the number of these carriers that are not independently owned and operated, and thus are unable at this time to estimate with greater precision the number of IXCs that would qualify as small business concerns under the SBA's definition. Consequently, the Commission estimates that there are less than 229 small entity IXCs that may be affected by the rules adopted herein.

14. Wireless Service Providers. The SBA has developed a definition for small businesses within the two separate categories of Cellular and Other Wireless Telecommunications or Paging. Under that SBA definition, such a business is small if it has 1,500 or fewer employees. According to the Commission's most recent Telephone Trends Report data, 1,495 companies reported that they were engaged in the provision of wireless service. Of these 1,495 companies, 989 reported that they have 1,500 or fewer employees and 506 reported that, alone or in combination with affiliates, they have more than 1,500 employees. The Commission does not have data specifying the number of these carriers that are not independently owned and operated, and thus are unable at this time to estimate with greater precision the number of wireless service providers that would qualify as small business concerns under the SBA's definition. Consequently, the Commission estimates that there are 989 or fewer small wireless service providers that may be affected by the rules.

15. None.

16. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

17. In the Fifth Report and Order, the Commission addresses the need for a national space reservation policy, the conversion of virtual collocation arrangements to physical collocation arrangements, and whether incumbent LECs may require the use of point of termination (POT) bays. It rejects the alternative of adopting more stringent regulations as suggested by some commenters. The Commission concludes that disputes regarding an incumbent LEC's policies on space reservations and the conversion of virtual collocation arrangements should be addressed on a case-by-case basis. It also concludes that while the use of POT bay is permissible, incumbent LECs may not unilaterally compel their use.

18. The actions contained in the Fifth Report and Order have been analyzed with respect to the Paperwork Reduction Act of 1995 (PRA) and found to impose no new or modified reporting and recordkeeping requirements or burdens on the public.

19. Pursuant to sections 1-4, 201-03, 251-54, 256, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-54, 201-03, 251-54, 256, and 303(r), the Fifth Report and Order is adopted.

24. Pursuant to sections 1-4, 201-03, 251-54, 256, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201, 202, 251-54, 256, and 303(r), the actions taken in the Fifth Report and Order Shall become effective October 30, 2002.

25. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, Shall send a copy of this Fifth Report and Order, including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

On August 8, 2002, the Research and Special Programs Administration (RSPA, we) published a final rule under Docket No. 01-10373 (HM-220D) (67 FR 51625) amending the requirements of the Hazardous Materials Regulations applicable to the maintenance, requalification, repair, and use of DOT specification cylinders. The August 8, 2002 final rule, amended the HMR to:

(1) Prohibit a filled cylinder with a specified service life from being offered for transportation in commerce after its service life has expired.

(2) Remove authorization for the manufacture of DOT specification cylinders using aluminum alloy 6351-T6. Cylinders manufactured with this aluminum alloy have a greater risk of failure than other aluminum cylinders.

(3) Incorporate by reference new and updated Compressed Gas Association (CGA) standards and updated American Society for Testing and Materials (ASTM) standards.

(4) Require each person who performs a requalification function that requires marking of an inspection or retest date on a cylinder to have approval from the Associate Administrator for Hazardous Materials Safety (Associate Administrator).

(5) Standardize requirements for repair and rebuilding of DOT-4 series cylinders, other than the DOT 4L.

(6) Allow the application of requalification markings on cylinders by using alternative methods that produce durable, legible marks.

(7) Require pressure relief devices on all DOT-3 series specification cylinders to be set at test pressure with a tolerance of −10% to +0 beginning at the first requalification due on or after the effective date of this final rule.

In addition, we consolidated requirements for obtaining approval to be a cylinder requalifier, or an independent inspection agency, or to have chemical tests or analyses performed outside the United States on cylinders manufactured outside the United States in a new Subpart I in Part 107.

We received approximately 20 appeals of the implementation of HM-220D, either in total or in part. We received appeals from representatives of industrial gas trade associations, gas distributors, shippers, carriers, cylinder manufacturers and requalifiers.

