Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended (NWPA), requires that “[t]he Secretary [of the Department of Energy (DOE)] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.”' Section 133 of the NWPA states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 218(a) for use at the site of any civilian nuclear power reactor.”'

To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule in 10 CFR part 72 entitled, “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR part 72, entitled “Approval of Spent Fuel Storage Casks” containing procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on April 7, 1993 (58 FR 17948), that approved the VSC-24 design and added it to the list of NRC-approved cask designs in § 72.214 as CoC No. 1007.

On March 30, 2001, and as supplemented on July 26, 2001, and April 29, May 16, and August 8, 2002, BNFL Fuel Solutions Corporation submitted an application to the NRC to amend CoC No. 1007 to permit a part 72 licensee to store different specific fuel control elements as integral components to fuel assemblies. The certificate holder for the VSC-24 system is Pacific Sierra Nuclear Associates, which is a partnership between BNFL Fuel Solutions Corporation and Sierra Nuclear Corporation. Specifically, TS 1.1.1 will be amended to change the flood condition velocity from 7.62 meters per second (m/s) [25 feet per second (ft/s)] to 5.39 m/s (17.7 ft/s); TS 1.2.1, 1.2.4, and 1.2.6 will be amended to address the additional fuel control elements approved for storage; and TS 1.2.10 will be deleted to eliminate redundant requirements for controlling moderator density. The NRC staff revised TS 1.2.1 to limit the allowable fuel burnup to specifically 45 gwd/mtu, which clarified the previous ambiguous terminology. No other changes to the VSC-24 system design were requested in this application. The NRC staff performed a detailed safety evaluation of the proposed CoC amendment request and found that an acceptable safety margin is maintained. In addition, the NRC staff has determined that there is still reasonable assurance that public health and safety and the environment will be adequately protected.

This direct final rule revises the VSC-24 design listing in § 72.214 by adding Amendment No. 4 to CoC No. 1007. The amendment consists of revisions to TS 1.1.1 to change the flood condition velocity from 7.62 meters per second (m/s) [25 feet per second (ft/s)] to 5.39 m/s (17.7 ft/s) and TS 1.2.1, 1.2.4, and 1.2.6 to address the additional fuel control elements approved for storage. In addition, TS 1.2.10 is deleted to eliminate redundant requirements for controlling moderator density. The particular TS which are changed are identified in the NRC Staff's SER for Amendment No. 4.

The amended VSC-24 system, when used in accordance with the conditions specified in the CoC, the TS, and NRC regulations, will meet the requirements of part 72; thus, adequate protection of public health and safety will continue to be ensured.

Certificate No. 1007 is revised indicating the addition of Amendment No. 4 and its effective date.

This rule is limited to the changes contained in Amendment 4 to CoC No. 1007 and does not include other aspects of the VSC-24 system design. The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured. The amendment to the rule will become effective on February 3, 2003. However, if the NRC receives significant adverse comments by December 20, 2002, then the NRC will publish a document that withdraws this action and will address the comments received in response to the proposed amendments published elsewhere in this issue of the Federal Register . A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, in a substantive response:

(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC staff to make a change (other than editorial) to the CoC or TS.

These comments will be addressed in a subsequent final rule. The NRC will not initiate a second comment period on this action. However, if the NRC receives significant adverse comments by December 20, 2002, then the NRC will publish a document that withdraws this action and will address the comments received in response to the proposed amendments published elsewhere in this issue of the Federal Register .

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended (AEA) or the provisions of the Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws, but does not confer regulatory authority on the State.

The Presidential Memorandum dated June 1, 1998, entitled “Plain Language in Government Writing,” directed that the Government's writing be in plain language. The NRC requests comments on this direct final rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the heading ADDRESSES above.

The National Technology Transfer Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC would revise the VSC-24 system design listed in § 72.214 (List of NRC-approved spent fuel storage cask designs). This action does not constitute the establishment of a standard that establishes generally applicable requirements.

Under the National Environmental Policy Act of 1969, as amended, and the NRC regulations in Subpart A of 10 CFR part 51, the NRC has determined that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The rule would amend the CoC for the VSC-24 system within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. The amendment will modify the present cask system design to permit a Part 72 licensee to store different specific fuel control elements as integral components to fuel assemblies. TS 1.1.1 will be amended to change the flood condition velocity from 7.62 meters per second (m/s) [25 feet per second (ft/s)] to 5.39 m/s (17.7 ft/s); TS 1.2.1, 1.2.4, and 1.2.6 will be amended to address the additional fuel control elements approved for storage; and TS 1.2.10 will be deleted to eliminate redundant requirements for controlling moderator density. The environmental assessment and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Single copies of the environmental assessment and finding of no significant impact are available from Jayne M. McCausland, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6219, email jmm2@nrc.gov.

This direct final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget, Approval Number 3150-0132.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in § 72.214. On April 7, 1993 (58 FR 17948), the NRC issued an amendment to Part 72 that approved the VSC-24 design by adding it to the list of NRC-approved cask designs in § 72.214. On March 30, 2001, and as supplemented on July 26, 2001, and April 29, May 16, and August 8, 2002, BNFL Fuel Solutions Corporation submitted an application to the NRC to amend CoC No. 1007 to permit a part 72 licensee to store different specific fuel control elements as integral components to fuel assemblies. TS 1.1.1 will be amended to change the flood condition velocity from 7.62 meters per second (m/s) [25 feet per second (ft/s)] to 5.39 m/s (17.7 ft/s); TS 1.2.1, 1.2.4, and 1.2.6 will be amended to address the additional fuel control elements approved for storage; and TS 1.2.10 will be deleted to eliminate redundant requirements for controlling moderator density.

The alternative to this action is to withhold approval of this amended cask system design and issue an exemption to each general license. This alternative would cost both the NRC and the utilities more time and money because each utility would have to pursue an exemption.

Approval of the direct final rule will eliminate this problem and is consistent with previous NRC actions. Further, the direct final rule will have no adverse effect on public health and safety. This direct final rule has no significant identifiable impact or benefit on other Government agencies. Based on this discussion of the benefits and impacts of the alternatives, the NRC concludes that the requirements of the direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and thus, this action is recommended.

In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only the licensing and operation of nuclear power plants, independent spent fuel storage facilities, and BNFL Fuel Solutions Corporation. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR part 121.

The NRC has determined that the backfit rule (10 CFR 50.109 or 10 CFR 72.62) does not apply to this direct final rule because this amendment does not involve any provisions that would impose backfits as defined. Therefore, a backfit analysis is not required.

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs, Office of Management and Budget.

This rule sets forth integrity and fitness provisions for FDIC contractors in three areas. The first area regards those persons from whom the FDIC is prohibited from entering into a contract. The second area identifies integrity and fitness responsibilities for independent contractors. These include conflicts of interest, minimum standards of ethical responsibility, confidential information, and information that contractors must disclose to the FDIC. The last area regards a contractor's expectations, rights and obligations. These include what advice and determinations the FDIC will provide a contractor, reconsiderations and reviews of those determinations, and the possible consequences a person may face for violating the provisions of this rule.

The statutory authorities for adopting this rule are our general rulemaking authority found at section 9 (Tenth) of the Federal Deposit Insurance Act (FDI Act), 12 U.S.C. 1819 (Tenth); and sections 12(f)(3) and (4) of the FDI Act, 12 U.S.C. 1822(f)(3) and (4). Section 19 of the Resolution Trust Corporation Completion Act (RTCCA), Public Law 103-204, 107 Stat. 2369 (1993), required the addition of section 12(f) to the FDI Act.

We may establish other integrity and fitness policies where we determine such policies are required by law or appropriate to maintain the integrity of our programs. Any such policies may be independent of, in conjunction with, or in addition to the restrictions set forth in this rule.

We may also, temporarily or permanently, suspend this rule or exempt a person from compliance with any part of this rule for good cause shown, in order to protect our interests or to provide an orderly transfer of services to another person.

The contractor integrity and fitness rules, based on statutory requirements, are regulatory tools the FDIC uses to assure that certain of its contractors meet minimum standards of competence, experience, integrity and fitness. See Federal Home Loan Bank Act, section 21A(p)(6), as added by section 501(a) of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Public Law 101-73, 103 Stat. 183. This statute was enacted to ensure that no person who contributed to the failure of an insured depository institution could contract with the FDIC without disclosure and considerable scrutiny.

On June 24, 1994, we published a proposed rule applicable to independent contractors (59 FR 32661-32668), as required by section 12(f)(3) of the FDI Act, 12 U.S.C. 1822(f)(3). That rulemaking proposed standards governing conflicts of interest, ethical responsibilities, and use of confidential information. It also proposed procedures for ensuring that independent contractors meet minimum standards for competence, experience, integrity, and fitness. We received six comment letters. After careful consideration of each comment and numerous changes that the Office of Government Ethics (OGE) requested, we made appropriate modifications to the proposal resulting in the reorganization and modification of some provisions.

