The Agricultural Marketing Act (AMA) of 1946 (7 U.S.C. 1621 et seq. ) authorizes official voluntary grading and certification on a user-fee basis of eggs, poultry, and rabbits. The AMA provides that reasonable fees be collected from users of the program services to cover, as nearly as practicable, the costs of services rendered.

The AMS regularly reviews these programs to determine if fees are adequate and if costs are reasonable. This rule will amend the schedule for fees and charges for grading services rendered to the egg, poultry, and rabbit industries to reflect the costs currently associated with them.

A recent review of the current fee schedule, effective January 1, 2002, revealed that anticipated revenue would not adequately cover increasing program costs. Costs in FY 2003 are projected at $27.2 million. Without a fee increase, FY 2003 revenues are projected at $26.0 million and trust fund balances would be $15.2 million. With a fee increase, FY 2003 revenues are projected at $27.2 million and trust fund balances would remain at $16.4 million.

Employee salaries and benefits account for approximately 82 percent of the total operating budget. The last general and locality salary increase for Federal employees became effective on January 1, 2002 and it materially affected program costs. Projected cost estimates for that increase were based on a salary increase of 3.6 percent, however, the increase was actually 4.52 to 5.42 percent, depending on locality. Another general and locality salary increase estimated at 2.6 percent is expected in January 2003. Also, from October 2001 through September 2003, salaries and fringe benefits of federally-licensed State employees will have increased by about 6 percent.

The impact of these cost increases was determined for resident, nonresident, and fee services. To offset projected cost increases, the hourly resident and nonresident rate will be increased by approximately 5.8 percent and the fee rate will be increased by approximately 6 percent. The hourly rate for resident and nonresident service covers graders' salaries and benefits. The hourly rate for fee service covers graders' salaries and benefits, plus the cost of travel and supervision.

Administrative charges that cover the cost of supervision for resident poultry and shell egg grading will also be increased as shown in the table below. Administrative charges for resident rabbit grading and nonresident services will not be changed.

The following table compares current fees and charges with proposed fees and charges for egg, poultry, and rabbit grading as found in 7 CFR parts 56 and 70:

Based on the analysis of costs to provide these services, a proposed rule to increase the fees for these services was published in the Federal Register (67 FR 48816) on July 26, 2002. Comments on the proposed rule were solicited from interested parties until August 26. No comments were received. The Agency will implement these increases, as proposed, to ensure the financial stability of its grading programs.

This action has been determined to be not significant for purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget (OMB).

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA)(5 U.S.C. 601 et seq. ), the AMS has considered the economic impact of this action on small entities. It is determined that its provisions will not have a significant economic impact on a substantial number of small entities.

There are about 400 users of Poultry Programs' grading services. These official plants can pack eggs, poultry, and rabbits in packages bearing the USDA grade shield when AMS graders are present to certify that the products meet the grade requirements as labeled. Many of these users are small entities under the criteria established by the Small Business Administration (13 CFR 121.201). These entities are under no obligation to use grading services as authorized under the Agricultural Marketing Act of 1946.

The AMS regularly reviews its user fee financed programs to determine if fees are adequate and if costs are reasonable. A recent review determined that the existing fee schedule, effective January 1, 2002, will not generate sufficient revenues to cover program costs while maintaining an adequate reserve balance in FY 2003. Costs in FY 2003 are projected at $27.2 million. Without a fee increase, FY 2003 revenues are projected at $26.0 million and trust fund balances would be $15.2 million. With a fee increase, FY 2003 revenues are projected at $27.2 million and trust fund balances would remain at $16.4 million.

This action will raise the fees charged to users of grading services. The AMS estimates that overall, this rule would yield an additional $1.2 million during FY 2003. The hourly rate for resident and nonresident service will increase by approximately 5.8 percent and the fee rate will increase by approximately 6 percent. The impact of these rate changes in a poultry plant will range from less than 0.007 to 0.037 cents per pound of poultry handled. In a shell egg plant, the range will be less than 0.021 to 0.036 cents per dozen eggs handled.

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

The information collection requirements that appear in the sections to be amended by this action have been previously approved by OMB and assigned OMB Control Numbers under the Paperwork Reduction Act (44 U.S.C. Chapter 35) as follows: § 56.52(a)(4)—No. 0581-0128; and § 70.77(a)(4)—No. 0581-0127.

Pursuant to 5 U.S.C. 553, it is found and determined that good cause exists for not postponing the effective date of this action until 30 days after publication in the Federal Register . The revised fees need to be implemented on an expedite basis in order to avoid further financial losses in the grading program. The effective date of the fee increase will be set to coincide with the billing cycle that begins on the first day of the first month after date of publication in the Federal Register .

On November 6, 2000, the President signed Public Law 106-429, the Foreign Operations Appropriations Act of 2001. Section 586 of Public Law 106-429, 8 U.S.C. 1255 note, provides for adjustment of status to that of lawful permanent resident for 5,000 eligible natives or citizens of Vietnam, Cambodia, and Laos.

This final rule establishes the eligibility requirements for adjustment of status under section 586 of Public Law 106-429. To be eligible, an alien must demonstrate that he or she:

(1) Is a citizen or native of Vietnam, Cambodia, or Laos;

(2) Was inspected and paroled into the United States before October 1, 1997;

(3) Was physically present in the United States prior to and on October 1, 1997;

(4) Was paroled into the United States:

(a) From Vietnam under the auspices of the Orderly Departure Program;

(b) From a refugee camp in East Asia; or

(c) From a displaced persons camp administered by the United Nations High Commissioner for Refugees in Thailand;

(5) Applied for adjustment of status under section 586 of Public Law 106-429 during the period beginning on January 27, 2003 and ending on January 25, 2006, and paid all appropriate fees; and

(6) Is otherwise eligible to receive an immigrant visa and otherwise admissible to the United States for permanent residence except for those grounds of inadmissibility that do not apply or that are waived.

The preamble to this final rule discusses issues raised in the public comment letters submitted regarding the proposed regulation, published at 67 FR 45402 (July 9, 2002). This rule makes several changes to the regulation in response to those comments, as discussed below. Finally, this rule provides instructions for aliens seeking to apply for adjustment of status under section 586 and marks the start and end dates for the three-year application period.

The proposed regulation set forth a 60-day period, from July 9, 2002, until September 9, 2002, for any interested member of the public to submit comments on the proposed regulation. The Department of Justice (“Department”) received seven letters, raising a total of 23 distinct issues. These comments are discussed below and are generally divided into three sections: comments concerning eligibility and evidence for adjustment of status under section 586, comments regarding the physical presence section, and comments regarding standards for granting a waiver under section 212(h) of the Immigration and Nationality Act (“Act”) (8 U.S.C. 1182(h)).

Commenters raised two issues about the 5,000 limit on adjustments under section 586. First, two commenters requested that the Department acknowledge the stated intention of Congress to consider raising the total number of adjustments provided for in section 586. Second, one commenter went further to state that the Department should retain applications received after the 5,000-adjustment limit has been reached, pending the Congressional action to raise the limit.

In response to the first issue, the Department acknowledges that the legislative history contains references to Congress's intention to consider expanding the 5,000-adjustment cap, if necessary, to accommodate otherwise eligible aliens, through future legislation. See H.R. Conf. Rep. 106-997, at 106 (2000). Indeed, throughout the legislative process and subsequent rulemaking process, non-governmental organizations involved with the potentially eligible groups have stated that the total number of aliens who would be eligible for adjustment of status under section 586 far exceeds 5,000.

Notwithstanding the possibility that Congress might change the law in the future, however, the Department is responsible for implementing the law as currently written. This means the Department will track the total number of adjustments and stop adjudicating applications after the 5,000 limit has been reached. At that time, the Department will also notify Congress and the public that the limit has been reached. If the limit is raised or removed through future legislation, the Department will process applications accordingly.

In response to the second issue, the Department does not plan to keep those applications submitted after the 5,000 limit has been reached. The expense of submitting an application to adjust status under this provision is significant, currently $305, including fingerprint fees. If employment authorization and advance parole applications are also submitted, that figure grows to $535. The Department believes that it is not in the applicants' interests for the Department to retain such large sums of their money for an indefinite period of time based on the possibility of future legislation. Rather, it is better to return such applications and the accompanying fees and allow the same applicants the opportunity to apply again if the limit is expanded.

However, for purposes of processing applications if the 5,000 limit is expanded or eliminated, the Department will keep chronological records of those applicants who submitted timely applications but did not obtain a space within the 5,000 limit. In addition to keeping such records, the Department will issue a dated notice to the applicant along with the returned application. Aliens are encouraged to retain their application package and this notice in case in the 5,000 limit is expanded or eliminated.

Nevertheless, if at the time the 5,000 limit is reached it appears that Congress is about to pass legislation to expand or eliminate the cap, the Department will use its discretion to decide whether or not to keep such applications and the related fees. This final rule adds a new 8 CFR 245.21(m)(4) to reflect this policy.

The Department received three comments that the processing scheme set forth in the proposed rule should be changed. The commenters stated that applicants who have applied for a waiver of a criminal ground of inadmissibility should be given the same processing priority as those who do not require such a waiver.

The Department does not agree with these comments. These regulations provide some priority to those applicants who do not require a waiver of the criminal, fraud, immigration violator, citizenship ineligibility, or illegal voting grounds of inadmissibility, over those who do. See 8 CFR 245.21(m)(3). For purposes of receiving a number in the queue, applications for waivers on other grounds of inadmissibility will be considered as if they were applications for adjustment not requiring waivers. For instance, applicants for a waiver of a ground of inadmissibility on health-related grounds (section 212(a)(1) of the Act, 8 U.S.C. 1182(a)(1)) will receive a number in the queue as if they were not applying for a waiver. Essentially, the first group—those applicants who do not require a waiver of the criminal, fraud, immigration violator, citizenship ineligibility, or illegal voting grounds of inadmissibility—will be assigned a number chronologically by date of application relative to the 5,000 limit. The second group will be assigned a number chronologically by date of the waiver approval.

The Department anticipates that an adjudication involving the waiver will take longer than an adjudication not involving a waiver, and therefore, the Department does not want to slow down the adjudication process by giving out numbers to aliens who are not yet eligible to receive adjustment of status. It is correct that those applicants requiring a waiver will face a disadvantage. In the proposed rule, the Department stated that in setting forth this processing hierarchy the Department was of the view that those aliens who have not engaged in the aforementioned activities, and thereby rendered themselves inadmissible, should be treated more favorably than those who have engaged in such behavior. The Department continues to be of this view, and as such, will not be amending the regulations to reflect these three comments.

The Department received two comments stating that immigration judges should have the authority to consider applications for adjustment of status under section 586 during immigration proceedings.

The Department believes that the adjudication of applications for adjustment of status under section 586 is best administered by the Immigration and Naturalization Service (“Service”) in one central location. Moreover, maintaining control of the 5,000 limit on adjustments is most efficiently accomplished by centralizing filing and adjudication. Because verification of an applicant's claim to eligibility under section 586 will most likely require significant research by the Service, the Department believes that centralizing the application and adjudication at one Service office will provide the most efficient service to applicants. As such, the Department will not amend the regulations to reflect these comments.

Additionally, one commenter objected to the requirement that the Service concur before an immigration judge or the Board of Immigration Appeals (“BIA”) administratively closes the proceedings. The commenter argued that an eligible alien could be prevented from obtaining benefits under section 586 if the Service failed to join in the motion. The commenter stated that eliminating the Service consent requirement is necessary to ensure that meritorious cases will not be denied consideration where the Service does not concur with the motions to close cases. The Department disagrees with these comments. Administrative closure of a case is used to remove temporarily a case from an immigration judge's calendar or from the BIA's docket. As a general matter, “[a] case may not be administratively closed if opposed by either of the parties.” Matter of Gutierrez-Lopez, 21 I. & N. Dec. 479, 480 (BIA 1996). Efficiency of the immigration court system is increased by requiring parties to agree to close a case administratively. The Service, which will adjudicate applications for adjustment of status under this regulation, will likely concur in administrative closure if it believes the alien is eligible for the relief sought. If the alien has other issues to resolve before an immigration judge, having the case go forward allows those issues to be resolved at the same time the Service adjudicates the alien's application to adjust status under section 586. Completing concurrently as many processes as possible adds to efficiency of the immigration court system.