Most appellants request that we extend the October 1, 2002 effective date for certain requirements adopted in the final rule. They state a 60-day implementation period is unreasonable for certain requirements. They request that we delay implementation of the particular requirements until we have had an opportunity to further review and address their specific concerns. We agree that the October 1 effective date of certain provisions should be extended. Therefore, in this final rule, we are providing a May 30, 2003 compliance date for the following requirements:

Appellants expressed concern about a requirement in the August 8, 2002 final rule that prohibits a welded cylinder from being used for Hazard Zone A materials (see §§ 173.226(a) and 173.228(b) of the August 8, 2002 final rule). Appellants ask us to provide time for transporting filled cylinders for reprocessing or disposal of the cylinder's contents. We agree. In this final rule, we are revising the prohibition to permit a welded cylinder that is filled with a Hazard Zone A material prior to October 1, 2002, to be transported for reprocessing or disposal until April 1, 2003.

In addition, in this final rule, we are clarifying a requirement applicable to cylinders used to transport oxygen. In § 173.302, the August 8, 2002 final rule included provisions applicable to aluminum cylinders used to transport oxygen. One of the requirements states that each valve or portion of a valve that comes into contact with the oxygen being transported must be constructed of brass or stainless steel. Several appellants point out that some aluminum oxygen cylinders have valve components made of non-metallic materials that may come in contact with the oxygen. It was not our intention to require persons transporting oxygen in aluminum cylinders to replace non-metallic valves or valve components with brass or stainless steel. Therefore, in this final rule we are clarifying that metallic portions of valves that may come into contact with the oxygen in the cylinder must be constructed of brass or stainless steel.

Appellants also point out that we inadvertently excepted all acetylene cylinders from the valve protection requirements in § 173.301(h) of the August 8, 2002 final rule. Appellants are correct that this was not our intent. As we stated in the preamble to the final rule (67 FR 51631), our intention was to except only acetylene MC cylinders and other types of small-capacity cylinders from the valve protection requirements. Therefore, in this final rule, we are revising the exception for acetylene cylinders to except small capacity MC and B style cylinders from valve protection requirements.

CGA and several other appellants also contend that HM-220D was issued as a final rule with no opportunity for public comment. They state that HM-220D should be withdrawn and converted to an NPRM with sufficient time provided for persons to review and comment on the proposals. We do not agree. We proposed to make the changes adopted under HM-220D in a notice of proposed rulemaking published under Docket No. RSPA-98-3684 (HM-220) on October 30, 1998 (63 FR 58460). The comment period for HM-220 closed September 30, 1999. In addition, we held three public meetings to discuss the HM-220 proposals on December 8, 1998 (63 FR 58460; October 30, 1998), January 28, 1999 (63 FR 72224; December 31, 1998), and April 13-15, 1999 (64 FR 9114; February 24, 1999). On February 13, 2002, we separated the proposals applicable to current DOT specification cylinders, from those applicable to the metric-marked cylinders, and placed them under Docket No. RSPA-01-10373 (HM-220D) (67 FR 6667). Therefore, RSPA finds the appellants' claim that we did not provide the public with an opportunity to comment on this rule is without merit and is denied.

RSPA's procedural regulations for handling appeals of final rules require us to take action on appeals within 90 days after the date of publication of the final rule (see 49 CFR 106.130). If we anticipate that our decision on an appeal may be delayed beyond the 90-day time frame, we must provide notice of the delay in the Federal Register . For the August 8, 2002 final rule, the 90-day deadline is November 6, 2002. We intend to consider the issues raised by appellants concerning the above listed sections of the August 8, 2002 final rule as expeditiously as possible; however, it is unlikely that we will be able to resolve all the issues by November 6, 2002. We plan to address all issues raised by appellants by May 30, 2003.

The Board is revising its regulations at 49 CFR 1144 to delete obsolete provisions and reflect other changes made by the ICC Termination Act of 1995, Pub. L. 104-88, 109 Stat. 803 (1995) (ICCTA). The rules at section 1144 were issued by the Interstate Commerce Commission (ICC or Commission) in Intramodal Rail Competition, 1 I.C.C.2d 822 (1985), and pertain to three situations: cancellations of through routes and/or joint rates; prescription of a through rate or joint route; and prescription of reciprocal switching. The Board retains jurisdiction to prescribe through routes and joints rates (49 U.S.C. 10705), and to prescribe reciprocal switching (49 U.S.C. 11102, replacing former 49 U.S.C. 11103).