On March 11, 1996, we adopted an interim final rule entitled, “Contractor Conflicts of Interest”, (61 FR 9590), with the concurrence of OGE. We determined that an interim final rule was appropriate in order to allow interested parties to comment on the rule while providing prompt implementation of the rule to satisfy concerns relating to the merger of the RTC into the FDIC. We received only one comment on the interim final rule and it was non-substantive.

On May 15, 2002, we published an interim final rule requesting public comment. The interim rule represented a fundamental reconsideration of our obligations under the RTCCA. We received no public comments in response to our May 2002 interim final rule.

We are adopting the May 2002 interim final rule with four minor changes. First, in the interim final rule, § 366.12(c) stated that contractors are required to disclose waste, fraud, abuse or corruption to us. We are adding to § 366.12(c) a telephone number and an email address that can be used to make such reports to the FDIC Inspector General. Second, in the interim final rule, § 366.12(d)(4) prohibited contractors from making impermissible gifts or entertainment to an FDIC employee. We are extending this prohibition to gifts made by FDIC contractors to other FDIC contractors, as well as FDIC employees. This is because there can be occasions in which FDIC contractors may make decisions on behalf of the FDIC. Third, in the interim final rule, § 366.14(f) established retention requirements for information that FDIC contractors submit to the FDIC pursuant to this rule. The interim final rule broadly described the information that must be retained as any information that the contractor relies upon regarding their compliance with part 366. The final rule clarifies that information the contractor relies upon includes information that they prepare. Finally, because the May 2002 interim final rule was unclear as to which event triggers the three year retention period, we are adding the phrase “which ever occurs last” at the end of the sentence for further clarification. As a result, § 366.12(f) will require contractors to retain any information they prepare or rely upon regarding the provisions of part 366 for a period of three years following termination or expiration and final payment of the related contract for services whichever occurs last.

Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the FDIC certifies that the final rule will not have a significant economic impact on a substantial number of small entities. This rule, which finalizes the May 2002 interim final rule, imposes no new compliance burdens on small entities within the meaning of the Regulatory Flexibility Act.

Our May 2002 interim final rule noted that we were reviewing this rule pursuant to our responsibilities under section 610 of the Regulatory Flexibility Act and requested public comment about our review. A section 610 review requires us to consider how we could minimize the economic impact of the rule on small businesses while remaining consistent with the objectives of the statute that requires the rule. Our May 2002 interim rulemaking resulted from a careful consideration of how we could minimize the burden of the 1996 rule. Based on our review under section 610, we conclude that the May 2002 rule changes should successfully reduce burden on small businesses with whom we contract and that no further changes are necessary now.

In accordance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ), we may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. We submitted two collections of information to OMB for review when we published the May 2002 interim final rule.

One collection is titled “Acquisition Services Information Requirements,” and includes forms that we use to ensure compliance with our contractor integrity and fitness regulation and to make contracting decisions for contractors other than legal service providers. The May 2002 rule changed the definitions of some of the terms used on OMB approved contracting forms. Each of the changes reduced estimated burden on our contractors. OMB approved our changes to the information collection under control number 3064-0072, which will expire June 30, 2005.

The second collection is titled, “Forms Relating to FDIC Outside Counsel Services” and includes forms we use to ensure compliance with our contractor integrity and fitness regulation, to make contracting decisions, and to control payments to law firms and legal support service providers. The May 2002 rulemaking affected the definition of terms on one of the 13 forms in that collection and reduced the estimated burden in completing the form. OMB approved our changes to the information collection under control number 3064-0122, which will expire June 30, 2005.

We have determined that this rule will not affect family well-being within the meaning of section 654 of the Treasury and Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121) provides generally for agencies to report rules to Congress for review. The reporting requirement is triggered when the FDIC issues a final rule as defined by the Administrative Procedure Act (APA) at 5 U.S.C. 551. Because the FDIC is issuing a final rule as defined by the APA, the FDIC will file the reports required by the SBREFA. The Office of Management and Budget has determined that this final rule does not constitute a “major rule” as defined by the SBREFA.

The Ente Nazionale per l' Aviazione Civile (ENAC), which is the airworthiness authority for Italy, recently notified FAA that an unsafe condition may exist on all Piaggio Model P-180 airplanes. The ENAC reports an incorrect installation with insufficient clearance between the first outboard flap control rod and the bleed air duct. This caused interference with consequent loss of flap control.

The failure of the flap control rod could lead to loss of airplane control.

PIAGGIO has issued Alert Service Bulletin No. 80-0182, Original Issue: June 7, 2002.

The service bulletin includes procedures for:

The ENAC classified this service bulletin as mandatory and issued Italian AD Number 2002-442, dated August 22, 2002, in order to ensure the continued airworthiness of these airplanes in Italy.

This airplane model is manufactured in Italy and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement.

Pursuant to this bilateral airworthiness agreement, the ENAC has kept us informed of the situation described above.

The FAA has examined the findings of the ENAC; reviewed all available information, including the service information referenced above; and determined that:

This AD requires you to incorporate the actions in the previously-referenced service bulletin.

In preparation of this rule, we contacted type clubs and aircraft operators to obtain technical information and information on operational and economic impacts. We did not receive any information through these contacts. If received, we would have included, in the rulemaking docket, a discussion of any information that may have influenced this action.

Because the unsafe condition described in this document could result in failure of the flap control rod and loss of airplane control, we find that notice and opportunity for public prior comment are impracticable. Therefore, good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule and was not preceded by notice and opportunity for public comment, FAA invites your comments on the rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments to the address specified under the caption ADDRESSES. We will consider all comments received on or before the closing date specified above. We may amend this rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of this AD action and determining whether we need to take additional rulemaking action.

We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. You may view all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each FAA contact with the public that concerns the substantive parts of this AD.

If you want us to acknowledge the receipt of your comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2002-CE-48-AD.” We will date stamp and mail the postcard back to you.

The compliance time of this AD is within the next 15 days after the effective date of the AD.

The compliance of this AD is presented in calendar time instead of hours TIS because the affected first outboard flap control rod and bleed air duct components are unsafe as a result of an incorrect installation. The problem has the same chance of existing on an airplane with 50 hours TIS as it would for an airplane with 1,000 hours TIS. Therefore, we believe that a compliance time of 15 days will:

These regulations 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, FAA has determined that this final rule does not have federalism implications under Executive Order 13132.

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

Raytheon notified FAA of three incidents in which the elevator jammed during takeoff and landing on Models 200, B300, and 1900C airplanes. Investigations showed the cause for the elevator to jam was that the attachment screws and balance weights were not properly installed when the elevators were balanced after they were removed for repair or repainting.

Improperly installed balance weight attachment screws could result in the screws becoming loose and contacting and interfering with the horizontal stabilizer. Interference with the horizontal stabilizer could result in restricted elevator movement.

If this condition is not detected and corrected, loose screws could interfere with the horizontal stabilizer, which could cause restricted elevator movement. This condition could result in loss of elevator pitch control.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Raytheon 200, 300, and 1900 series, and Models F90 and A100-1 airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on July 17, 2002 (67 FR 46928). The NPRM proposed to require you to check the airplane logbook to determine if the elevator(s) has/have been removed from the airplane. If the elevator(s) has/have been removed, the NPRM would also require you to inspect the elevator balance weight attachment screws for correct length, and, if necessary, install new bolts that are of improved design and rebalance the elevator, depending on the results of the inspection.

The FAA encouraged interested persons to participate in the making of this amendment. The following presents the comment received on the proposal and FAA's response to comment:

The commenter states that if the purpose of the proposed AD is to prevent the elevator balance weight attachment screws from becoming loose, then all elevator balance weight attachment screws should be replaced with the new bolts, or at the very least, when the elevators are removed for any reason.

We do not concur with the commenter. According to reports and service history, only elevators that were removed and rebalanced (such as would occur after repainting) were reinstalled with incorrect length screws. We have not received any reports of elevator balance weight attachment screws becoming loose on airplanes in which an elevator had not been removed and rebalanced.

Unless an elevator has been removed and rebalancing is necessary, we have no justification for replacing the elevator balance weight attachment screws with the new bolts when an elevator is removed and reinstalled and rebalancing is not necessary.

In paragraph (d)(5) of the proposed AD, we address installing the new balance weight attachment bolts any time an elevator is removed and rebalancing is necessary.

We have not changed the final rule AD based on this comment.

After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We have determined that these minor corrections:

We estimate that this AD affects 2,334 airplanes in the U.S. registry.

We estimate the following costs to accomplish the check of the airplane logbook:

We estimate the following costs to accomplish the inspection of the elevator balance weight attachment screws that will be required based on the results of the logbook check. We have no way of determining the number of airplanes that will need such inspection:

We estimate the following costs to accomplish the replacement of the elevator balance weight attachment screws that will be required based on the results of the inspection for airplanes in which the logbook check reveals that further inspection is necessary. We have no way of determining the number of airplanes that will need such replacements:

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, recently notified the FAA that an unsafe condition may exist on aircraft (specifically balloons) that incorporate certain Cameron Balloons Ltd. (Sky Balloons) Mk1 (BR1) & Mk2 (Mistral) burners. The CAA reports there have been reports of mechanical failure of the valve stem/seat pinned joint. This could result in a propane vapor leak.