The Department does not believe that the regulations will prevent any alien's application for adjustment of status under section 586 from being considered. The regulations provide that an alien in immigration proceedings may apply directly to the Service for adjustment of status independent of his or her proceedings. The Service may adjudicate such an application without resolution of the proceedings. Moreover, the Department points to the distinction between the administrative proceedings resulting in an order of removal of an alien and the actual removal of the alien. In the unlikely scenario where the Service does not concur with the alien's motion for administrative closure, even though the alien appears eligible for adjustment under section 586, and where the alien is ultimately issued a removal order, the Service has discretion to withhold the removal of the alien until the adjustment application is resolved. The alien would have to make such a request to the district director after the order is issued. The Department notes that the granting of adjustment under section 586 is tantamount to reopening and vacating any order of removal issued. This final regulation will not be amended in response to these comments.

One commenter requested that the final rule be amended to allow for the adjustment of derivative family members.

The Department cannot accommodate the commenter's request. The proposed regulations do not include a provision for the adjustment of derivative family members of eligible aliens because the statutory language of section 586 does not include such a provision. Rather, every alien has to be eligible on his or her own behalf. The Department notes that the Act does provide a process, albeit a lengthier one, for dependent family members of lawful permanent residents to obtain permanent resident status. Once his or her adjustment of status application is approved, the new lawful permanent resident can submit Form I-130, Petition for Alien Relative, for a dependent spouse and unmarried children.

The Department received two comments requesting that the final rule be clarified regarding travel by eligible aliens that took place after October 1, 1997. In short, the commenters requested that the final rule state that otherwise eligible aliens who left the United States after initially entering prior to October 1, 1997, via one of the three qualifying programs, are not rendered ineligible by virtue of that subsequent travel.

The Department agrees with the commenters that travel subsequent to October 1, 1997, does not render an alien ineligible for adjustment of status under section 586. The commenters expressed the concern that, because such aliens will have a Form I-94, Arrival/Departure Document, that is dated after October 1, 1997, the adjustment application will be denied because they will not have proof of entry prior to October 1, 1997. The Department understands that such aliens could have traveled and re-entered the United States via parole or another lawful manner of entry. In these instances, although the alien may no longer possess the documentation of the original entry, evidence of the initial entry may be available in Department records, and therefore could be verified during adjudication. This final rule, at 8 CFR 245.21(g)(3), provides for such an alien to submit an affidavit, in lieu of the initial Form I-94, establishing that he or she entered prior to October 1, 1997, via one of the three qualifying programs.

The Department received one comment requesting that the final rule clarify that aliens who entered the United States via humanitarian parole (rather than public interest parole) are eligible for adjustment of status under section 586.

The Department agrees with the commenter. Section 586 requires only that the applicant be paroled into the United States via one of the three qualifying programs. While the Department believes the vast majority of the potential beneficiaries of section 586 were granted public interest parole, some potential beneficiaries were granted humanitarian parole. Such aliens, if otherwise qualified, are eligible for adjustment of status under section 586. This statement is consistent with the proposed regulations at 8 CFR 245.21(a)(2). Therefore, the Department has not amended the final regulations.

One commenter requested that the Department remove the medical examination requirement for adjustment under section 586 in the final regulations. The commenter stated that the examinations are expensive and unnecessary because the aliens have resided in the United States for a long period of time.

The Department believes that the medical examination requirement is not an unusual or unduly burdensome requirement and has decided to retain the examination requirement in the final regulations. Medical examinations are necessary for the applicant to demonstrate that he or she is not inadmissible under section 212(a)(1) of the Act (8 U.S.C. 1182(a)(1)). The fact that aliens have been living in the United States for a long period of time does not change this requirement. Department regulations require the vast majority of adjustment applicants to undergo a medical examination, regardless of the number of years they have spent in the United States. For example, all applicants adjusting status under section 245(a) of the Act (8 U.S.C. 1255(a)) must undergo a medical examination despite the fact that many such applicants have been residing in the United States in nonimmigrant status for several years.

The Department received one comment requesting that a list of all persons who entered the United States under the auspices of the ODP be made public.

While the Department understands the potential utility of this request, the Department does not disclose such lists of individuals who are potentially eligible for immigration benefits. Although The Privacy Act of 1974, as amended, does not cover non-resident aliens (under 5 U.S.C. 552a(a)(2), the term “individual” means a citizen of the United States or an alien lawfully admitted for permanent residence), Department policy generally forbids the release of personal information regarding groups of individuals. Individuals who wish to obtain proof that they entered the United States via the ODP may so state as part of their application for adjustment of status under section 586, or make a request for the information via the Freedom of Information Act (FOIA). As stated in the proposed rule, the Department likely can verify an alien's assertion that he or she entered via the ODP.

The Department received one comment regarding the use of an alien's IV tracking number to demonstrate that he or she was processed through the ODP. The commenter stated that in some cases, the alien will not have a unique identifying IV number, but rather a V number, or an alien registration number.

Aliens processed through the ODP were assigned both IV and V numbers. The IV number was assigned to an alien, and any accompanying family members, at his or her initial registration with the United States Government. Later, a V number was assigned to the alien, and accompanying family members, if he or she was scheduled to depart the program and enter the United States. Finally, some of those aliens granted humanitarian parole in place of public interest parole received alien registration numbers as well. The Department regulations require only that the applicant demonstrate that he or she was processed via the ODP or one of the other two programs. As stated previously, subject to verification by the Department, those aliens who were processed via the ODP who no longer have any paperwork from the ODP may submit an affidavit to the Department in lieu of the actual documentation. See 8 CFR 245.21(g)(3).

The Department received one comment stating that the final rule should indicate that applicants for adjustment of status under section 586 are not required to answer question number two on part three of Form I-485, regarding an applicant's use of public assistance. The commenter stated that applicants for adjustment of status under section 586 are exempt from the public charge ground of inadmissibility at section 212(a)(4) of the Act (8 U.S.C. 1182(a)(4)), and so the question is unnecessary.

The Department agrees with this comment and has stated in the proposed rule and will state in policy memoranda that applicants for adjustment of status under section 586 are exempt from section 212(a)(4) of the Act. As such, the commenter is correct in that an answer of “yes” to the specified question cannot result in the denial of the application because the alien is inadmissible under section 212(a)(4) of the Act. However, there are some scenarios where the answer to this question may indirectly affect the adjudication in ways other than inadmissibility under section 212(a)(4) of the Act, such as when certain types of immigration benefit fraud are suspected. Therefore, full and complete answers to each question on Form I-485, including this question, are required. Another reason for retaining the question on the form is that the Form I-485 remains the same for all adjustment programs. The Department does not create a new form each time Congress creates a new adjustment program. As such, the Department does not want to issue separate instructions for adjustment under section 586. The Department has retained this question on the form.

One commenter requested that the Department provide all applicants with employment authorization documents at no charge at the time they submit their applications for adjustment. The commenter also stated that the final regulations should make it clear that the applicants who do not desire employment authorization do not need to submit the application for employment authorization along with the application for adjustment of status.

Although as the commenter has stated, many eligible aliens already have employment authorization issued under other provisions of law and thus do not need employment authorization, the proposed regulation provides a means for an alien who desires employment authorization to obtain it. If an alien believes he or she cannot pay the application fee (currently $120), he or she can request a fee waiver when submitting the application. Thus, the Department has retained in the final rule the requirement that those aliens desiring employment authorization file an application for employment authorization and submit the accompanying fee. Another commenter requested that the Department regulations make the adjudication of an application for employment authorization based upon a section 586 adjustment application subject to the 90-day adjudication provision of 8 CFR 274a.13(d). Under these regulations, that is currently the case. With certain exceptions, any application for employment authorization based upon an adjustment application filed under 8 CFR part 245—including 8 CFR 245.21 pertaining to adjustment for certain aliens from Vietnam, Cambodia, and Laos—is subject to the 90-day provision of 8 CFR 274a.13(d) per the regulations. See 8 CFR 274a.12(c)(9); 8 CFR 274a.13(d). The current regulations do require that a section 586-based application for employment authorization be adjudicated within 90 days or interim employment authorization must be issued.

Three commenters raised the issue of advance parole. They requested that the final rule state that the eligibility criteria for obtaining advance parole based on a pending application for adjustment filed under section 586 is the same as the advance parole criteria for adjustment applicants under section 245(a) of the Act (8 U.S.C. 1255). Section 245(a) applicants are generally granted advance parole, in the discretion of the Service, if they have demonstrated “any bona fide business or personal reason.” See instructions to Form I-131, Application for Travel Document. Without such a standard, one commenter suggests that the different Service offices will apply varying eligibility standards. The Department does not believe that it needs to articulate such a standard in the regulation. The standard for obtaining advance parole is the same for those obtaining it in connection with an adjustment application filed under section 586 as for those obtaining advance parole in connection with other adjustment programs; the Form I-131 is the same for each program.

The Department's proposed regulations provided the alien with the ability to obtain advance parole, in the discretion of the Service, based on a pending adjustment application under section 586. See section 245.21(i) of the proposed regulations. When these final regulations are effective, the Department will issue guidance to its field officers covering all aspects of this adjustment program, including advance parole. The Department believes this will ensure consistent treatment of applications for advance parole based upon a proper filing for adjustment under section 586.

For those with final orders of removal or more than 180 days of unlawful presence in the United States, the ground of inadmissibility under section 212(a)(9) of the Act (8 U.S.C. 1182(a)(9)) would not bar adjustment under this rule. However, applicants should keep in mind that, should their section 586 application be denied, departure from the United States may amount to a self-deportation, in which case, absent a waiver, they would be inadmissible under section 212(a)(9) of the Act for either three or 10 years. In addition, in the case of an applicant over 18 years of age who has accrued more than 180 days of unlawful presence in the United States, such departure would render the alien inadmissible under section 212(a)(9)(B) of the Act (8 U.S.C. 1182(a)(9)(B)).

One commenter requested that the Department conduct an outreach program in the native languages of the potential beneficiaries to ensure that those potential beneficiaries with limited English proficiency are aware of the opportunity to adjust status under section 586.

The Department agrees that it is important that all potentially eligible aliens understand the benefits provided under section 586 as well as the eligibility criteria set forth by this provision. Normally, when the Department announces the beginning of such an adjustment program, the Department develops materials explaining the program, the eligibility criteria, the application procedures, and other pertinent issues. This material is distributed to local, national, and other interested media outlets, and also to non-governmental and community-based organizations. By their very nature, these groups are best suited to provide news and information to specific communities. The section 586 adjustment program will be no exception to this general practice.

The Department received one comment that the creation of a single section in the regulations regarding the demonstration of physical presence for adjustment applicants who need to demonstrate physical presence in the United States on a specific date should be accomplished via a separate rulemaking.

The Department disagrees with the comment that a separate rule is necessary to create a single section in the regulations regarding the demonstration of physical presence on a specific date. As stated in the proposed rule, Department regulations already contain several similar sections for various adjustment of status provisions containing more or less the same physical presence standards. Rather than continue to create redundant regulations, the Department believes that it is appropriate at this time to bring the provisions together into one single section of the regulations. Because the applicants for section 586 need to demonstrate that they were physically present in the United States on October 1, 1997, and because the physical presence part of the rulemaking is largely non-substantive and re-organizational in nature, it is an appropriate part of this larger rulemaking.

The proposed regulations contained a separate section regarding the waiver provisions of section 212(h) of the Act (8 U.S.C. 1182(h)). The Department received one comment that the proposed regulations regarding the waiver provisions of section 212(h) of the Act (8 U.S.C. 1182(h)) should be promulgated in a rule separate from the section 586 rule. The Department agrees with this comment and is publishing two separate rules instead of one. An interim final rule regarding waivers under section 212(h) of the Act is published elsewhere in this issue of the Federal Register .