The ICCTA, however, eliminated the joint rate and through route cancellation provisions of former 49 U.S.C. 10705(e) and 10705a. Former section 10705(e) was previously found at former section 15(3) of the Interstate Commerce Act and provided that a joint rate cancellation could be investigated or suspended by the ICC, and if it was suspended and an investigation was instituted, the cancelling carrier had to show that the proposed cancellation was in the public interest. Suspension was considered under the standards of former 49 U.S.C. 10707. See 49 CFR 1144.3. The Staggers Rail Act of 1980 added a new section, former 49 U.S.C. 10705a, which provided a guaranteed cancellation of noncompensatory joint rates (below 110 percent of variable costs). Joint rates 110 percent or higher were to be considered under the public interest standard of former section 10705(e), and if the Commission determined that an investigation was warranted, the cancellation was to be suspended during the pendency of the consideration. See Family Lines Rail System—Unilateral Can. of Joint Rates, 365 I.C.C. 464, 466-67 (1981), aff'd, Southern R. Co. v. Interstate Commerce Commission, 681 F.2d 29 (D.C. 1982).

We will eliminate sections 1144.1, 1144.3, and 1144.4 pertaining to the notification, suspension, and investigation of proposed joint rate cancellations. Not only are these sections obsolete with the elimination of the joint rate cancellation provisions of former 49 U.S.C. 10705(e) and 10705a, but they also contain references to obsolete sections 49 U.S.C. 10762(c)(3) (concerning tariff notification) and 49 U.S.C. 10707 (concerning rate suspensions). We will also remove the reference to through route or joint rate cancellations and suspension and investigation in the negotiations section, 49 CFR 1144.2.

The remainder of section 1144.2 and all of section 1144.5, concerning prescribing a through rate and establishing a switching arrangement, and section 1144.6, general provisions, are still applicable. As noted, the Board retains jurisdiction in these areas pursuant to 49 U.S.C. 10705 and 11102. Accordingly, we will not make any changes to section 1144.2 beyond removing the reference to cancellations, supra. We will not make substantive modifications to section 1144.5 but will only change obsolete references (section 11103 will be changed to section 11102 and section 11101a will be changed to section 11101.) We will remove a reference in section 1144.6 to our rules at 49 CFR 1132, which now pertain only to motor carriers, and the obsolete investigation section, 1144.4. Finally, these three remaining sections of this part will be renumbered as 49 CFR 1144.1, 1144.2, and 1144.3. 1

Because these changes merely remove obsolete regulations based on statutory provisions that have been eliminated and revise other regulations to provide updated statutory references, we find good cause to dispense with notice and comment. See 5 U.S.C. 553(b)(B). Moreover, we find good cause for making these rules effective on less than 30 days' notice under 5 U.S.C. 553(d), so that these changes will be effective by October 1, 2002, which is the cut-off date for revisions to the next edition of the applicable volume of the Code of Federal Regulations.

Copies of the decision may be purchased from Da-2-Da Legal Copy Service by calling 202-293-7776 (assistance for the hearing impaired is available through FIRS at 1-800-877-8339) or visiting Suite 405, 1925 K Street, NW., Washington, DC 20006.

This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

It is ordered:

1. The final rules set forth in this decision are adopted. Notice of the rules adopted here will be published in the Federal Register .

2. This decision is effective on September 30, 2002.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2002 Atka mackerel TAC in the Western Aleutian District of the BSAI is 18,223 metric tons (mt) as established by an emergency rule implementing 2002 harvest specifications and associated management measures for the groundfish fisheries off Alaska (67 FR 956, January 8, 2002, and 67 FR 34860, May 16, 2002).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the Atka mackerel TAC in the Western Aleutian District will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 17,523 mt, and is setting aside the remaining 700 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for Atka mackerel in the Western Aleutian District of the BSAI.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to exceeding the TAC, and therefore reduce the public's ability to use and enjoy the fishery resource.

The Assistant Administrator for Fisheries, NOAA, also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2002 Pacific cod TAC apportioned to vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area is 22,311 metric tons (mt) as established by an emergency rule implementing 2002 harvest specifications and associated management measures for the groundfish fisheries off Alaska (67 FR 956, January 8, 2002 and 67 FR 34860, May 16, 2002).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2002 Pacific cod TAC apportioned to vessels catching Pacific cod for processing by the inshore component of the Central Regulatory Area of the GOA will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 16,811 mt, and is setting aside the remaining 5,500 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to exceeding the TAC, and therefore reduce the public's ability to use and enjoy the fishery resource.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.