This condition, if not corrected, could lead to a propane explosion and fire.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all aircraft (specifically balloons) that incorporate certain Cameron Balloons Ltd. (Sky Balloons) Mk1 (BR1) & Mk2 (Mistral) burners. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on September 13, 2002 (67 FR 57992). The NPRM proposed to require you to replace the valve stems in the main blast, liquid fire, and pilot light valves.

The FAA encouraged interested persons to participate in the making of this amendment. We did not receive any comments on the proposed rule or on our determination of the cost to the public.

After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We have determined that these minor corrections:

We estimate that this AD affects 100 aircraft (specifically balloons) in the U.S. registry.

We estimate the following costs to accomplish the modification:

Normally, FAA uses a 20-hour TIS compliance time for urgent safety of flight conditions. However, balloon operation varies among operators. It might take operators between 3 months to 12 months or more to accumulate 20 hours TIS. For this reason, FAA has determined that compliance time of this AD should be 20 hours TIS to ensure this condition is corrected in a timely manner but does not unduly penalize operators.

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.

For the reasons discussed above, I certify 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) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the final evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend 14 CFR part 39 to include an AD for certain MDHI Model MD900 helicopters was published in the Federal Register on May 29, 2002 (67 FR 37356). That action proposed to require modifying each swashplate assembly, part number (P/N) 900C2010192-105, -107, and -109. That action also proposed dye-penetrant inspecting for gouging and cracking and, if necessary, repairing the drive link assembly, P/N 900C2010212-101. Recording compliance with the AD on the component history card or equivalent record was also proposed.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed with minor changes in paragraph (b) and Note 2 to further clarify that the dye-penetrant inspection required after modifying the nonrotating swashplate is required before further flight. The dye-penetrant inspection is required whether the drive-link assembly has been dye-penetrant inspected previously. These changes will neither increase the economic burden on any operator nor increase the scope of the AD.

The FAA estimates that this AD will affect 28 helicopters of U.S. registry, that it will take approximately 2 work hours per helicopter to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts will cost approximately $1164 per helicopter. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $35,952.

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.

For the reasons discussed above, I certify 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) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Cessna Model 750 airplanes was published in the Federal Register on November 4, 1999 (64 FR 60136). That action proposed to require replacement of reset circuit breakers for the auxiliary hydraulic pump system and the King KHF 950 high frequency communication system(s) with new circuit breakers.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comment received.

One commenter, the airplane manufacturer, states that it has verified that 100 percent of the affected Cessna Model 750 airplanes have done the replacement required by the proposed AD per Cessna Service Bulletin SB750-24-15, dated May 7, 1999 (which is referenced as an acceptable means of compliance in the proposed AD). The commenter adds that “production aircraft units; 750-0073 through 750-0100 received replacement circuit breakers by disposition,” and that this change was serialized on airplanes having serial number 750-0101 in production, with the incorporation of the split bus.

From this comment, the FAA infers that the commenter is requesting that the proposed AD be withdrawn. We do not agree. The airplane manufacturer provided no data that all affected airplanes, worldwide, have had the required replacement incorporated; therefore, this AD is necessary to address the identified unsafe condition on the affected airplanes.

Because the language in Note 2 of the proposed AD is regulatory in nature, that note has been redesignated as paragraph (b) of this final rule.

After careful review of the available data, including the comment noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the change previously described. The FAA has determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 82 airplanes of the affected design in the worldwide fleet. The FAA estimates that 80 airplanes of U.S. registry will be affected by this AD, that it will take approximately 3 work hours per airplane to accomplish the required replacement, and that the average labor rate is $60 per work hour. The airplane manufacturer has committed previously to its customers that it will bear the cost of replacement parts. As a result, the costs of those parts are not attributable to this AD. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $14,400, or $180 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD, and that no operator would accomplish those actions in the future if this AD were not adopted. However, the FAA has been advised that manufacturer warranty remedies are available for parts and labor costs associated with accomplishing the actions required by this AD. Therefore, the future economic cost impact of this rule on U.S. operators may be less than the cost impact figure indicated above.

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.

For the reasons discussed above, I certify 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) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that is applicable to General Electric Company CF34-8C1 turbofan engines was published in the Federal Register on July 10, 2002 (67 FR 45675). That action proposed to require an air carrier's approved continuous airworthiness maintenance program to incorporate these inspection procedures. That action also proposed that air carriers with an approved continuous airworthiness maintenance program would be allowed to either maintain the records showing the current status of the inspections using the record keeping system specified in the air carrier's maintenance manual, or establish an acceptable alternate method of record keeping.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comment received.

One commenter expresses concern that compliance with this amendment will require removal of coatings on four parts located in noncritical areas. These include the HPT outer torque coupling, HPT shaft, HPC aft shaft spool and the HPC discharge rotating seal listed in Table 805 of the proposal. The FAA agrees that it is unnecesssary to remove the coating on these four parts to meet the intent of the enhanced inspection procedures specified in this AD. Table 805 has been changed accordingly.

After careful review of the available data, including the comment noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the change described previously. The FAA has determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

Since this proposal was published in July of 2002, additional aircraft have been added to the domestic and worldwide fleet. Therefore, the numbers cited in the Economic Analysis have also increased.

There are approximately 104 General Electric Company CF34-8C1 turbofan engines of the affected design in the worldwide fleet. The FAA estimates that 60 engines installed on airplanes of U.S. registry will be affected by this AD, that it will take approximately 75 work hours per engine to perform the required actions, and that the average labor rate is $60 per work hour. Using average shop visitation rates, five engines are expected to be affected per year. Based on these figures, the total cost of the AD on U.S. operators is estimated to be $22,500 per year.

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

The Federal Energy Regulatory Commission published in the Federal Register of November 6, 2002 a Final Rule amending its regulations to update its accounting and financial reporting requirements under its Uniform Systems of Accounts. The effective date is incorrect as published in the Federal Register . In the Federal Register Document 02-26809 published on November 6, 2002 (67 FR 67692) make the following correction: On page 67692, in the second column, correct the EFFECTIVE DATE section to read as follows:

“ EFFECTIVE DATE : The rule will become effective December 6, 2002.”

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kentucky program on May 18, 1982. You can find background information on the Kentucky program, including the Secretary's findings, the disposition of comments, and conditions of approval in the Kentucky program in the May 18, 1982 Federal Register (47 FR 21404). You can also find later actions concerning Kentucky's program and program amendments at 30 CFR 917.11, 917.12, 917.13, 917.15, 917.16, and 917.17.

By letter dated April 12, 2002 (Administrative Record No. KY-1529), Kentucky sent us an amendment to its program, under SMCRA (30 U.S.C. 1201 et seq. ). Kentucky sent the amendment on its own initiative.

The amendment proposed a new section of the Kentucky Revised Statutes at Chapter 350 and is referenced as Kentucky House Bill 405. In sum, the proposed amendment provides that a mining permit is not required of a landowner if coal extraction on “private land” is incidental to and a necessary requirement of construction, under 5000 tons, and the coal or proceeds thereof are donated to charitable, governmental, or educational organizations. “Private land” is defined as property owned by a not-for-profit organization or by a noncommercial private owner and subject to the construction of improvements. The amendment requires that the landowner seeking the permit exemption notify the cabinet when the coal is first encountered and prior to removal, and requires the cabinet to conduct an inspection and review of site plans, construction contracts, and other relevant information prior to deciding whether to grant the exemption. Finally, the amendment states that the cabinet may require implementation of any best management practices that are necessary to ensure compliance with stormwater discharge limits. The full text of the proposed amendment can be found in the proposed rule notice at 67 FR 38446 (June 4, 2002).

We announced receipt of the proposed amendment in the June 4, 2002 Federal Register (67 FR 38446). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (Administrative Record No. KY-1537). We did not hold a public hearing or meeting because no one requested one. The public comment period ended on July 5, 2002. We received comments from the Kentucky Coal Association, the Mine Safety and Health Administration, the Fish and Wildlife Service, and the Kentucky Resources Council.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Based on these findings, we are declining to approve the amendment.

Kentucky's proposed amendment is inconsistent with and less stringent than SMCRA and less effective than its implementing regulations because it excludes from regulation certain surface coal mining operations specifically regulated under Federal law. Under SMCRA and Federal regulations, all surface coal mining and reclamation operations are subject to regulation unless an exemption applies. SMCRA section 528 and 30 CFR 700.11(a) list such exemptions.