Yes. Applicants must demonstrate that they are admissible as an immigrant to obtain benefits under section 586, just as they would have to do under other adjustment programs. Although section 586(c) provides that four grounds of inadmissibility do not apply, and provides special rules for waivers of several other grounds, section 586 does not mention the availability of waivers for criminal aliens. Even so, the Department has determined that criminal aliens who are inadmissible under section 212(a)(2) of the Act may apply for a waiver under section 212(h) of the Act. The Department is aware that many aliens who might otherwise be eligible under section 586 are inadmissible on criminal grounds. The Attorney General has determined to exercise the discretion accorded to him under section 212(h) in connection with applicants under section 586. Because section 212(h) is a general provision applicable to waivers for immigrants, it is appropriate to adopt standards for the exercise of discretion in all cases under section 212(h), rather than creating a new standard applicable only to the Indochinese population covered by section 586. Accordingly, the Department is publishing a separate interim rule (published elsewhere in this issue of the Federal Register ) with regard to the Attorney General's authority under section 212(h) of the Act to grant waivers of inadmissibility to criminal aliens.

The three-year period for submitting applications for adjustment of status under section 586 begins January 27, 2003 and ends January 25, 2006. See 8 CFR 245.21(b)(1). As stated previously, if the 5,000-adjustment limit is reached prior to the end of the application period, the Department will notify Congress and the public of that fact. If the limit is not reached by the end of the three-year application period, only those applications received by the Department on or prior to, or containing a postmark dated on or prior to January 25, 2006 will be accepted for processing.

Applications for adjustment of status under section 586 should be sent to the following address: INS Nebraska Service Center, P.O. Box 87485, Lincoln, NE 68501-7485.

The regulations at 8 CFR 245.21(b)(2) state what constitutes a proper application under section 586. An alien must be physically present in the United States to apply for adjustment of status under section 586. An applicant must submit Form I-485, Application to Register Permanent Residence or Adjust Status, along with the appropriate application fee contained in 8 CFR 103.7(b)(1). Applicants who are 14 through 79 years of age must also submit the fingerprinting service fee provided for in 8 CFR 103.7(b)(1). Each application filed must be accompanied by evidence establishing eligibility as provided in 8 CFR 245.21(g); two photographs as described in the Form I-485 instructions; a completed Biographic Information Sheet (Form G-325A) if the applicant is between 14 and 79 years of age; a report of medical examination (Form I-693 and vaccination supplement) specified in 8 CFR 245.5; and, if needed, an application for waiver of inadmissibility. Under Part 2, question h of Form I-485, applicants must write “INDOCHINESE PAROLEE P.L. 106-429”.

The regulations at 8 CFR 245.21(c), (d), and (e), discuss the additional filing procedures for aliens in removal proceedings, aliens with final orders of removal, and aliens needing waivers of grounds of inadmissibility, respectively.

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule would affect certain individuals from Vietnam, Cambodia, and Laos by implementing the adjustment of status provisions of section 586 of Public Law 106-429. This rule will have no effect on small entities as that term is defined in 5 U.S.C. 601(6).

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

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule is considered by the Department of Justice, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget for review.

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

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

The information collection requirement (Form I-485) contained in this rule was previously approved for use by the Office of Management and Budget (OMB). The OMB control number for this information collection is 1115-0053. This final rule permits certain aliens from Vietnam, Cambodia, and Laos to adjust status. In addition to the evidence required by Form I-485, this rule at 8 CFR 245.21(g)(2) requires applicants to demonstrate that they were physically present in the United States on October 1, 1997, by supplying the evidence outlined in 8 CFR 245.22. This additional documentation is considered an information collection. Written comments are encouraged and will be accepted until February 24, 2003.

Accordingly, the Service has submitted an information collection request to the Office of Management and Budget (OMB) for emergency review and clearance in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). If granted, emergency approval is valid for 180 days.

All comments and suggestions, or questions regarding additional information, to include obtaining a copy of the proposed information collection instrument, shall be directed to the Immigration and Naturalization Service, Regulations and Forms Services Division, 425 I Street, NW, Room 4034, Washington, DC 20536; Attention: Richard A. Sloan, Director, (202) 514-3291.

Your comments should address one or more of the following four points:

(1) Evaluating whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluating the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

(3) Enhancing the quality, utility, and clarity of the information to be collected; and

(4) Minimizing the burden of the collection of the information on those who are to respond, including through the use of any and all appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. , permitting electronic submission of responses.

(1) Type of information collection: New.

(2) Title of Form/Collection: Application requirements for the adjustment of status under section 586 of Public Law 106-429.

(3) Agency form number, if any, and the applicable component of the Department of Justice sponsoring the collection: No form number (File No. OMB-27), Immigration and Naturalization Service.

(4) Affected public who will be asked or required to respond, as well as a brief abstract: Individuals. Section 586 of Public Law 106-429 allows certain aliens from Vietnam, Cambodia, and Laos to adjust status to lawful permanent resident. The information collection is necessary in order for the Service to make a determination that the eligibility requirements and conditions are met regarding the alien.

(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: 5,000 respondents at 30 minutes per response.

(6) An estimate of the total of public burden (in hours) associated with the collection: Approximately 2,500 burden hours.

On July 9, 2002, the Department of Justice published a proposed rule in the Federal Register at 67 FR 45402 to implement section 586 of Pub. L. 106-429, 8 U.S.C. 1255 note, and to amend the regulations concerning waivers of the criminal grounds of inadmissibility for immigrants, with a 60-day period for public comment. Section 586 provides for adjustment of status to that of lawful permanent resident for 5,000 eligible natives or citizens of Vietnam, Cambodia, and Laos who were paroled into the United States before October 1, 1997, and otherwise meet the standards of the law.

Many provisions of the proposed rule dealt with the process for eligible aliens to apply for adjustment of status under section 586, including the means for applicants to demonstrate that they were physically present in the United States on October 1, 1997. The Department is finalizing those provisions of that proposed rule in a separate rule published elsewhere in this issue of the Federal Register .

The procedures for implementing section 586 was not the only issue addressed in the proposed rule. In addition, the proposed rule addressed at some length the related issue of the standards for granting waivers of the criminal grounds of inadmissibility for immigrants under section 212(h) of the Immigration and Nationality Act (“Act”) (8 U.S.C. 1182(h)). See 67 FR at 45404, 45407.

Although section 586(c) provides that four grounds of inadmissibility do not apply, and provides special rules for waivers of several other grounds, section 586 does not mention the availability of waivers for criminal aliens. Even so, the Department has determined that criminal aliens who are inadmissible under section 212(a)(2) of the Act (8 U.S.C. 1182(a)(2)) may apply for a waiver under section 212(h) of the Act. The Department is aware that many aliens who might otherwise be eligible under section 586 are inadmissible on criminal grounds.

The Attorney General has determined to exercise the discretion accorded to him under section 212(h) of the Act in connection with applicants under section 586. Because section 212(h) of the Act is a general provision applicable to waivers for immigrants, it is appropriate to adopt standards for the exercise of discretion in all cases under section 212(h) of the Act, rather than creating a new standard applicable only to the Indochinese population covered by section 586. As was made clear in the title of the July 2002 proposed rule, and in the supplementary information for that rule as well as the proposed regulatory text, the proposed amendment to § 212.7(d), regarding the exercise of discretion under section 212(h) of the Act, was applicable to all aliens seeking waivers under the latter provision.

In response to the July 9, 2002, proposed rule, one commenter urged that the Department address the amendment to § 212.7(d) in a separate rule, because that regulatory change is applicable to all immigrants seeking a waiver of the criminal grounds of inadmissibility. The Department believes that this issue is linked to the implementation of the adjustment provisions in section 586 and that both changes need to be made at the same time. However, in addressing the two sets of issues, the Department has agreed to promulgate the amendment to § 212.7(d) in a separate, companion rulemaking. Although for administrative purposes this interim final rule has been assigned a different tracking number (RIN) than the July 9, 2002, proposed rule, this interim final rule is adopting in final form the proposed amendment to § 212.7(d) that was set forth in the July 2002 proposed rule. This rule will take effect 30 days after publication in the Federal Register . It is being issued as an interim rule for the purpose of soliciting additional public comment. After consideration of these additional public comments, the Department will publish a final rule.

In the final rule implementing section 586 (published elsewhere in this issue of the Federal Register ), the Department has responded to many of the public comments regarding the availability of waivers of inadmissibility to eligible Indochinese applicants for adjustment of status under section 586. The following discussion responds to the public comments that related specifically to the amendment to § 212.7(d) with respect to the Attorney General's exercise of discretion under section 212(h) of the Act to waive the criminal grounds of inadmissibility for any alien applying or reapplying for a visa, seeking admission to the United States, or seeking adjustment of status to that of an alien admitted for permanent residence.

Several commenters argued that the Attorney General does not have the authority to adopt the standard at 8 CFR 212.7(d) regarding waivers of the criminal grounds of inadmissibility under section 212(h) of the Act.

To the contrary, the Attorney General does have the authority to establish, by regulation, standards for the exercise of discretion under section 212(h) of the Act. Section 212(h)(1) of the Act requires a waiver applicant to establish, to the satisfaction of the Attorney General, one of the eligibility criteria set forth in that provision. Once the applicant has established his or her threshold eligibility, the Attorney General must then determine, under section 212(h)(2) of the Act, whether to grant the waiver. This determination is in the sole discretion of the Attorney General. Moreover, the Attorney General has the authority to decide when and how this discretion will be exercised. Section 212(h)(2) of the Act provides that the Attorney General may grant a waiver if he, “in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status.” 8 U.S.C. 1182(h)(2) (emphasis added).

This interim rule, at 8 CFR 212.7(d), sets forth a general rule for when the Attorney General will exercise his discretion pursuant to his authority under section 212(h)(2) of the Act. Except in extraordinary circumstances, the Attorney General will not exercise discretion in favor of an applicant where the application involves a violent or dangerous crime. Extraordinary circumstances include situations where the alien has established exceptional and extremely unusual hardship, or situations where there are overriding national security or foreign policy considerations. Moreover, depending on the nature and severity of the underlying offense that renders the applicant inadmissible, the Attorney General retains the discretion to determine that the mere existence of extraordinary circumstances is insufficient to warrant the grant of a waiver. This standard was set forth in Matter of Jean, 23 I. & N. Dec. 373 (A.G. 2002), in the context of a discretionary waiver under section 209(c) of the Act (8 U.S.C. 1159(c)) pertaining to refugees, and for applicants for asylum under section 208 of the Act (8 U.S.C. 1158).

With this interim rule, the Department is now codifying these same principles in connection with other aliens who seek discretionary relief under section 212(h) of the Act from the criminal grounds of inadmissibility. This interim rule extends the standard the Attorney General articulated in Matter of Jean and makes it applicable to criminal aliens applying or reapplying for a visa, seeking admission to the United States, or seeking adjustment of status. This action is in accord with the provisions of section 212(h)(2) of the Act, which provides that the Attorney General has authority by regulation to set standards for discretion for aliens seeking waivers for the criminal grounds of inadmissibility.

One of the threshold bases for establishing eligibility for a waiver under section 212(h) of the Act is to demonstrate “to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.” Section 212(h)(1)(B) (8 U.S.C. 1182(h)(1)(B)). Some commenters suggested that the language of the proposed rule in § 212.7(d) conflicts with the statutory standard of “extreme hardship” in section 212(h)(1)(B) of the Act.

The Department disagrees with this contention. The standard in 8 CFR 212.7(d) for the exercise of the Attorney General's discretion does not relate to the threshold eligibility requirement of “extreme hardship” in section 212(h)(1)(B) of the Act. Satisfying one of the statutory standards for determining an alien's threshold eligibility for seeking a waiver is only the first part of the waiver process. Even after the waiver applicant has met the required showing of “extreme hardship,” or one of the other threshold standards, the law also provides, in section 212(h)(2) of the Act, that the Attorney General has the discretion whether to grant affirmatively the requested relief to each alien. The regulation at 8 CFR 212.7(d) governs only the exercise of discretion under section 212(h)(2) of the Act, after the alien has met the threshold requirements of section 212(h)(1) of the Act.