First, SMCRA section 528(2) exempts “the extraction of coal as an incidental part of Federal, State or local government-financed highway or other construction * * *” Congress' intent regarding this exemption is clear. As discussed in a March 13, 1979, Federal Register notice, 44 FR 14949, the House/Senate Conference Committee explicitly limited exemptions for incidental coal removal to government financed construction projects. As originally added by the Senate, the exemption for incidental coal removal was not limited to government-financed construction. The Conference Committee modified the Senate language to “limit(s) the exemption to extraction of coal as an incidental part of government-funded construction only, rather than all construction as originally provided in the Senate language.” Since Kentucky's proposed amendment involves privately financed construction, it directly contradicts Congress' intent and cannot be approved.

We have consistently maintained that the removal of coal incidental to development for commercial, industrial, residential, or civic use constitutes a surface coal mining operation. In 64 FR 6201 (February 9, 1999), we did not approve a proposed amendment by West Virginia which would have allowed a person to engage in surface coal mining incidental to the development of land for commercial, residential, industrial, or civic use after obtaining a special authorization from the State. In that Federal Register notice, we stated that “in promulgating its definition of ‘surface coal mining operations’ at 30 CFR 700.5, OSM considered and rejected a provision that would have clarified that the definition did not apply to coal removal incidental to private construction * * * OSM found that such an exemption was inconsistent with Section 528 of SMCRA.” 64 FR at 6204.

Rejecting West Virginia's proposed amendment, we also referred to two Interior Board of Land Appeals (IBLA) decisions supporting our decision: “The [IBLA] * * * twice ruled that ‘the extraction of coal as an incidental part of privately financed construction is not an activity excluded as such from the coverage of the * * * regulatory program.’” Id. On May 5, 2000 (65 FR 26130, 26133), we referred again to these decisions when declining to approve a similar proposal by West Virginia.

Second, 30 CFR 700.11(a)(2) exempts surface coal mining and reclamation operations that involve extraction of 250 tons of coal or less. Therefore, no exemption is permitted for the extraction of more than 250 tons of coal. Kentucky's proposal is inconsistent with and less effective than this Federal requirement because it exempts the extraction of up to 5000 tons of coal incidental to privately financed construction. For the foregoing reasons, the proposed amendment is inconsistent with and less effective than Federal law and cannot be approved.

We asked for public comments on the amendment (Administrative Record No. KY-1537), and received two. First, in a letter dated June 27, 2002 (Administrative Record No. KY-1543), the Kentucky Resources Council (KRC) commented that SMCRA does not provide an exemption allowing removal of over 250 tons of coal absent a permit unless another recognized exemption applies. As explained in the findings above and because no other exemption applies, we agree with KRC. We also agree with KRC that removing the quantity of coal that Kentucky's proposal seeks to exempt without advance planning, bonding, and reclamation requirements can result in significant off-site impacts that may not be remediated. Finally, KRC commented that the proposed amendment furthers the potential for “sham” operations because the exemption would be granted on the assumption that future construction would occur.

The second public comment received was from the Kentucky Coal Association (KCA). Although KCA urged OSM to approve the proposed amendment, it did not provide specific comments or reasons why the amendment should be approved. For the reasons set forth in the above findings, we are not approving the amendment.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Kentucky program (Administrative Record No. KY-1537). We received one comment from the Fish and Wildlife Service (FWS) and one from the Mine Safety and Health Administration (MSHA). In a letter dated July 9, 2002 (Administrative Record No. KY-1548), FWS stated that it believed the terms of the proposed amendment are appropriate given adequate implementation of best management practices to protect water quality. As discussed in the findings above, Kentucky's proposed amendment is inconsistent with SMCRA and its implementing regulations. Even given adequate implementation of best management practices to protect water quality, the proposed amendment would still exceed the Federal exemption limit of 250 tons. Thus, even if best management practices are followed, the amendment cannot be approved.

Comments from MSHA, submitted in a letter dated June 17, 2002 (Administrative Record No. KY-1541), simply stated MSHA does not have jurisdiction over incidental coal removal since the activity would not be functioning for the purpose of producing a mineral.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ).

None of the revisions that Kentucky proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On June 12, 2002, we requested comments on Kentucky's amendment (Administrative Record No. KY-1537), but neither the SHPO nor the ACHP responded to our request.

Based on the above findings, we are not approving Kentucky's proposed amendment. The Federal regulations at 30 CFR Part 917 codifying decisions concerning the Kentucky program are being amended to implement this decision. Consistency of State and Federal standards is required by SMCRA.

Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an approved State program be submitted to OSM for review as a program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any changes to approved State programs that are not approved by OSM. In the oversight of the Kentucky program, we will recognize only the statutes, regulations, and other materials we have approved, together with any consistent implementing policies, directives, and other materials. We will require Kentucky to enforce only approved provisions.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior 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. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Hence, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

On August 19, 2002 (67 FR 53765), EPA published a notice of proposed rulemaking (NPR) for the State of Montana. The NPR proposed approval of a State Implementation Plan (SIP) revision submitted by the Governor of Montana on April 30, 2001. The April 30, 2001 submittal revises the State's Administrative Rules of Montana (ARM) by adding a Credible Evidence Rule (ARM 17.8.132). The intended effect of this action is to make the Credible Evidence Rule Federally enforceable.

Since we received no comment on the August 19, 2002 notice of proposed rulemaking, EPA is approving a State Implementation Plan (SIP) revision submitted by the Governor of Montana on April 30, 2001. The April 30, 2001 submittal revises the State's Administrative Rules of Montana (ARM) by adding a Credible Evidence Rule (ARM 17.8.132).

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 (Pub. L. 104-4).

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 21, 2003. 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” are used we mean the EPA.

The EPA is approving revisions to the particulate matter emissions regulations for Union Tank Car, which operates a railcar manufacturing facility in Lake County, Indiana. IDEM submitted the revisions to EPA on April 30, 2002 and September 6, 2002 as an amendment to Indiana's SIP at 326 IAC 6-1-10.1.

IDEM changed the emission limits for particulate matter less than 10 μm in diameter (PM-10) at the grit blasting unit from 0.002 pounds per ton (lbs/ton) to 0.01 grains per dry standard cubic foot (gr/dscf), and from 0.020 to 9.9 pounds per hour (lb/hr). IDEM changed the units from pounds per ton to grains per dry standard cubic foot because grains per dry standard cubic foot can be measured directly. The new limit of 9.9 lb/hr results from the unit emitting 0.01 gr/dscf when operated at 117,000 actual cubic feet per minute (acf/min). IDEM revised emission limits because the previous limits were far more stringent than the limits for similar sources; and were not feasible.

Indiana submitted a letter to EPA on May 6, 2002, in which it stated that meeting the current PM-10 limits is infeasible for the Union Tank Car grit blaster or any other similar sources. In that letter, Indiana noted that the present limit of 0.020 lb/hr is equivalent to 0.00039 gr/acf. Indiana stated that the Union Tank Car limits are 100 times more stringent than those that apply to similar Lake County, Indiana sources. The letter also indicated that the actual PM-10 emissions from Union Tank Car will not increase as a result of this regulatory change.

Particulate matter interferes with lung function when inhaled. Exposure to PM can cause heart and lung disease. PM also aggravates asthma. Airborne particulate is the main source of haze that causes a reduction in visibility. It also is deposited on the ground and in the water. This harms the environment by changing the nutrient and chemical balance.

Although Union Tank Car's allowable PM-10 emission limits are being relaxed, its actual emissions will not increase. Indiana included the company's actual emissions in the Lake County PM-10 modeling analysis, which EPA approved on June 15, 1995 (60 FR 31412). In the Lake County modeling analysis, Indiana showed that the PM-10 NAAQS will be protected with Union Tank Car's current emission levels. Therefore, this SIP revision should not harm air quality.

The EPA is approving, through direct final rulemaking, revisions to the particulate matter emissions regulations for Union Tank Car in Lake County, Indiana. The new PM-10 emission limits for the grit blasting are 0.01 gr/dscf and 9.9 lb/hr.

We are publishing this action without a prior proposal because we view these as noncontroversial revisions and anticipate no adverse comments. However, in the “Proposed Rules” section of today's Federal Register , we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on January 21, 2003 without further notice unless we receive relevant adverse written comment by December 20, 2002. If the EPA receives adverse written comment, we will publish a final rule informing the public that this rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. The EPA does not intend to institute a second comment period on this action. Any parties interested in commenting on these actions must do so at this time.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 21, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

• Industry (NACIS 111, 112, 311, 32532), e.g., Crop Production, Animal Production, Food Manufacturing, Pesticide Manufacturing.

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

1. Docket . EPA has established an official public docket for this action under docket ID number OPP-2002-0291. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

2. Electronic access . You may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/. A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr180_00.html, a beta site currently under development. To access the OPPTS Harmonized Guidelines referenced in this document, go directly to the guidelines at http://www.epa.gov/opptsfrs/home/guidelin.htm.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket ID number.

In the Federal Register of November 21, 2001 (66 FR 58481) (FRL-6802-1), EPA issued a notice pursuant to section 408 of the FFDCA, 21 U.S.C. 346a(e), as amended by FQPA (Public Law 104-170), announcing the filing of a pesticide tolerance petition (PP 1F6324) by Micro Flow Company, P.O. Box 5948 Lakeland, FL 33807-5948. This notice included a summary of the petition prepared by the petitioner Micro Flow Company. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.1181 be amended by establishing an exemption from the requirement of a tolerance for residues of Bacillus cereus strain BPO1.

New section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section of the FFDCA (b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, section 408(b)(2)(D) of the FFDCA requires that the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Acute mammalian toxicity/pathogenicity studies via oral, dermal, inhalation, eye, intratracheal, and intravenous routes were conducted with Bacillus cereus strain BPO1. No pathogenicity was observed. BPO1 was also tested for entero toxin emetic-toxin production; no toxins were detected. Bacillus cereus has been implicated in nosocomial infections in rare instances and in food poisoning incidents. In the ELISA Analysis of Enterotoxin data submitted, there was no evidence of diarrhoeal type enterotoxin production in the culture filtrates of Bacillus cereus strain BOP1 or the end use product. In a blood agar hemolysis assay conducted with BPO1, weak alpha hemolysis was observed. Based on the results of the studies in this unit, subchronic, reproductive, teratology, chronic, and mutagenicity studies were not deemed necessary.

1. Acute oral toxicity/pathogenicity (OPPTS 870.1100; 152A-10 and 152B-10; MRIDs 4417737-05 and 441773-06). In the acute oral toxicity test, five male and five female rats were treated with a split dose, (10 milliliters/kilograms/dose) (mL/kg) for a total of 5,000 milligrams (mg)/kg of Bacillus cereus strain BP01; the second dose administered 1 hour after the first dose. Rats were weighed and observed for mortality or abnormalities for 14 days. No abnormalities were noted in body weight or weight gain throughout the study or upon necropsy. The oral lethal dose (LD) 50 Bacillus cereus strain BP01 was determined to be greater than 5,000 mg/kg body weight.

In the acute oral toxicity/pathogenicity test, 15 males and 15 females received a dose of 1.23 x 10 8 colony forming units (CFU) of the test substance by oral gavage; nine males and nine females were treated with 1.23 x 10 8 CFU killed test substance (by steam sterilization). Rats were weighed on days 0, 3, 7, 14, and 18 and signs of toxicity were observed daily. Randomly sampled rats from each sex and each test group were sacrificed on days 0, 3, 7, 14, and 18 and examined for any macroscopic abnormalities. Samples of the kidneys, liver, spleen, and stomach as well as feces were homogenized and plated to determine the number of typical Bacillus cereus colonies after incubation at 30 0 C for at least 18 hours. No clinical sign were noted throughout the study and no abnormalities were noted in any animal at necropsy. Two males displayed a loss in body weight from day 0 to 3 and five females lost weight from day 7 to 14. No other abnormalities were noted in body weights or weight gain. Bacillus cereus strain BP01 is not toxic, pathogenic or infective when 1 x 10 8 CFU was administered orally. A distinct clearance pattern was observed throughout the study.

2. Acute dermal toxicity (OPPTS 870.1200; 152A-11; MRID 441773-07). Five male and five female rabbits were given a dose of 4.4 x 10 10 CFU (2 grams (g)) dermally for 24 hours and observed after dosing for signs of toxicity and dermal irritation for 14 days. No clinical signs, except dermal irritation, were noted during the study and no abnormalities were noted upon necropsy. Two males and five females displayed a loss in body weight from day 0 to day 7. All animals displayed a weight gain through the end of the study. All males and females showed slight to well defined redness through day 4; very slight erythema was present in up to three males and three females through day 11. Dermal irritation was no longer apparent by day 12. Slight signs of edema were apparent in two males on day 3. Edema was no longer present by day 4. The LD 50 of Bacillus cereus strain BP01 is greater than 2 grams per animal. Mild to moderate dermal irritation was noted and was no longer present by day 13.

3. Acute intratracheal toxicity/pathogenicity (OPPTS 885.3150; 152A-12; MRID 441773-08). Fifty female and fifty male rats received a single dose of 7 x 10 7 (males), or 9.33 x 10 7 CFU (females) of the test substance in a volume of 0.5 mL by intratracheal administration; fifty females and fifty males were treated with the same concentration of killed test substance (by steam sterilization); an additional fifty males and fifty females served as controls. Rats were weighed weekly and observed for signs of toxicity daily. Ten rats of each sex from each group were sacrificed on days 0, 7, 14, 21, and 36. Animals were examined for macroscopic abnormalities by necropsy. Lungs were evaluated by histopathological examination. Samples of the kidneys, liver, spleen, brain, mesenteric lymph nodes, blood, lungs, and caecum were homogenized, plated, and incubated for at least 18 hours then examined for typical Bacillus cereus colonies. Body weight losses were noted in females from the test substance group, one during the first, second and third weeks. No other abnormalities were noted in body weight or weight gain throughout the study. In the group treated with the test substance, three females displayed a rough hair coat, two females showed signs of labored respiration, and one female had hunched posture on day 0. Clinical signs were no longer apparent by day 2. Each treatment group had three males and females displaying mottled, dark red lungs on day 0. Red to tan lesions remained on the majority of animals through day 21. Bacillus cereus strain BP01 is not toxic, pathogenic or infective to rats at an intratracheal dose of either 7 x 10 8 or 9.33 x 10 8 CFU. A slow but typical clearance pattern was observed; slow clearance in the lung with distinct clearance pattern noted in the liver and spleen. The lesions present in the histopathology sections in both the killed and live test substance animals indicate an inflammatory response to the treatment due to the presence of particulate material.

4. Acute intravenous toxicity (OPPTS 885.3200; 152A-13; MRID 441773-09). Five male and five female rates were intravenously injected with either 0.5 mL of Bacillus cereus , 0.5 mL of the killed test substance, or kept as a naive control. The rats were weighed before initial dosing and weekly thereafter. Animals were observed for clinical signs twice daily for 14 days. All rats were examined by necropsy for any macroscopic abnormalities at the end of the study. One female displayed a loss in body weight from day 0 to day 17. No other abnormalities were noted in body weight or weight gain throughout the study. No clinical signs were reported by the testing facilty and no abnormalities were noted upon necropsy. Although Bacillus cereus strain BP01 is not toxic to rats at an intravenous dose of 2.0 x 10 7 CFU, the registrant failed to submit the clearance portion of the study. However, this study does not need to be repeated because the oral and intratracheal studies demonstrated distinct clearance patterns.

5. Primary eye irritation (OPPTS; 870.2400; 152A-14; MRID 441773-10). Three male and three female, young adult, New Zealnad White rabbits were given a single dose of 0.1g (equivalent to 2.2 x 10 9 CFU) of the microbial pest control agent (MPCA) in the everted lower right eyelid of each animal. The eye was gently held together for 2 seconds to prevent a loss of material. The left eye served as the control for each animal. The Draize Method was used to score ocular irritation and lesions at 1 hour, and 1, 2, 3, 4, and 7 days post dosing. A 2% fluorescein solution and ultraviolet light was used after 24 hours to evaluate corneal epithelial damage. Slight to moderate redness, chemosis, and occasional discharge was observed in all 6 animals within 1 hour post dosing. Clinical signs were no longer apparent by day 3. No abnormalities were observed in any control eye during the study. The primary irritation scores at 24 hours post dosing was 4.8 when a 0.1g (2 x 10 9 CFU) ocular dose was administered. Ocular irritation was no longer present by day 3.

6. Immunotoxicity (OPPTS 880.3800). Immune response, teratogenicity, virulence enhancement, and mammalian mutagenicity (40 CFR 158.740(c)(2)(vi) through (xv), were not required since survival, replication, infectivity, toxicity, or persistence of the microbial agent was not observed in the test animals treated in the Tier I infectivity tests.

7. Hypersensitivity (OPPTS 870.2600; 152-15). Incidents of hypersensitivity must be reported to the Agency in a timely manner. There have been no reports of incidents of hypersensitivity to Bacillus cereus since it was registered.

In examining aggregate exposure, section 408 of the FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

1. Food. While the suggested use pattern may result in dietary exposure with possible residues on food and feed, negligible risk is expected for both the general population, infants and children. Submitted acute toxicology tests confirm that based upon the use sites, use patterns, application method, use rates, low exposure, and lack of significant toxicology concerns, the potential risks, if any, to humans are considered negligible, therefore an exemption from the requirement of a tolerance is warranted. Acute exposure could occur from the proposed outdoor use sites but would be very low because of the low application rates of less than 48 fluid ounces of BP01/acre/year in cotton and less than 32 fluid ounces of BP01/acre/year in soybean. Considering the low application rates, lack of toxicity/pathogenicity, ubiquitous nature and natural occurrence of Bacillius cereus , no residue data were required.