Moreover, simply because an alien has established “extreme hardship” under section 212(h)(1)(B) of the Act, such a determination does not bind the Attorney General in exercising his discretion under section 212(h)(2) of the Act. See INS v. Yueh-Shaio Yang, 519 U.S. 26, 30-31 (1996) (in determining whether to waive deportation of aliens deportable for entry fraud, Attorney General could decide not to grant waiver because of the fraud, even though committing entry fraud made alien eligible for waiver; Attorney General could take such conduct into account when deciding whether or not to grant waiver because the statute “establishes only the alien's eligibility for the waiver. Such eligibility in no way limits the considerations that may guide the Attorney General in exercising her discretion to determine who, among those eligible, will be accorded grace.”) (emphasis in original).

The standard in 8 CFR 212.7(d) is also grounded in cases interpreting the Act. As discussed in the proposed rule, in assessing whether an applicant has met the burden that a waiver is warranted in the exercise of discretion, the adjudicator must balance adverse factors evidencing inadmissibility as a lawful permanent resident with the social and humane considerations presented to determine if the grant of relief appears to be in the best interests of the United States. Matter of Mendez-Moralez, 21 I. & N. Dec. 296 (BIA 1996) (involving a waiver under section 212(h)(1)(B) of the Act). Establishment of extreme hardship and eligibility for a waiver requiring a showing of such hardship does not create an entitlement to the relief sought. Id.; Matter of Cervantes-Gonzalez, 22 I. & N. Dec. 560 (BIA 1999). Extreme hardship, once established, is but one favorable discretionary factor to be considered. Id.; Matter of Mendez-Moralez, 21 I. & N. Dec. 296 (BIA 1996).

In view of these considerations, this rule will codify the regulations proposed at 8 CFR 212.7(d), with one technical amendment to conform the language more closely to the text of section 212(h)(2) of the Act.

The Department received three comments raising other issues relating to the Attorney General's discretion to grant waivers of criminal grounds of inadmissibility.

One commenter suggested that the final regulations clarify that the waiver referred to in the proposed rule 8 CFR 212.7(d) is available only to aliens who are applying to adjust status under section 209 of the Act (8 U.S.C. 1159). The commenter stated that clarification of this point is necessary in order to prevent adjustment applicants who are not refugees from erroneously concluding that there is a broad waiver of certain criminal grounds of inadmissibility available to them, when in fact the statute expressly restricts the Attorney General's authority to grant such waivers to inadmissible aliens in accordance to section 212(h) of the Act (8 U.S.C. 1182(h)) except in very narrow circumstances.

The Department agrees with the commenter that the statutory language authorizing a waiver of the criminal grounds of inadmissibility found in section 212(a)(2) of the Act (8 U.S.C. 1182(a)(2)) in connection with an application for adjustment of status under section 209 of the Act is broader than that found in section 212(h) of the Act, which authorizes waivers of criminal grounds of inadmissibility in connection with applicants for adjustment of status under other provisions of the immigration law. The Attorney General's decision in Matter of Jean already governs the standards under which a criminal ground of inadmissibility waiver may be granted as a matter of discretion in a section 209 adjustment case. However, the amendments contained in this interim rule harmonize the exercise of discretion to grant criminal waivers among applicants for adjustment of status by extending the Matter of Jean standards to those applications for the waiver of criminal grounds of inadmissibility made under section 212(h)(2) of the Act, including, but not limited to, adjustment of status under section 586 of Pub. L. 106-429 or section 245(a) of the Act (8 U.S.C. 1255(a)).

Similarly, one commenter requested that the final rule be amended to clarify that the Attorney General is not compelled to grant any available waiver of a ground of inadmissibility. Rather, stated the commenter, all such grants fall within the discretion of the Attorney General. Moreover, the commenter contended that the regulations should be amended to state that the Attorney General will not grant waivers of criminal grounds of inadmissibility to adjustment applicants under section 209 of the Act who are convicted of aggravated felonies.

The Department agrees with the commenter that the Attorney General has complete discretion to grant a waiver under section 209(c) of the Act and section 212(h) of the Act. The Department also agrees that, in general, individuals convicted of aggravated felonies would not warrant the Attorney General's use of this discretion. In fact, the proposed regulations stated that even if the applicant can meet the “exceptional and extremely unusual hardship” standard for the exercise of discretion, depending upon the severity of the offense, this might “still be insufficient” to obtain the waiver. See 67 FR at 45407. That language would substantially limit the circumstances under which an individual convicted of an aggravated felony would be granted a waiver as a matter of discretion. Therefore, the Department believes that this language achieves the goal of the commenter while not unduly constraining the Attorney General's discretion to render waiver decisions on a case-by-case basis.

Finally, one commenter stated that the final rule should clarify that only the Immigration and Naturalization Service (“Service”) has the discretionary authority to grant waivers under section 209(c) of the Act, and not the Board of Immigration Appeals or Executive Office for Immigration Review (EOIR). This is a matter outside the scope of this rulemaking action because the proposed amendment to 8 CFR 212.7(d) does not relate to the granting of waivers under section 209(c) of the Act with regard to refugees. Nevertheless, the Department notes that it does not agree with this comment. The Act and the Department's regulations both provide the alien with the opportunity to renew his or her application for adjustment in removal proceedings. See 8 CFR 209.1(e). Because the alien is renewing his or her case before the immigration judge, the alien may seek the same waivers of grounds of inadmissibility made available to him or her by the section of law under which the application for adjustment of status was filed. See Matter of H-N-, 22 I. & N. Dec. 1039 (BIA 1999).

The commenter is correct in that the Act does require the alien to demonstrate that he or she is not inadmissible under section 212 of the Act. See section 240(c)(2) of the Act (8 U.S.C. 1229a(c)(2)). However, the waiver available at section 209(c) of the Act (8 U.S.C. 1159(c)) provides a means for eligible aliens, in the discretion of the Attorney General, to obtain a waiver of certain grounds of inadmissibility. See section 209(c) of the Act. As such, these waivers are available to an alien seeking to demonstrate that he or she is not inadmissible before the Service and in immigration proceedings.

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule only affects aliens who are subject to inadmissibility on criminal grounds by amending Department of Justice standards for waivers of the criminal grounds for inadmissibility for immigrants under section 212(h) of the Act. This rule will have no effect on small entities as that term is defined in 5 U.S.C. 601(6).

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

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule is considered by the Department of Justice, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget for review.

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

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

Under the Paperwork Reduction Act of 1995, Pub. L. 104-17, all departments are required to submit to the Office of Management and Budget, for review and approval, any reporting requirements inherent in a final rule. This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.

The Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. 107-155, 116 Stat. 81 (March 27, 2002), contains extensive amendments to the Federal Election Campaign Act of 1971 (“FECA” or “the Act”), as amended, 2 U.S.C. 431 et seq. This final rule is part of a continuing series of rulemakings the Commission has published over the last several months in order to meet the rulemaking deadlines set out in BCRA. In the Final Rule on Reorganization of the Definitions of “Contribution” and “Expenditure,” 67 FR 50582 (August 5, 2002), the Commission moved these definitions from former 11 CFR 100.7 and 100.8 to new 11 CFR part 100, subparts B, C, D and E. Additionally, the Commission notes that in the various final rules that the Commission promulgated this year, it moved the following sections and paragraphs: 109.2, 109.3, 110.1(i)(2), 110.4(a), 110.7, 110.9(b), 110.9(c), and 110.9(d). Consequently, current regulations that include cross references to these former sections and paragraphs need to be updated to reflect the new citations. 1 Therefore, the Commission is publishing this final rule to make necessary technical and conforming amendments to its regulations to reflect the current citations, as well as to correct typographical errors that are in the various final rules.

Because the final rules published herein are merely technical and non-substantive, they are not a substantive rule requiring notice and comment under the Administrative Procedure Act, 5 U.S.C. 553. Under the “good cause” exception to the notice and comment requirements, 5 U.S.C. 553(b)(B) and 553(d)(3), the final rules are effective upon publication. Thus, the final rules are effective on December 26, 2002.

This final rule does not have a significant economic impact on a substantial number of small entities. The amendments in this final rule are all technical and nonsubstantive in nature and do not have any economic impact on any entity subject to the underlying regulations.

Delmarva Laboratories, Inc., 2200 Wadebridge Rd., P.O. Box 525, Midlothian, VA 23113, filed ANADA 200-291 for CLINSOL (clindamycin hydrochloride) Liquid. The application provides for oral use of clindamycin hydrochloride liquid in dogs and cats for the treatment of various bacterial infections. Delmarva Laboratories' CLINSOL Liquid is approved as a generic copy of Pharmacia & Upjohn's ANTIROBE Aquadrops Liquid, approved under NADA 135-940. ANADA 200-291 is approved as of August 26, 2002, and the regulations are amended in 21 CFR 520.447 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In addition, Delmarva Laboratories, Inc., has informed FDA of a change of address to 1500 Huguenot Rd., suite 106, Midlothian, VA 23113. Accordingly, the agency is amending the regulations in 21 CFR 510.600 to reflect the change of sponsor address.

In accordance with the freedom of information provisions of 21 CFR part 20 and 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

FDA has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to congressional review requirements in 5 U.S.C. 801-808.

1. The authority citation for 21 CFR part 510 continues to read as follows:

(c) * * *

(1) * * *

(2) * * *

Bayer Corp., Agriculture Division, Animal Health, P.O. Box 390, Shawnee Mission, KS 66201, filed NADA 141-208 that provides for veterinary prescription use in dogs of ADVANTAGE DUO (imidacloprid and ivermectin) Topical Solution for the prevention of heartworm disease caused by D. immitis and treatment of flea infestations ( C. felis ). The NADA is approved as of September 27, 2002, and the regulations are amended by adding 21 CFR 524.1140 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

Under section 512(c)(2)(F)(ii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(ii)), this approval qualifies for 3 years of marketing exclusivity beginning September 27, 2002.

The agency has determined under 21 CFR 25.33(d)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

On February 16, 2001, the Department of State published a final rule amending the Canadian Exemption (22 CFR 126.5) of the ITAR (66 FR 10575). Authorized end-users included Canadian Federal or Provincial governmental authorities acting in an official capacity or a “Canadian-registered person.” The term “Canadian-registered person” encompassed any Canadian national (including Canadian business entities organized under the laws of Canada), dual national, and permanent resident registered in Canada in accordance with the Canadian Defence Production Act, and such other Canadian Crown Corporations as may be identified by the Department of State. This final rule amends section 126.5(b) of the ITAR by adding “Canadian Crown Corporations identified by the Department of State in a list of such persons publicly available through the Internet Website of the Office of Defense Trade Controls and by other means.”

This amendment involves a foreign affairs function of the United States and, therefore, is not subject to the procedures required by 5 U.S.C. 553 and 554. It is exempt from review under Executive Order 12866 but has been reviewed internally by the Department to ensure consistency with the purposes thereof. This rule does not require analysis under the Regulatory Flexibility Act or the Unfunded Mandates Reform Act. It has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Act of 1966. It will not have substantial direct effects on the States, the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant application of Executive Orders 12372 and 13123. However, interested parties are invited to submit written comments to the Department of State, Office of Defense Trade Controls, ATTN: Regulatory Change, Canadian Exemption, 12th Floor, SA-1, Washington, D.C. 20522-0112. Such persons must be so registered with the Department of State's Office of Defense Trade Controls (DTC) pursuant to the registration requirements of section 38 of the Arms Export Control Act.

The regulations governing the responsibilities and conduct of employees previously codified as part 10 of this title prescribed jointly by the Department of State, the Agency for International Development, and the U.S. Information Agency have been repealed.