2. Drinking water exposure. The microorganism Bacillus cereus is ubiquitous in many soils throughout the world. Bacillus cereus is not known as an aquatic bacterium and therefore is not expected to proliferate in aquatic habitats. The potential exists for Bacillus cereus strain BPO1 to enter ground water or other drinking water sources, after application. Both percolation through soil and municipal treatment of drinking water would reduce the possibility of exposure to Bacillus cereus through drinking water. Moreover, Bacillus cereus strain BPO1 is not considered to be a risk to drinking water. The Agency has no drinking water exposure concerns, because exposure is minimal to non-existent and the demonstrated lack of toxicity or pathogenicity for the Bacillus cereus Strain BP01 microbe.

The potential of non-dietary exposures to Bacillus cereus strain BPO1 pesticide residues for the general population, including infants and children, is unlikely since this is only an agricultural use pesticide. The Agency believes that the potential aggregate exposure, derived from dermal and inhalation exposure via mixing, loading, and applying Bacillus cereus strain BPO1, should fall well below the currently tested microbial safety levels.

1. Dermal exposure . Dermal exposure via the skin would be the primary route of exposure for mixer/loader applications. Unbroken skin is a natural barrier to microbial invasion of the human body. Dermal absorption could occur only if the skin were cut, if the microbe were a pathogen equipped with mechanisms for entry through or infection of the skin, or if metabolites were produced that could be dermally absorbed. Submitted acute dermal toxicity data confirmed a lack of dermal toxicity and mild to moderate dermal irritation was only observed until day 13 of the study.

2. Inhalation exposure. Inhalation would be the primary route of exposure for mixer/loader applications. Because the pulmonary study showed no adverse effects, the risks anticipated for the route of exposure are considered minimal.

The Agency has considered available information on the cumulative effects of such residues and other substances that have a common mechanism of toxicity. These considerations included the cumulative effects on infants and children of such residues and other substances with a common mechanism of toxicity. Because there is no indication of mammalian toxicity to this, the Agency is confident that there will not be cumulative effects from the registration of this product

1. U.S. population . There is a reasonable certainty that no harm will result from aggregate exposure to the U.S. population from exposure to Bacillus cereus . This includes all anticipated dietary exposures and all other exposures for which there is reliable information. The Agency has arrived at this conclusion based on the very low levels of mammalian toxicity (no toxicity at the maximum doses tested, Toxicity Categories III and IV for irritation) associated with Bacillus cereus strain BP01 and the history of safe use of Bacillus cereus .

2. Infants and children . FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold margin of exposure (safety) for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database unless EPA determines that a different margin of exposure (safety) will be safe for infants and children. Margins of exposure (safety) are often referred to as uncertainty (safety) factors. A battery of acute toxicity/pathogenicity studies is considered sufficient by the Agency to perform a risk assessment for microbial pesticides. Other strains of Bacillus cereus have been implicated in nosocomial infections in rare instances and in food poisoning incidents. In the ELISA Analysis of Enterotoxin test data submitted there was no evidence of diarrhoeal type enterotoxin production in the culture filtration of Bacillus cereus strain BPO1 or the end use product. Data relating to the post application die off of Bacillus cereus species vs. background soil population counts demonstrated that this organism is very stable in the soil and rhizosphere. Also, for food use of microbial pesticides, the acute toxicity/pathogenicity studies have allowed for the conclusion that an exemption from the requirement of a tolerance is appropriate and adequate to protect human health, including that of infants and children.

EPA is required under the FFDCA, as amended by FQPA, to develop a screening program to determine whether certain substances (including all pesticide active and other ingredients) “may have an effect in humans that is similar to an effect produced by a naturally-occurring estrogen, or other such endocrine effects as the Administrator may designate.” Following the recommendations of its Endocrine Disruptor Screening and Testing Advisory Committee (EDSTAC), EPA determined that there is no scientific basis for including, as part of the program, the androgen and thyroid hormone systems in addition to the estrogen hormone system. EPA also adopted EDSTAC's recommendation that the program include evaluations of potential effects in wildlife. For pesticide chemicals, EPA will use FIFRA and, to the extent that effects in wildlife may help determine whether a substance may have an effect in humans, FFDCA authority to require wildlife evaluations. As the science develops and resources allow, screening of additional hormone systems may be added to the Endocrine Disruptor Screening Program (EDSP). When the appropriate screening and/or testing protocols being considered under the Agency's EDSP have been developed, Bacillus cereus may be subjected to additional screening and/or testing to better characterize effects related to endocrine disruption.

Based on available data, no endocrine system-related effects have been identified with consumption of Bacillus cereus strain BP01. It is a naturally occurring bacteria. To date, there is no evidence to suggest that Bacillus cereus affects the immune system, functions in a manner similar to any known hormone, or that it acts as an endocrine disruptor.

The Agency proposes to establish an exemption from the requirement of a tolerance without any numerical limitation based upon the lack of mammalian toxicity of Bacillus cereus and the lack of exposure with the plant growth regulator use pattern. For the same reasons, the Agency has concluded that an analytical method is not required for enforcement purpose for Bacillus cereus.

There are no Codex harmonization consideration since there is currently no codex tolerance for Bacillus cereus residues.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2002-0291 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before January 21, 2003.

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

Mail your written request to: Office of the Hearing Clerk (1900C), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Rm.104, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (703) 603-0061.

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

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by telephone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit IX.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.1. Mail your copies, identified by docket ID number OPP-2002-0291, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.1. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

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

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

This is a synopsis of the Commission's Report and Order, MB Docket No. 02-223, adopted September 10, 2002, and released September 17, 2002. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This Federal Register document is available on the Government Printing Office's Web site at: http://www.access.gpo.gov/su_docs/ca/docs/aces/aces140.html . Background information and documents are available at the NMFS Northwest Region Web site at: http://www.nwr.noaa.gov/1sustfsh/gdfsh01.htm and at the Pacific Fishery Management Council's Web site at: http://www.pcouncil.org .

The Pacific Coast Groundfish FMP and its implementing regulations at 50 CFR part 660, subpart G, regulate fishing for over 80 species of groundfish off the coasts of Washington, Oregon, and California. Annual groundfish specifications and management measures are initially developed by the Pacific Fishery Management Council (Pacific Council), and are implemented by NMFS. The specifications and management measures for the current fishing year (January 1-December 31, 2002) were initially published in the Federal Register as an emergency rule for January 1-February 28, 2002 (67 FR 1540, January 11, 2002), as a proposed rule for all of 2002 (67 FR 1555, January 11, 2002), and as a final rule effective March 1, 2002 (67 FR 10490, March 7, 2002). The final rule was subsequently amended at 67 FR 15338, April 1, 2002; at 67 FR 18117, April 15, 2002; at 67 FR 30604, May 7, 2002; at 67 FR 40870, June 14, 2002; at 67 FR 44778, July 5, 2002; at 67 FR 48571, July 25, 2002; at 67 FR 50835, August 6, 2002; at 67 FR 55166, August 28, 2000; at 67 FR 56497, September 4, 2002; at 67 FR 57973, September 13, 2002; at 67 FR 62204, October 4, 2002; at 67 FR 62401, October 7, 2002; and at 67 FR 64826, October 22, 2002.

The following changes to current groundfish management measures were recommended by the Pacific Council, in consultation with Pacific Coast Treaty Tribes and the States of Washington, Oregon, and California, at its October 29-November 1, 2002, meeting in Foster City, CA. Pacific Coast groundfish landings will be monitored throughout the year, and further adjustments will be made as necessary to allow achievement of or to avoid exceeding the 2002 optimum yields (OYs) and allocations.

On September 10, 2002, NMFS implemented an emergency rule to establish new depth-based management measures in the Pacific Coast groundfish fishery north of 40°10′ N. lat. for September-December 2002 (67 FR 57973, September 13, 2002). This emergency rule created the Darkblotched Rockfish Conservation Area (DBCA) to protect darkblotched rockfish, an overfished species, and re-opened areas outside the DBCA to limited entry trawl harvest of healthy groundfish stocks that otherwise would have been foregone to protect darkblotched rockfish. Fishing with limited entry trawl large footrope gear has been permitted seaward of the DBCA September-December and fishing with limited entry small footrope gear has been permitted shoreward of the DBCA during October-December.

When setting rockfish incidental catch allowance recommendations for the area shoreward of the DBCA in October's inseason action (67 FR 62401, October 7, 2002), the Pacific Council overlooked allowances for nearshore rockfish and widow rockfish. After discussing this issue at its October/November meeting, instead of prohibiting retention of nearshore and widow rockfish, the Pacific Council recommended limited entry trawl small footrope limits of 300 lb (136 kg) per month for nearshore rockfish and 500 lb (227 kg) per month for widow rockfish for the November-December cumulative period north of 40°10' N. lat. These incidental catch allowances will decrease the discard of rockfish incidentally taken with nearshore flatfish species, but are not expected to cause the 2002 OYs for any rockfish species or species group to be exceeded.