The Agency for International Development is amending Part 200 to delete the reference to part 10 of this title and to reference the Office of Government Ethics' government-wide Standards of Ethical Conduct of the Executive Branch, 5 CFR part 2635.

1. Executive Order 12866. USAID has determined that this regulation is not a significant regulatory action as defined in Executive Order 12866 and, accordingly, this regulation has not been reviewed by the Office of Management and Budget.

2. Regulatory Flexibility Act. It is hereby certified that this regulation will not have a significant economic impact on a substantial number of small entities. Accordingly, a Regulatory Flexibility Analysis is not required.

3. Executive Order 13132. This regulation will not have a substantial direct effect on the states, on the relationship between the national government and the states, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this regulation does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

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

5. Small Business Regulatory Enforcement Fairness Act of 1996. This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic or export markets.

7. Executive Order 12988—Civil Justice Reform. USAID has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, this rule meets the applicable standards in section 3 to mitigate litigation, eliminate ambiguity and reduce burden.

8. Paperwork Reduction Act. This rule does not contain information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The collection of information contained in these final regulations has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) under control number 1545-1630. Responses to this collection of information are mandatory.

The collection of information is in § 1.25A-1(d) and (f). Taxpayers must elect to claim an education credit by attaching form 8863, “Education Credits (Hope and Lifetime Learning Credits),” to a Federal income tax return for the taxable year in which a credit is claimed. This collection of information is required in order for a taxpayer to elect to claim an education credit. This information will be used to carry out the internal revenue laws. The likely respondents are individuals.

The reporting burden contained in § 1.25A-1(d) and (f) is reflected in the burden of form 8863, “Education Credits (Hope and Lifetime Learning Credits),” and form 1040, “U.S. Individual Income Tax Return.”

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number.

Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.

This document contains amendments to the Income Tax Regulations (26 CFR part 1) regarding the Hope Scholarship Credit and the Lifetime Learning Credit (education tax credit) under section 25A of the Internal Revenue Code. The Taxpayer Relief Act of 1997 (Public Law 105-34 (111 Stat. 788) (TRA '97)) added section 25A to provide the education tax credit. In general, the education tax credit allows taxpayers to claim a nonrefundable credit against their Federal income tax for the payment of certain postsecondary educational expenses. The Economic Growth and Tax Relief Reconciliation Act of 2001 (Public Law 107-16 (115 Stat. 38)) added section 222 of the Internal Revenue Code to provide an above-the-line deduction for certain postsecondary education expenses paid in taxable years beginning after December 31, 2001, and before January 1, 2006. Section 222 is an alternative to section 25A, and taxpayers cannot claim a section 222 deduction and a section 25A education tax credit in the same year with respect to the same student.

On November 17, 1997, the IRS published Notice 97-60 (1997-2 C.B. 310) to provide general guidance on the higher education tax incentives enacted by TRA '97, including the education tax credit. A notice of proposed rulemaking (REG-106388-98) was published in the Federal Register (64 FR 794) on January 6, 1999. One request for a public hearing was received. However, the request was withdrawn, and no public hearing was held. The IRS received written and electronic comments responding to the notice of proposed rulemaking. After consideration of all the comments, the proposed regulations are adopted as amended by this Treasury decision. The revisions are discussed below.

Many commentators requested clarification of the information reporting requirements under section 6050S for eligible educational institutions (institutions) that receive payments of qualified tuition and related expenses (qualified expenses). These comments are outside the scope of section 25A, which relates solely to the education tax credit allowable to taxpayers for payments of qualified expenses. However, these comments were considered by the IRS and the Treasury Department in drafting the proposed regulations under section 6050S that were published in the Federal Register (67 FR 20923) on April 29, 2002.

Several commentators recommended changes to the rules for calculating the amount of any allowable education tax credit. One commentator recommended that the calculation of the Hope Scholarship Credit be simplified so that the credit is allowable for the first $1,500 of qualified expenses, rather than 100 percent of the first $1,000 of qualified expenses, and 50 percent of the next $1,000 of qualified expenses as provided in section 25A(b)(1). This commentator also recommended that the calculation of the Lifetime Learning Credit be simplified so that the credit is allowable for the first $1,000 of qualified expenses, rather than 20 percent of the first $5,000 of qualified expenses as provided in section 25A(c)(1). Another commentator recommended that, for purposes of the income limitations in section 25A(d), income realized on the conversion of a traditional Individual Retirement Account (IRA) to a Roth IRA should be excluded from the definition of modified adjusted gross income. The rules in the proposed regulations regarding calculation of the amount of the education tax credit and the definition of modified adjusted gross income derive from the statutory provisions of section 25A. Therefore, the final regulations do not adopt these recommendations.

Commentators requested clarification of the rules for claiming the education tax credit in the case of a dependent. Consistent with the legislative history to section 25A, § 1.25A-1(g) of the proposed regulations provides that if a student is a claimed dependent of a taxpayer, only that taxpayer may claim the education tax credit for the student's qualified expenses; however, if the taxpayer is eligible to, but does not claim the student as a dependent, only the student may claim the education tax credit for the student's qualified expenses. The final regulations retain this rule.

Commentators asked how the student's personal exemption deduction amount under section 151 is calculated if a parent does not claim the student as a dependent on the parent's income tax return in order that the student may claim the education tax credit on the student's income tax return. Section 151(d)(2) provides a special rule for calculating the exemption deduction amount in the case of an individual (for example, a student) for whom a dependency exemption deduction is allowable to another taxpayer (for example, a parent). Under this rule, a student's personal exemption deduction amount is zero on the student's income tax return if a parent is eligible to claim the student as a dependent even if the parent does not in fact claim a dependency exemption deduction for the student. The result is the same if the amount of the dependency exemption deduction allowable to the parent is reduced or eliminated under the phase-out rule in section 151(d)(3).

Consistent with section 25A(g)(7), the proposed regulations provide that a nonresident alien individual is not eligible to claim an education tax credit, unless the individual is treated as a resident alien of the United States by reason of an election under section 6013(g) or (h). One commentator suggested that Examples 7 and 8 in § 1.25A-3(d)(2) of the proposed regulations should be revised to avoid any confusion about the eligibility of a nonresident alien student to claim an education tax credit. The final regulations modify these examples to avoid any implication that a nonresident alien student may claim an education tax credit, in the absence of an election under section 6013(g) or (h).

Another commentator requested clarification as to whether a nonresident alien individual who elects to be treated as a resident alien may claim an education tax credit. A limited number of income tax treaties allow certain individuals to elect to be treated as residents of the United States. Because such an election is intended to apply for all tax purposes, an individual for whom a valid election under a treaty is in effect is treated as a resident for purposes of section 25A.

Several commentators requested clarification of the definition of academic period . The proposed regulations provide that academic period means a quarter, semester, trimester, or other period of study (such as a summer school session) as reasonably determined by the eligible educational institution. As stated in the preamble of the proposed regulations, this definition is intended to include institutions that use traditional academic terms and institutions that do not use academic terms, but for example use clock hours or credit hours. The IRS and the Treasury Department invited comments on the proposed definition. One commentator suggested that the final regulations provide that, in the case of institutions that use clock hours or credit hours, but do not use traditional academic terms, the term academic period may include a payment period as defined by the Department of Education in 34 CFR 668.4. The final regulations adopt this recommendation.

Several commentators requested clarification of the definition of qualified tuition and related expenses . The proposed regulations define qualified tuition and related expenses to mean tuition and fees required for the enrollment or attendance of a student for courses of instruction at an eligible educational institution. The proposed regulations provide that, in general, the test for determining whether a fee is a qualified expense is whether the fee is required to be paid to the institution as a condition of the student's enrollment or attendance at the institution. However, the proposed regulations also provide that qualified expenses do not include the costs of room and board, insurance, medical expenses, transportation, and similar personal, living, or family expenses, regardless of whether the payment of such fees is required for the student's enrollment or attendance. The final regulations retain these rules.

One commentator requested clarification as to whether an education tax credit is allowable for amounts paid in one year for an independent study course which the student has up to two years to complete. The proposed regulations provide that qualified expenses paid in one taxable year may qualify for an education tax credit in the year of the payment if the expenses relate to education furnished during an academic period beginning in the year of payment or within the first three months of the next taxable year. The final regulations retain this rule. Therefore, an education tax credit is allowable for qualified expenses paid in one taxable year for independent study during an academic period that begins in the taxable year of payment or within the first three months of the next taxable year.

One commentator requested clarification as to when amounts paid for books are qualified expenses. The proposed regulations provide that, in general, an education tax credit is not available for expenses incurred to purchase books. The final regulations continue to provide that qualified expenses include fees for books, supplies, and equipment used in a course of study only if the fees must be paid to the institution for the enrollment or attendance of the student at the institution. In this situation, the amount paid for books is a required fee.

Other commentators requested clarification as to whether a required student health service fee and a required transportation fee are qualified expenses. Consistent with the legislative history to section 25A, the final regulations continue to provide that qualified expenses do not include fees for room and board, insurance, medical expenses, transportation, and similar personal, living, or family expenses, regardless of whether the fee must be paid to the institution as a condition of the student's enrollment or attendance. Therefore, a required student health fee and a required transportation fee are not qualified expenses. The final regulations clarify that, as stated in the preamble to the proposed regulations, medical expenses include student health fees.

Several commentators requested clarification of how a required general fee (referred to as a bundled fee ) should be treated in calculating the amount of qualified expenses. These commentators explained that often institutions will charge a bundled fee that includes charges for both qualified expenses and personal expenses. These commentators note that, unlike a comprehensive fee, a bundled fee normally does not include tuition charges.

Section 1.25A-2(d)(4) of the proposed regulations describes the treatment of a comprehensive fee, which typically includes charges for tuition, fees, and personal expenses. The proposed regulations provide that the portion of the comprehensive fee that is allocable to personal expenses is not a qualified expense, and require institutions to make a reasonable allocation between qualified expenses and personal expenses. One commentator recommended that the final regulations provide a similar allocation rule for bundled fees. Another commentator recommended that institutions should not be required to allocate a bundled fee that includes an insubstantial amount of personal expenses. Because personal expenses do not qualify for the education tax credit, the final regulations clarify that the allocation rule in § 1.25A-2(d)(4) applies to any required fee that combines charges for both qualified expenses and personal expenses (such as comprehensive fees and bundled fees).

One commentator noted that, under the definition of a hobby course in § 1.25A-2(d)(5) of the proposed regulations, one student may be enrolled in a course to receive academic credit toward a degree, another student may be enrolled in the same course on a noncredit basis to acquire or improve job skills, while a third student may be enrolled in the same course as a hobby. Under the proposed regulations, the first and second students may be eligible to claim an education tax credit, but the third student is not. Consistent with sections 25A(c)(2) and 25A(f)(1)(B), the final regulations continue to provide that expenses paid for courses that involve sports, games, or hobbies, or any noncredit course, are not qualified expenses, unless the course is part of the individual's degree program, or, in the case of the Lifetime Learning Credit, the student takes the course to acquire or improve job skills.

Several commentators requested clarification of the definition of an eligible student for purposes of the Hope Scholarship Credit. One commentator recommended that the year of study requirement in the regulations should be eliminated and that the credit should be allowed for any two years of undergraduate study. The year of study requirement derives from the statutory requirements in section 25A. Therefore, the final regulations do not adopt this recommendation.

Another commentator requested clarification as to whether a student who completes a one-year postsecondary certificate program and in a later year completes another one-year postsecondary certificate program (or enrolls in a postsecondary degree program) may claim a Hope Scholarship Credit for both years. The final regulations include a new example in § 1.25A-3(d)(2) that illustrates that the Hope Scholarship Credit is allowable for the first two years of postsecondary education, which may include two one-year certificate programs.