Another incidental catch allowance issue brought to the Pacific Council's attention at their October/November meeting was that of groundfish retention in the exempted trawl fishery for California halibut. Since July 1, 2002 (67 FR 44778), all groundfish retention with exempted trawl gear south of 40°10' N. lat. has been prohibited to protect bocaccio. In addition to slowing the catch of bocaccio, prohibiting the retention of all groundfish species taken with exempted trawl gear has resulted in the discard of small amounts of valuable flatfish species in the trawl fishery for California halibut. Because flatfish species are taken incidentally with California halibut at depths shallower than where bocaccio are typically found (less than 40 fm (73 m)), an incidental catch allowance for nearshore flatfish is not expected to result in additional catch of bocaccio rockfish. Therefore, the Pacific Council recommended a California halibut exempted trawl flatfish sub-limit of up to 100 lb (45 kg) per day, provided that flatfish are landed with at least one California halibut, and an exempted trawl flatfish limit of between 100 lb (45 kg) and 300 lb (136 kg) per day, not to exceed 3,000 lb (1,361 kg) per month, provided the amount of flatfish landed does not exceed the amount of California halibut landed. Because of the small size of this incidental catch allowance and the variability of California halibut catch rates, the Pacific Council recommended suspension of the previous requirement that groundfish poundage not exceed non-groundfish poundage for flatfish landings of less than 100 lb (45 kg). These low incidental catch allowances are not expected to result in an effort shift whereby vessels would be targeting flatfish.

These actions are authorized by the Pacific Coast groundfish FMP and its implementing regulations, and are based on the most recent data available. The aggregate data upon which these actions are based are available for public inspection at the Office of the Administrator, Northwest Region, NMFS, (see ADDRESSES ) during business hours.

The Assistant Administrator for Fisheries (AA), NMFS, finds good cause to waive the requirement to provide prior notice and opportunity for public comment on this action pursuant to 5 U.S.C. 553(b)(B), because providing prior notice and opportunity for comment would be impracticable. It would be impracticable because the trip limit adjustments are for the November-December cumulative trip limit period and affording prior notice and opportunity for public comment would not allow fishers to take advantage of this harvest opportunity. This would impede the agency's function of managing fisheries to approach without exceeding the OY for federally managed species. The AA is also waiving the 30-day delay in effectiveness requirement under 5 U.S.C. 553(d)(1) because this rule relieves a restriction. Delaying implementation of these trip limit adjustments may cause unnecessary hardship among the West Coast groundfish fleets. In 2002, the West coast groundfish fleet has suffered severe cutbacks in season lengths, areas, and species available to be fished in an effort by the Pacific Council to primarily protect darkblotched and bocaccio rockfish, both overfished species. Both of the trip limit adjustments in this document are increases from the status quo. Increases to trip limits for healthy stocks must be implemented in a timely manner to alleviate some of the economic and social burden fishermen and fishing communities have to bear to protect overfished and depleted groundfish species. Delaying implementation of these trip limit adjustments would restrict fishermen to the reduced trip limits put in place by the July and October inseason actions.

These actions are taken under the authority of 50 CFR 660.323(b)(1) and are exempt from review under Executive Order 12866.

The U.S. Atlantic swordfish fishery and the tuna fisheries are managed under the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP) and regulations at 50 CFR part 635 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. and the Atlantic Tunas Convention Act (ATCA), 16 U.S.C. 971 et seq. Regulations issued under the authority of ATCA carry out the recommendations of ICCAT. The November 15, 2001, proposed rule (66 FR 57409) contains the background information for these promulgated measures and that information is not repeated here.

The 2000 ICCAT recommendation relating to the Atlantic bigeye tuna import prohibitions for Belize, Cambodia, Equatorial Guinea, and St. Vincent and the Grenadines is implemented herein. The recommendation indicates that the import prohibition on Atlantic bigeye tuna and its products in any form from Honduras shall take effect on January 1, 2002, unless ICCAT decided otherwise at its 2001 meeting. In 2001, ICCAT did not come to consensus to not impose the import prohibitions scheduled to go in effect in January 2002. There was no decision concerning whether Honduras had brought its fishing practices into conformity with ICCAT conservation and management measures and whether trade restrictions on Honduras should be removed. At the 2002 ICCAT meeting, it was recommended that the ban on imports of bigeye tuna from Honduras be lifted. Pending a review of the 2002 ICCAT recommendations and an assessment of the need for further rulemaking, NOAA Fisheries is not finalizing the trade sanctions with regards to Honduras that had been included in the proposed rule.

NMFS held three public hearings in November and December 2001 in Fort Lauderdale, FL; Fairhaven, MA; and Barnegat Light, NJ. Comments were received from fishery participants and other members of the public regarding the proposed regulations. In addition, two written comments were submitted to NMFS during the 45-day comment period. The comments are summarized here together with responses.

Comment 1: One commenter supports the 400-mt quota transfer as a one-time transfer from the Incidental category to a reserve quota as a short-term solution for the United States to retain its unharvested quota under U.S. authority. Several commenters opposed the establishment of a reserve for under-harvested quota. One commenter was disappointed that the quota to fill the new reserve would be unused directed fishery quota instead of incidental quota which was agreed to by industry at the 2000 ICCAT meeting.

Response: NMFS will carry over unused directed and incidental quota as is currently authorized in the regulations, except if a reserve quota is needed for a specific reason. Recently, NMFS carried over unused 1999 directed and incidental quota and allocated it to the incidental quota for the 2001 fishing year. Because the directed fishery is not harvesting its allocated quota, it will not affect fishery participants to fill the reserve quota with unused directed quota from the past.

Comment 2: We should not transfer quota free of charge for use by other ICCAT countries. We should sell them quota, as is currently being done elsewhere.

Response: As part of its allocation criteria, ICCAT prohibits participating countries from trading or selling their quota allocation. Goodwill transfers such as this one may result in increased research and cooperation with respect to all ICCAT-managed species. Further, the environmental benefits are substantial because they facilitate maintaining compliance with the ICCAT rebuilding plan.

Comment 3: The regulations need to clarify if establishing a reserve quota category is intended to represent a one-time quota transfer or if the reserve category would be replenished in the future by unused quota from other categories (e.g, unused incidental quota).

Response: The reserve category is established permanently and could, but would not necessarily, be replenished in the future. This rule does not place a standard amount of quota into that category annually.

Comment 4: Underharvests in the incidental catch quota category should be transferred to the directed fishery quota.

Response: NMFS will consider the need for underharvests of the incidental catch quota to be allocated to the directed fishery following each fishing year. Because the directed fishery is currently not catching its quota allocation, transferring unused quota to that category may only serve to increase the amount of quota left unharvested. By transferring unharvested quota to the reserve quota category, NMFS could apply the unused quota to the incidental catch or directed catch categories as necessary or for other purposes consistent with ICCAT recommendations and objectives of the HMS FMP.

Comment 5: NMFS should interpret ICCAT's recommendations in a manner similar to the way other countries implement those recommendations. If underharvests are being carried over by other countries, NMFS should also utilize such a process to benefit U.S. fishermen.

Response: ICCAT authorizes quota to be carried over for North Atlantic swordfish, but fails to mention any authorization with respect to carryover of South Atlantic swordfish. NMFS does not believe this to be an oversight and therefore interprets the recommendation as stated: no carry over of unused South Atlantic swordfish quota.

Comment 6: NMFS should clarify that U.S. fishermen may land their catch in foreign ports and that these landings will be counted against the U.S. quota.

Response: As required by ATCA, U.S. fishermen on U.S. vessels that offload in foreign ports will have their landings count against the U.S. quota. NMFS adds that fishermen, regardless of port of offloading must complete all logbooks within 48 hours of completing that day's activities and, for a 1-day trip, before offloading. The owner or operator of the vessel must submit the logbooks to NMFS within 7 days of offloading, 50 CFR 635.5(a)(1). Further, NMFS reminds fishermen that all swordfish, sharks, and tunas must be sold to a U.S.-permitted dealer, 50 CFR 635.31(d)(1), who is also required to report purchases from U.S. vessels on a regular basis, 50 CFR 635.5(b)(1).

Comment 7: NMFS should clarify that vessels fishing under charter/contract for another nation's quota must adhere to the contract nation's regulations.

Response: U.S.-flagged vessels must comply with all U.S. regulations wherever they fish. Vessels under contract may apply for an exempted fishing permit if they provide NMFS with information regarding specific regulations from which they would like to be exempt. NMFS will consider submitted information and issue exempted fishing permits on a case-by-case basis. NMFS cannot exempt U.S. vessels from regulations which may be inconsistent with U.S. fishery management goals.

Comment 8: One commenter strongly opposes the measure to authorize fishing areas at this time. There is concern that this action is not recommended by ICCAT.