Commentators requested clarification of Example 3 in § 1.25A-3(d)(2). The commentators asked if an otherwise eligible student who has not completed the first two years of undergraduate study as of the beginning of the taxable year may include qualified expenses paid during the entire taxable year in calculating the Hope Scholarship Credit, even if the student completes the first two years of undergraduate study during the year. The example has been revised to clarify that, if a student has not completed the first two years of undergraduate study as of the beginning of the taxable year, the qualified expenses paid during the entire taxable year may be taken into account in calculating the Hope Scholarship Credit. However, in no event may a Hope Scholarship Credit be claimed for more than two taxable years with respect to the same student.

Several commentators requested clarification of the rules for payments of qualified expenses by a third party. One commentator asked how the third party payment rule in § 1.25A-5 of the proposed regulations applies in the case of a taxpayer who, although not divorced, is not treated as married within the meaning of section 7703. The proposed regulations provide that if a third party (someone other than the taxpayer, the taxpayer's spouse, or a claimed dependent) pays qualified expenses on behalf of a student directly to an institution, the student is treated as receiving the payment from the third party and, in turn, paying the qualified expenses to the institution. The final regulations clarify that, for purposes of § 1.25A-5(b), a third party includes the spouse of a taxpayer who is not treated as married under section 7703. Thus, for example, if the taxpayer is a custodial parent who is not treated as married under section 7703, then (assuming that the taxpayer claims the student as a dependent) the taxpayer may claim an education tax credit for qualified expenses paid by the noncustodial parent on behalf of the student.

One commentator requested clarification as to whether an education tax credit is allowable for the amount of any tuition reduction provided by an eligible educational institution to its employees, or their spouses or dependent children. The final regulations provide in § 1.25A-5(b)(2) that an education tax credit is allowable for the amount of any reduction in tuition only if the amount of the tuition reduction is included in the employee's gross income.

Several commentators requested clarification of the rules in § 1.25A-5(c) of the proposed regulations for reducing the amount of qualified expenses paid during the taxable year by the amount of certain tax-free educational assistance (including any qualified scholarship that is excludable from gross income under section 117) received during the taxable year. The proposed regulations provide a rule for allocating scholarships between qualified expenses and expenses that do not qualify for an education tax credit under section 25A (nonqualified expenses). The proposed regulations provide that a scholarship will be treated as allocated to qualified expenses, and thus as a qualified scholarship that reduces qualified expenses, unless the student includes the scholarship in income or the terms of the scholarship require that it be applied to nonqualified expenses.

Several commentators asked whether a student may choose to include in income a restricted scholarship that, by its terms, must be used to pay qualified expenses and claim an education tax credit for qualified expenses covered by the scholarship. The test for purposes of section 25A is whether the scholarship is excludable from gross income under section 117, and not whether the student elects to include the scholarship in income. The legislative history to section 25A states that qualified expenses do not include expenses covered by “education assistance that is not required to be included in the gross income of either the student or the taxpayer claiming the credit.” See H.R. Conf. Rep. No. 220, 105th Cong., 1st Sess., at 343 (1997). Section 117 provides, in general, that gross income shall not include a scholarship that, consistent with the terms of the scholarship, is used to pay certain qualified expenses. A restricted scholarship that must be used to pay qualified expenses is a qualified scholarship excludable under section 117. Therefore, for purposes of section 25A, a restricted scholarship that must be used to pay qualified expenses reduces the amount of qualified expenses that may be taken into account in calculating the education tax credit.

An unrestricted scholarship that may be used to pay any of the student's costs of attendance (such as room and board and any other incidental expenses) is excludable from gross income only if used to pay qualified expenses. To the extent that an unrestricted scholarship, or a portion thereof, is used to pay nonqualified expenses and such use is consistent with the terms of the scholarship, the scholarship is not a qualified scholarship excludable under section 117. In this situation, the scholarship is included in gross income and will not reduce the amount of qualified expenses that may be taken into account in calculating the education tax credit. The final regulations clarify that, for purposes of section 25A, a scholarship or fellowship grant is treated as a qualified scholarship excludable under section 117 (thereby reducing the amount of qualified expenses) except to the extent: (1) The scholarship may be applied, by its terms, to expenses other than qualified expenses (such as room and board) and the student reports the scholarship as income; or (2) the scholarship must be applied, by its terms, to expenses other than qualified expenses (such as room and board) and the student reports the scholarship as income.

One commentator recommended that the final regulations provide that loans are not excludable educational assistance within the meaning of § 1.25A-5(c), and do not reduce the amount of qualified expenses. Section 1.25A-5(e)(3) of the proposed regulations specifically provides that amounts paid with loan proceeds may qualify for the education tax credit. In addition, an example in § 1.25A-5(c)(4) of the proposed regulations provides that a loan is not tax-free educational assistance within the meaning of § 1.25A-5(c). The final regulations retain these specific provisions on loans.

The proposed regulations provide that expenses paid with loan proceeds disbursed directly to an institution are, in general, treated as paid on the date of the disbursement of the proceeds. Several commentators recommended that, in accordance with the Department of Education regulations in 34 CFR 668.164(a), the date of disbursement should be the date the institution credits the student's account with the loan proceeds and not the date the lender disburses the loan proceeds to the institution. In general, 34 CFR 668.164 regulates the disbursement of Federal student loans under title IV of the Higher Education Act of 1965 (including the Federal Perkins Loan, Federal Family Education Loan, and William D. Ford Direct Loan Program). These rules require an institution to verify that a student is enrolled and is otherwise eligible to receive the loan proceeds before crediting the student's account or releasing the funds to the student. Consistent with these Department of Education rules, the final regulations clarify that the qualified expenses paid with loan proceeds disbursed directly to an institution are treated as paid at the time the loan proceeds are actually credited to the student's account. In the case of title IV loan programs, Department of Education rules require the institution to notify the borrower of the date and the amount of the disbursement at the time the institution credits the student's account. See 34 CFR 668.165(a)(2). However, the final regulations provide that if the taxpayer does not know the date the institution credits the student's account, the taxpayer must treat the expenses as paid on the last date for payment prescribed by the institution.

Several commentators requested clarification as to when a taxpayer may claim an education tax credit for qualified expenses paid through a third party installment payment plan. One commentator explained that institutions and taxpayers may contract with a third party installment payment company to provide an installment payment plan for the institution's students. The commentator explained that, in general, the company agrees to collect tuition payments over a period of time (usually 10 months) and remit the payments to the institution on a predetermined schedule. The commentator asked whether a taxpayer is treated as paying the qualified expenses when the taxpayer pays the third party installment payment company, or when the third party disburses the funds to the institution. The final regulations clarify that when the expenses are treated as paid for purposes of section 25A depends on whether, under the terms of the installment payment agreement, the third party is acting as an agent of the taxpayer or as an agent of the institution.

One commentator requested clarification as to whether an education tax credit is allowable for any amounts paid for qualified expenses that are retained by the institution, under the institution's refund policy, when the student withdraws. Section 1.25A-5(f)(1) of the proposed regulations provides that the amount of qualified expenses is calculated by adding all the qualified expenses paid for the year, and subtracting any refund received from the institution during the same year. The final regulations retain this rule. Therefore, amounts required to be paid for enrollment or attendance are qualified expenses to the extent that such amounts are not refunded when the student withdraws. The final regulations add a new paragraph § 1.25A-5(f)(4) to clarify that, with respect to qualified expenses paid with the proceeds of a loan, any refund of loan proceeds by the institution back to the lender on behalf of the borrower is treated as a refund of qualified expenses.

The proposed regulations provide that if a taxpayer receives a refund of qualified expenses paid in a prior taxable year before the taxpayer files a Federal income tax return for the prior year, the amount of qualified expenses for the prior taxable year is reduced by the amount of the refund. One commentator suggested that the taxpayer should have the option of claiming the credit for the full amount of qualified expenses paid in the prior taxable year and then recapturing the credit on the return filed for the taxable year in which the refund was received. The rule in the proposed regulations is intended to simplify the calculation of the education tax credit by avoiding the need to recompute the allowable education tax credit in a later year and report any resulting increase in tax. Therefore, the final regulations do not adopt the recommendation.

The final regulations clarify that, in the case of a payment of qualified expenses in one taxable year and a refund of qualified expenses in a subsequent taxable year, the recapture amount for the refund year is the difference in tax liability for the prior taxable year (taking into account any redetermination of such tax liability by audit or amended return) that results when the tax liability for the prior year is calculated using the taxpayer's redetermined credit.

It has been determined that this Treasury decision is not a significant regulatory action as defined in EO 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the proposed regulations preceding these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of the regulations is Donna Welch, Office of Associate Chief Counsel (Procedure & Administration), Administrative Provisions & Judicial Practice Division. However, other personnel from the IRS and the Treasury Department participated in the development of the regulations.

This rule establishes a limited number of minimum safety and security standards for private companies that engage in the business of transporting violent prisoners on behalf of State and local jurisdictions. The final rule requires private prisoner transport companies to establish measures designed to improve public safety by preventing escapes of violent prisoners and establishing appropriate safeguards and procedures in the event of the escape of a violent prisoner. In addition, the rule establishes minimum standards to ensure the safety of violent prisoners during transportation.

In enacting the Interstate Transportation of Dangerous Criminals Act of 2000, Public Law 106-560 (114 Stat. 2784) (December 21, 2000) (“the Act”), Congress found that State and local jurisdictions are increasingly turning to private companies to transport their violent prisoners, and that escapes have occurred. Congress determined that minimum regulations for the private prisoner transport industry were necessary to provide protection against risks to the public that are inherent in the transportation of violent prisoners and to assure the safety of those being transported.

No. These regulations implement the Act and do not pre-empt any applicable Federal, State, or local law that may impose additional obligations on private prisoner transport companies or otherwise regulate the transportation of violent prisoners. For example, all Federal laws and regulations governing interstate commerce ( e.g. , Federal laws regulating the possession of weapons and Federal Aviation Administration or Transportation Security Administration rules and regulations governing travel on commercial aircraft) will continue to apply to private prisoner transport companies. Because these regulations implement the Act, they affect only limited aspects of a private prisoner transport company's operations. Therefore, these regulations are not intended to be model guidelines or a complete set of standards for the private prisoner transport industry. Private prisoner transport companies should be aware that compliance with these regulations will mean only that they will not be subject to the sanctions established in the Act. The regulations are not meant to prevent or discourage private prisoner transport companies from adopting additional or more stringent standards relating to the transportation of prisoners. Similarly, these regulations do not limit the authority of Federal, State, or local governments to impose additional safety requirements or impose a higher standard of care upon private companies that transport violent prisoners. The purpose of these regulations is to enhance public security and the safety of both prisoners and guards during transportation. The regulations are not intended to create a defense to any civil action, whether initiated by a unit of government or any other party. Thus, for example, compliance with these regulations is not intended to and does not establish a defense against an allegation of negligence or breach of contract. Regardless of whether a contractual agreement establishes minimum precautions, the companies affected by these regulations will remain subject to the standard of care that is imposed by statute and common law upon their activities (or other activities of a similarly hazardous nature).

This final rule (1) requires that private prisoner transport companies comply with minimum standards for fingerprint-based criminal background checks and preemployment drug testing for potential employees; (2) provides minimum standards for the length and type of employee training; and (3) establishes restrictions on the number of hours that transportation employees may be on duty during a given time period. This rule also establishes the minimum standards that private prisoner transport companies must comply with for the use of restraints while transporting violent prisoners, and it establishes categories of violent offenders required to wear identifying clothing. Further, the rule establishes a minimum guard-to-prisoner ratio that must be observed while transporting violent prisoners, and requires that private prisoner transport companies comply with standards regarding employee uniforms and employee identification. In addition, the rule requires private prisoner transport companies to notify local law enforcement officials 24 hours in advance of any scheduled stops in their jurisdiction when transporting violent prisoners. In the event of the escape of a violent offender, the rule requires that the private prisoner transport company personnel immediately notify appropriate law enforcement officials in the jurisdiction where the escape occurs, as well as the governmental entity or privately run incarceration facility that contracted with the private prisoner transport company for the transport of the escaped violent prisoner. Finally, the rule requires that private prisoner transport companies adopt certain minimum standards to protect the safety of violent prisoners in accordance with applicable Federal and State law. Pursuant to section 4(c) of the Act, except for the standards regarding the categories of violent prisoners required to wear brightly colored clothing, these standards are not stricter than the standards applicable to the United States Marshals Service (USMS), Immigration and Naturalization Service (INS), and the Federal Bureau of Prisons (BOP) when transporting violent prisoners under comparable circumstances.

This final rule only covers “private prisoner transport companies,” which are defined in section 3 of the Act as “any entity, other than the United States, a State, or an inferior political subdivision of a State, which engages in the business of the transporting for compensation, individuals committed to the custody of any State or of an inferior political subdivision of a State, or any attempt thereof.” Section 3 of the Act defines a “violent prisoner” as “any individual in the custody of a State or an inferior political subdivision of a State who has previously been convicted of or is currently charged with a crime of violence or any similar statute of a State or the inferior political subdivisions of a State, or any attempt thereof.” The term “crime of violence” has the same meaning as in subsection 924(c)(3) of title 18, United States Code. Pursuant to this subsection, a crime of violence is an offense that is a felony and (1) has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or (2) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Certain regulations of the Department of Transportation (DOT) only apply to persons or entities operating vehicles capable of transporting a particular minimum number of passengers. In order to assist private prisoner transport companies to comply with these regulations and so as not to have one Federal agency imposing requirements that differ from the requirements of another agency, the Department refers to appropriate DOT regulations or incorporates them by reference as the Department's standards for implementing various provisions of the Act. This rule implementing Jeanna's Act covers private prisoner transport companies regardless of the number of passengers that their transport vehicle or vehicles are designed to accommodate.

If a company meets the definition of “private prisoner transport company” as defined in section 3(2) of the Act, the company must comply with this rule even if it does not transport prisoners across state lines. Congress passed the Act in order to impose regulations upon a previously federally unregulated industry that operates across the United States and engages in a potentially dangerous activity. In section 2 of the Act, Congress found that, “when a government entity opts to use a private prisoner transport company to move violent prisoners, then the company should be subject to regulation in order to enhance public safety.” This finding by Congress indicates that the threat that it intended to remedy was that posed by an unregulated industry engaging in business that could potentially affect the safety of citizens in all states. Although the Act is officially titled the “Interstate Transportation of Dangerous Criminals Act of 2000,” it is the Department's view that limiting the Act's provisions to only those companies that cross state borders would create the unacceptable result of leaving unregulated certain members of the industry that Congress clearly intended to regulate. In addition, the definition that Congress provided for “private prisoner transport company” does not require that the company engage in the interstate transportation of violent prisoners in order to be covered by the Act's provisions. The statutory direction of Congress to the Department was clear on this point. Section 4(a) of the Act states that the Department “shall promulgate regulations relating to the transportation of violent prisoners in or affecting interstate commerce.” A company that only operates intrastate can affect interstate commerce in several ways ( e.g. , by using interstate highways, by utilizing communications systems that rely on interstate modes of communications or satellites, by transporting prisoners who generally seek to cross state lines during escapes, by relying on the law enforcement agencies of nearby states in the event of an escape, etc.). Therefore, it is the Department's view that Congress clearly contemplated that, viewed either singly or in the aggregate, private companies that engage in the commercial activity of transporting violent prisoners within a state sufficiently affect interstate commerce to be covered by the requirements of this final rule.

Section 5 of the Act states that violators shall be fined up to $10,000 per violation and the costs of prosecution. Violators also will be responsible for making restitution to any public entity that expends funds for the purpose of apprehending any violent prisoner who escaped, in whole or in part, because of a violation of the Act. As discussed above, conduct constituting a violation of these regulations may also result in unrelated penalties as a result of criminal, administrative, or civil process pursuant to local, State, or other Federal laws.

There is considerable variation in the classification of prisoners that the Department transports and the circumstances under which those prisoners are transported. For example, unlike private prisoner transport companies, INS at times transports entire family groups (of both sexes and of different ages) who have been apprehended after illegally entering the United States. Under other circumstances, INS (along with BOP and USMS) transports offenders who have committed very violent crimes and are considered to be a high security risk. Accordingly, the Department's components that transport prisoners have developed differing standards for prisoner transport that are appropriately tailored to their roles and missions. By requiring the Department to promulgate regulations in this area, Congress appears to have at least two goals in mind. First, uniform standards for transporting prisoners serve to improve public security and the safety of the prisoners and guards during transportation. Second, by providing that the Department's regulations for the private sector not be stricter than those governing the Department's own components, Congress appears to have been concerned that the regulations not be unduly burdensome. The Department shares Congress' concerns that any regulations that the Department issues should not unduly burden private industry, especially small entities, while still addressing the problems that motivated the passage of this Act. However, regulations that fully reflect the considerable variation of the Department's own prisoner transport activities might be so complex as to be burdensome on the affected entities and, nonetheless, still not fully comply with congressional intent in certain areas. Therefore, consistent with section 4(c) of the Act, for some of the specific requirements of the Act ( e.g. , that prisoners ordinarily be required to wear brightly colored clothing) the rule establishes standards somewhat more stringent than the standard the Department uses for the transport of prisoners, under certain circumstances. Moreover, for certain requirements that Congress imposed on private entities, the Department may have greater flexibility in its comparable internal procedures because the functions of Departmental agencies differ significantly from those of private prisoner transport companies, and therefore the circumstances are not comparable. For other requirements of the Act ( e.g. , the guard-to-prisoner ratio), the Department is establishing a one-guard-to-six-violent-prisoner ratio. In the proposed rule, the Department specifically invited comments from private prisoner transport companies, from State and local law enforcement entities, and from the general public concerning what ratio the Department should adopt in the final rule. The Department also sought comment on the potential impacts that these regulations may have on the ability of sheriffs' departments and other operators of local jails to arrange safe and efficient violent prisoner transport in response to writs or other requirements. The responses that the Department received on the proposed rule are discussed in the “Comments Received” section of this final rule.

It is the Department's view that the provisions of the Act do not apply to the transportation of juveniles unless the juvenile has been charged or convicted as an adult for a crime of violence as defined in 18 U.S.C. § 924(c)(3). The Act defines a violent prisoner as one “who has previously been convicted of or is currently charged with a crime of violence.” The Act gives the term “crime of violence” the same meaning as that term has in 18 U.S.C. § 924(c)(3). Section 924(c)(3) includes in its definition of “crime of violence” the requirement that it be “an offense that is a felony.” This should be understood as referring to adults convicted of or facing felony criminal charges and to juveniles who previously have been convicted of or who are being prosecuted as adults for violent felony offenses. Unless juvenile offenders have been or are being tried as adults under federal law, they generally are not considered to have been “convicted” or “charged” with a “crime of violence” as defined in 18 U.S.C. § 924(c)(3). Instead, they are considered to have been adjudicated delinquent or found guilty (or found “involved”) in a juvenile delinquency proceeding, rather than convicted of a crime. E.g., United States v. Frasquillo-Zomosa , 626 F.2d 99, 101 (9th Cir. 1980) (“A successful prosecution under the [Federal Juvenile Delinquency] Act results not in a conviction of a crime but rather in adjudication of a status”). Although some provisions under federal law create an exception to this general understanding by explicitly providing that a “conviction” includes certain juvenile adjudications, e.g. , 18 U.S.C. § 924(e)(2)(B) (“violent felony” includes “any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for [a term exceeding one year] if committed by an adult”), neither 18 U.S.C.§ 924(c)(3) nor the Act itself contain any language that would support interpreting the Act as including within its scope the transportation of juvenile offenders who have been adjudicated or who are to be tried as juveniles.

In accordance with the Act, Department of Justice officials met with several representatives of the private prisoner transport industry, the American Correctional Association (ACA), and law enforcement groups, including the National Sheriffs' Association, American Jail Association, National Association of Police Organizations, and the National Association of Government Employees International Brotherhood of Police Officers.

Under the final rule, potential employees of private prisoner transport companies will have to pass a preliminary fingerprint-based criminal background check prior to being hired. This background check will disqualify from employment those applicants convicted of a misdemeanor crime of domestic violence or any felony conviction. The fingerprint-based criminal background check will be performed by providing the applicant's fingerprints to the governmental agency that is contracting with the private prisoner transport company, for submission through the state history record repository to the FBI. In the event that the private prisoner transport company is contracting with a privately run incarceration facility, and not directly with a governmental entity, the private prisoner transport company will have to make arrangements through the private incarceration facility to have the checks completed by the governmental entity ultimately requesting the transport. The background check also must include a credit report check, a physical examination, and a personal interview. Also, potential employees of private prisoner transport companies must undergo testing to detect the prior or current use of controlled substances as a condition of employment. The pre-employment drug testing must be done in accordance with applicable State law. In the event that there is no applicable State law, private prisoner transport companies must comply with the pre-employment drug testing requirements that apply to commercial drivers ( See , 49 CFR 382.301).

The Act states that the Department may require that employees of private prisoner transport companies participate in up to 100 hours of preservice training relating to the transportation of prisoners. This training must be in the following areas: use of restraints, searches, use of force (including use of appropriate weapons and firearms), CPR, map reading, and defensive driving. This rule requires private prisoner transport companies to provide their employees with 100 hours of preservice training in those areas. The training of Department personnel who transport violent prisoners is notably more rigorous in length and in type than the 100-hour maximum that Congress established in the Act for private prisoner transport companies. For instance, the BOP requires any employee who assists with prisoner bus transport to have successfully completed, at a minimum, one “probationary” year of service and attended 80 hours of Institutional Familiarization, 120 hours of Introduction to Correctional Techniques, 24 hours of Basic Prisoner Transport, and 80 hours of Bus Operations Training. In addition, a BOP employee must undergo 40 hours of refresher training annually and must possess a commercial drivers license. Similarly, INS employees who transport prisoners must undergo a minimum of 196 hours of training, including 20 hours of driving-related training, 16 hours of first-aid training and CPR, 6 hours of training on conducting searches, 48 hours of training on the use of firearms, and 88 hours of training on the proper use of force. The USMS also requires that its employees who transport prisoners undergo rigorous training, including follow-up courses. As part of its required training regimen, the USMS requires over 100 hours of training in the areas of prisoner handling, prisoner searches, proper application and removal of restraints, tactical training in dealing with combative subjects, the proper escalation and de-escalation of force, vehicle operation, and firearms safety. The final rule does not address the minimum quality standards required for training programs, the need for in-service training, or instructor qualifications, although these are critical factors that enable Department agencies to transport prisoners safely.

This final rule sets requirements to ensure that drivers of private prisoner transport companies comply with Federal standards that limit the amount of time a commercial driver may be on duty during a given time period. Pursuant to 49 CFR 395.3, no driver of a commercial vehicle may drive more than 10 hours following 8 consecutive hours off duty. A commercial driver will be barred from driving if the driver has been on duty (regardless of whether the employee drove) for 15 hours following 8 consecutive hours off duty. If the motor vehicle carrier operates commercial vehicles every day of the week, a driver will be barred from driving if the driver has been on duty for 70 hours in any period of 8 consecutive days. If the motor vehicle carrier does not operate commercial vehicles every day of the week, a driver will be barred from driving if the driver has been on duty for 60 hours in any period of 7 consecutive days.

The Act directs the Department to develop minimum standards for the number of private prisoner transport personnel that must supervise violent prisoners. The Act states that these minimum standards shall not exceed a requirement of one agent for every six violent prisoners. In addition, the Act states that the Department must not impose stricter standards on private prisoner transport companies than are applicable, without exception, to the USMS, BOP, and INS. As a minimum standard, the Department believes that a one-agent-to-six-violent-prisoner ratio is the most appropriate standard to protect the public from the threat of violent prisoner escapes. Although the Act states that the Department should establish a minimum guard-to-prisoner ratio, the Act also permits the Department to give private prisoner transport companies “appropriate discretion” in this area. The Department sought comment from law enforcement entities, private prisoner transport industry members, and the public as to the proper level of discretion that private prisoner transport companies should have in relation to the one-guard-to-six-violent-prisoner ratio established by this regulation. The responses that the Department received on the proposed rule are discussed in the “Comments Received” section of this preamble.