Response: This regulation serves to clarify the existing regulations concerning U.S. vessels targeting eastern stock bluefin tuna. In the proposed rule, NOAA Fisheries proposed to prohibit retention of bluefin tuna caught in the east Atlantic Ocean because the United States has not been allocated quota for bluefin tuna in that area. However, the United States has been allocated quota for North Atlantic swordfish and bluefin tuna are caught incidentally to swordfish fishing. A retention prohibition for bluefin tuna from the east Atlantic Ocean would likely result in increased dead discards of bluefin tuna caught by U.S. vessels fishing for North Atlantic swordfish, inconsistent with HMS FMP objectives. Accordingly, NOAA Fisheries has modified the final rule to clarify allowable fishing areas for highly migratory species (HMS) fisheries by prohibiting bluefin tuna fishing in the Mediterranean Sea by U.S. vessels, consistent with the ICCAT agreement to prevent transfer of fishing effort for bluefin tuna from the west Atlantic to the east Atlantic. NOAA Fisheries will count all bluefin tuna caught incidentally to swordfish fishing in the east Atlantic against the west Atlantic U.S. bluefin tuna quota to ensure that those catches are monitored and appropriately accounted for. Furthermore, bycatch in the east Atlantic bluefin tuna fishery may be discussed at ICCAT in 2002.

Comment 9: NMFS should alter the method by which landings and discards of bluefin tuna are submitted to ICCAT. These data should accurately report landings of east Atlantic bluefin tuna to ICCAT which would reflect historical participation in the fishery. This would allow for the United States to enter into quota negotiations.

Response: NMFS intends to evaluate the catch locations of bluefin tuna landings in order to revisit the procedure by which these data are submitted to ICCAT.

Comment 10: NMFS needs to report U.S. historic catches of eastern bluefin, bigeye, yellowfin and albacore tunas and sharks to ICCAT. Reporting forms need to be revised to specify eastern versus western bluefin tuna and to include more space for recording latitude and longitude.

Response: NMFS will examine the reporting forms and suggest alternatives as deemed necessary.

Comment 11: NMFS should extend the documentation program to include yellowfin tuna and should unilaterally prohibit the importation of HMS that is non-compliant with ICCAT recommendations.

Response: NMFS would propose extending statistical documentation requirements to bigeye tuna, yellowfin tuna, and swordfish if ICCAT recommends such a program. In 2001, ICCAT issued a recommendation requiring the implementation of the bigeye tuna statistical document program and NMFS is currently working on implementing it.

Comment 12: No action should be taken to implement the temporary U.S. share allocated by ICCAT for North Atlantic albacore.

Response: NMFS agrees and is not changing the regulations regarding this topic.

This final rule contains several changes from the November 15, 2001, proposed rule (66 FR 57409) regarding the authorized fishing areas. To discourage unauthorized fishing, while trying to minimize dead discards, the proposed prohibition on the retention of bluefin tuna from the east Atlantic Ocean has been modified to prohibit the retention of bluefin tuna from the Mediterranean Sea. This modification is consistent with ICCAT agreements to prevent transfer of fishing effort for bluefin tuna from the west Atlantic to the east Atlantic, and vice versa, and is consistent with HMS FMP objectives to reduce dead discards of bluefin tuna. In addition, based on the 2002 ICCAT meeting, ICCAT recommended that the ban on imports of bigeye tuna from Honduras be lifted. Pending a review of the 2002 ICCAT recommendations and an assessment of the need for further rulemaking, NOAA Fisheries is not finalizing the trade sanctions with regards to Honduras that had been included in the proposed rule. The regulatory text of the final rule has been modified to reflect this decision. Other minor editorial changes to the regulatory text were also made to ensure consistency with existing regulations.

This final rule is published under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. , and ATCA, 16 U.S.C. 971 et seq. The Assistant Administrator for Fisheries, NOAA, has determined that the regulations contained in this final rule are necessary to implement the recommendations of ICCAT and to manage the domestic Atlantic HMS fisheries. The objective of this final rule is to improve conservation and management of Atlantic swordfish and tunas. Under 5 U.S.C. 553(d), the regulations promulgated by this final rule will enter into effect not less than 30 days after its publication date.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

On September 7, 2000, NMFS reinitiated formal consultation for all HMS commercial fisheries under section 7 of the Endangered Species Act. A new Biological Opinion (BiOp) was issued on June 14, 2001, which found that the continued existence of the HMS pelagic longline fishery jeopardizes the continued existence of loggerhead and leatherback sea turtles. On July 9, 2002, NMFS promulgated a final rule (67 FR 45393) that implemented the measures required by the BiOp for the pelagic and bottom longline and shark gillnet fisheries. These regulations are necessary to alleviate the jeopardy situation for HMS fisheries. No irreversible or irretrievable commitments of resources are expected from this final action as the measures implemented by this final rule are not expected to alter fishery interactions with endangered species.

NMFS has determined that these regulations will be implemented in a manner consistent to the maximum extent practicable with the enforceable policies of those coastal states in the Atlantic, Gulf of Mexico, and Caribbean that have approved coastal zone management programs. All of the states that replied to the letter regarding compliance of the proposed rule with the Coastal Zone Management Act found NMFS' proposed actions to be consistent with their coastal zone management programs. NMFS presumes that the remaining states that did not respond also concur.

NMFS has prepared a regulatory impact review that examines the impacts of the selected alternatives, discussed previously in this rulemaking. The preparation of an initial regulatory flexibility analysis was not required as the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Association that this rule would not have a significant economic impact on a substantial number of small entities. During the proposed rule stage of this rulemaking, NMFS received no comments regarding the economic impact of this rule. As a result a Final Regulatory Flexibility Analysis was not prepared. The commercial fishery is composed of fishermen who hold a swordfish directed, incidental, or handgear permit and the related industries including processors, bait houses, and equipment suppliers, all of which NMFS considers to be small entities. In October 2001, there were approximately 208 fishermen with a directed swordfish limited access permit, 112 fishermen with an incidental swordfish limited access permit, and 100 fishermen with a handgear limited access permit for swordfish. The formation of a reserve quota category for the North Atlantic swordfish fishery will not have any impact on the amount of fish that can be harvested by U.S. swordfish fishermen. When NMFS makes the one-time transfer of 400 mt (300.8 mt dw) of previously unused swordfish quota to this category, it is not expected to have an impact on U.S. fishermen considering the amounts of recent quota underages, the impacts of recent management actions, and the recent levels of effort present in this fishery. The 400 mt (300.8 mt dw) of swordfish would have a value of $2.3 million if it was caught by U.S. fishermen; however, the quota has no value to fishermen until the swordfish are landed and sold. As previously mentioned, it is unlikely given the current level of effort that the amount to be transferred will be caught now or in the near future by U.S. fishermen. Thus, the current economic impact of establishing a reserve quota category is negligible. The other regulations promulgated by this rule to maintain existing quotas, reinstate or clarify previous regulations, and improve trade monitoring also will have no significant impacts on U.S. fishermen.

Regulations governing the spiny dogfish fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota, which is allocated into two quota periods based upon percentages of the annual quota. The commercial quota is distributed to the coastal states from Maine through Florida as described in § 648.230.

The initial total commercial quota for spiny dogfish for the 2002 fishing year was 4,000,000 lb (1,814 mt) (67 FR 30614, May 7, 2002). The commercial quota is allocated into two periods (May 1 through October 31, and November 1 through April 30), with trip limits intended to preclude directed fishing. Quota period 1 was allocated 2,316,000 lb (1,050 mt) and quota period 2 was allocated 1,684,000 lb (764 mt) of the commercial quota, respectively. The total quota cannot be exceeded, so landings in excess of the amount allocated to quota period 1 have the effect of reducing the quota available to the fishery during quota period 2.

The Administrator, Northeast Region, NMFS (Regional Administrator) monitors the commercial spiny dogfish quota for each quota period and, based upon dealer reports, state data and other available information, determines when the total commercial quota has been harvested. NMFS is required to publish a notification in the Federal Register advising and notifying commercial vessels and dealer permit holders that, effective upon a specific date, the spiny dogfish commercial quota has been harvested and no commercial quota is available for landing spiny dogfish for the remainder of a given quota period. The Regional Administrator has determined, based upon dealer reports and other available information, that the 2002 annual commercial quota for spiny dogfish has been harvested.

Section 648.4(b) provides that Federal spiny dogfish permit holders agree, as a condition of the permit, not to land spiny dogfish in any state after NMFS has published notification in the Federal Register that the commercial quota has been harvested and that no commercial quota for the spiny dogfish fishery is available. Therefore, effective 0001 hrs local time, November 21, 2002, landings of spiny dogfish in coastal states from Maine seb 29355 through Florida by vessels holding commercial Federal fisheries permits are prohibited through April 30, 2003, 2400 hrs local time. The fishing year 2003 quota for quota period 1 will be available for commercial spiny dogfish harvest on May 1, 2003. Effective November 21, 2002, through April 30, 2003, federally permitted dealers are also advised that they may not purchase spiny dogfish from vessels issued Federal spiny dogfish permits that land in coastal states from Maine through Florida.

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