When Department of Justice components transport high-risk, maximum custody, or violent offenders, the guard-to-prisoner ratios are often significantly stricter than one guard for every six prisoners. For instance, when BOP personnel transport their maximum custody inmates on escorted trips (for medical treatment or other purposes), the BOP policy guidelines require that for each such inmate, there must be three BOP staff escorts, one of whom must be a Lieutenant. The guidelines also require that additional BOP staff ride along for the duration of the trip in a follow vehicle. Because BOP policy guidelines recommend that two BOP staff ride in the follow vehicle, the guard-to-prisoner ratio in this case is five guards to one prisoner. BOP policy guidelines require that this guard-to-prisoner ratio be maintained regardless of the number of prisoners being transported. When BOP transports prisoners who do not pose the highest security risk (regardless of the purpose of the trip), the BOP still requires that two employees ride in the van or car in which the prisoners are being transported, but without a requirement for a follow vehicle. Similarly, when USMS transports prisoners in a sedan (with a maximum capacity of three prisoners), USMS guidelines require a minimum of two armed deputies, for a minimum ratio of two guards to three prisoners. If only two prisoners are being transported by the USMS in a sedan, the two-deputy requirement still applies, yielding a ratio of one guard to one prisoner. If, for any reason, a sedan or van with a safety screen is not available, USMS guidelines require a minimum of a one-guard-to-one-prisoner ratio. Similar to the BOP policy, when the USMS transports prisoners in a van, USMS guidelines require that a minimum of two armed deputies accompany the prisoner. The resulting ratio will be at least two armed USMS deputies for 12 prisoners, yielding a ratio of one guard for six prisoners. INS guidelines require that if an INS detainee is being transported in an unsecured sedan, van, or utility vehicle by one INS officer, there is a minimum guard-to-detainee ratio of one guard for every two INS detainees. If there are more than two INS detainees being transported, there must be another INS guard present. The maximum capacity of an unsecured INS van is six detainees, resulting in a minimum possible guard-to-detainee ratio of one guard to three detainees for travel in an unsecured INS van. For secured sedans, vans, and utility vehicles, there is a minimum requirement of one officer unless the trip is over a long distance or requires stops for food or fuel. In that case, another officer would normally be required. There are instances where Department personnel must transport prisoners in buses, and in these cases, the guard-to-prisoner ratio typically diminishes. At times, this ratio may decrease to less than one guard for every six prisoners. The BOP guidelines require that three BOP staff accompany bus movements (not including the transportation of high risk offenders described above). Similarly, USMS policy mandates that a minimum of two armed deputies and a driver be used during bus transportation. Regulations of the INS require a minimum of two INS agents on each bus; however, the regulations also state that the minimum number of agents should be increased, or an escort vehicle added, if INS agents determine that the risk level of detainees warrants it. Despite any decrease in the guard-to-prisoner ratio, there are numerous Department operating procedures that are not required of private prisoner transport companies that ensure the security of the Department vehicles, officers, and prisoners. For instance, there are Department operating procedures that require buses and other vehicles to have the rear cage door locked while inmates are aboard, to be equipped with security screens that separate the driver from the prisoners, to have steel mesh over the windows and doors, to have inside door handles removed, and to be searched for contraband before and after each prisoner movement. There are extensive Department guidelines that govern the movement of prisoners to and from buses, and also govern prisoner seating arrangements once on the bus. There are additional policies and procedures for monitoring and controlling prisoner conduct while on the bus and during stops. In addition, Department personnel have extensive training and knowledge of proven safety techniques ( e.g. , rules that handcuff keys are to be carried on separate key rings from vehicle ignition keys). This rule will not require that any of these measures be adopted by private prisoner transport companies.

As discussed in the preceding paragraphs, the Department's guard-to-prisoner ratio varies depending upon the nature and security classification of the offender, the escape risk, and other factors. This ratio is often significantly stricter than the maximum ratio the Act permits the Department to require for private companies. The Department's ratio is also sometimes less strict than the one-to-six ratio referred to in the Act. The Department's own excellent record in transporting prisoners safely and securely with ratios lower than one guard to six prisoners is due in large measure to the extensive training that custodial and transport personnel receive (training that greatly exceeds the maximum training that the Department is permitted to require by regulation), to the carefully designed physical configuration of the transport vehicles, and to the elaborate procedures set forth in the Department's guidelines. It should be noted that this final rule does not require that private transport companies adhere to all of the Department's own guidelines regarding prisoner transport. Compliance with such guidelines would likely be very expensive for private companies. Further, a multi-tiered approach that the Department follows for conducting its own transport of prisoners would be administratively burdensome for private companies and require them to obtain information about each prisoner (such as their escape risk or security classification) that they are not at present likely to receive from the committing authority. But in the absence of mandated compliance with all of these safeguards, private prisoner transport does not involve “comparable circumstances” that would permit use of ratios more lenient than one to six. In an effort to comply both with the statutory requirement that the guard-to-prisoner ratio not exceed one to six and the statutory requirement that the Department not impose on private companies stricter requirements than it adheres to without exception, the Department requires that private companies transporting offenders not exceed a ratio of one agent to six violent prisoners. The Department believes that this ratio provides a security level consistent with congressional intent but without imposing an elaborate set of multi-tiered ratios, compliance with which would be complex for private entities lacking the Department's resources. The Department further believes that the circumstances under which it transports prisoners with a ratio less stringent than one to six are fully justified by the additional security precautions that the Department takes that will not be imposed upon private companies. The Department recognizes that the private prisoner transport industry may experience significant variations in the carrying capacity of vehicles used, the number of prisoners transported per trip, and the security levels of the prisoners being transported. The variation among these factors may complicate the construction of a workable guard-to-violent-offender ratio. In the proposed rule, the Department sought input from industry, law enforcement, and the public as to the factors that should guide the development of a minimum guard-to-violent-prisoner ratio. The responses that the Department received on the proposed rule are discussed in the “Comments Received” section of this final rule.

The rule requires that private prisoner transport companies comply with certain minimum requirements for employee uniforms and identification. These standards require the wearing of a uniform with a badge or insignia that identifies to the prisoners and others that the employee is a transportation officer. While engaged in the transportation of violent prisoners, private prisoner transport company employees must wear a uniform that clearly identifies them as such. The uniforms should be readily distinguishable in color and style from uniforms worn by Department of Justice personnel who transport violent prisoners. The rule also directs that private prisoner transport companies require their employees to have identification credentials on their uniform that are visible at all times while they are engaged in the transportation of violent prisoners. The identification credentials must have a photograph of the employee that is at least one inch square, and a printed personal description of the employee, including the employee's name, the signature of the employee, and date of issuance. This standard is in accordance with Department regulations that require Department employees to carry proper identification (and a badge under certain circumstances). While Department regulations require its employees to possess proper identification at all times, under the final rule, private prisoner transport company employees will only be required to possess and display proper identification while transporting violent prisoners.

The Act directs the Department to create standards establishing categories of violent prisoners required to wear brightly colored clothing clearly identifying them as prisoners. Congress has observed that a number of violent prisoners have escaped from private prisoner transport companies while wearing civilian clothing. An escaped violent prisoner wearing civilian clothing presents a much more serious risk to the public than an escaped prisoner who is clearly identified as a prisoner. The absence of any requirement for transported prisoners to wear distinctive and brightly colored clothing has unnecessarily hindered law enforcement officers in their search for escaped prisoners. After consulting with representatives of the law enforcement community, the private prisoner transport industry, and the ACA, the Department has determined that the category of prisoners required to wear distinctive prisoner uniforms should consist of all violent prisoners covered by the Act. Therefore, this rule requires all violent prisoners transported by private prisoner transport companies to wear distinctive clothing that clearly identifies them as prisoners. As currently defined, this category is sufficiently broad to encompass those prisoners who may constitute a threat to public safety without requiring private companies to conduct intensive individualized risk assessments for each prisoner transported. This rule will not prohibit or in any way impede the ability of private prisoner transport companies to require the wearing of uniforms by some or all other prisoners. In the proposed rule, the Department specifically requested comments from interested parties as to whether it would be beneficial to broaden or narrow the category of prisoners required to wear such clothing. The Department recognizes that there are circumstances when it may be inappropriate or impractical to transport violent prisoners in distinctive brightly colored clothing ( e.g. , traveling on commercial aircraft, to a court appearance, or in the case of a particular physical disability). In keeping with the intent of the Act, any exceptions to the prisoner clothing requirement will be narrow. The Department sought comment from the public, law enforcement, and industry as to what types of security or other specific considerations may warrant exceptions to the prisoner clothing requirement. Nothing in this final rule will supersede any applicable Federal Aviation Administration or Transportation Security Administration rules or regulations concerning the transportation of prisoners on commercial aircraft. The responses that the Department received on the proposed rule are discussed in the “Comments Received” section of this final rule.

The Department agencies that transport violent prisoners have similar policies governing the type of restraints that must be used on violent prisoners during transportation. Violent prisoners, and those defined by the BOP to be “Maximum Custody” prisoners, are to be transported in handcuffs, leg irons, and waist chains. This final rule applies this standard to private prisoner transport companies. Violent prisoners are to be transported in handcuffs, leg irons, and waist chains unless the use of all three restraints would create a serious health risk to the prisoner, or unless extenuating circumstances make the use of all three restraints impracticable. Examples of such exceptions would include the pregnancy or physical disability of a violent prisoner. In the proposed rule, the Department sought comment on additional restraint requirements. The responses received are discussed in the “Comments Received” section of this final rule.

When a prisoner transport vehicle is stopped, the risk of escape is greatest because prisoners may be boarding or exiting the vehicle and guards may be distracted while getting food, fueling the vehicle, or attending to medical or other emergencies. In the Act, Congress found that the private prisoner transport process can last for weeks as violent prisoners are dropped off and picked up at a network of hubs nationwide. Because each stop involves a potentially high security risk, Congress has imposed a requirement that when transporting violent prisoners, private prisoner transport companies are to notify local law enforcement officials 24 hours prior to a scheduled stop in their jurisdiction. For the purposes of this rule, a “scheduled stop” is defined as a predetermined stop at a State, local, or private correctional facility for the purpose of loading or unloading prisoners or using such facilities for overnight, meal, or restroom breaks. Scheduled stops do not include routine fuel stops or emergency stops. Notice is to be given to law enforcement officials prior to these scheduled stops to ensure that the risk of a prisoner escaping is as small as possible. There is no comparable requirement for Department agencies to provide advance notice of scheduled stops because the transporting agency is a law enforcement entity. Any emergency or other disturbance may be instantaneously reported to other law enforcement entities through the Emergency Alert System that links all BOP buses with the central office. There is no need for BOP buses to relate their location to local law enforcement because the BOP central office is able to locate the bus via the Global Positioning System that is installed on each BOP bus. The rule does not require that the use of specific technological equipment be required of private prisoner transport companies, such as the installation of a satellite tracking system that is linked to law enforcement. However, the rule requires that notice of scheduled stops be given to local law enforcement 24 hours prior to the stop.

In the event of the escape of a violent prisoner, the private prisoner transport company must immediately notify appropriate law enforcement officials in the jurisdiction where the escape occurred, and also contact the governmental entity or the privately run incarceration facility that contracted with the transport company. Private prisoner transport companies should be sufficiently equipped to provide immediate notification to law enforcement in the event of a prisoner escape. Law enforcement officials must receive notification no later than 15 minutes after an escape is detected unless the company can demonstrate that extenuating circumstances necessitated a longer delay. Congress imposed this requirement because there was at least one occasion when a violent prisoner's escape from a private transport company was not reported to law enforcement until hours after the escape was detected. Such a delay placed the public at risk and irreparably harmed the ability of law enforcement to secure the area, establish roadblocks, conduct intensive searches in the vicinity, notify the public about the possibility of danger, and identify relevant witnesses who could have aided in the capture of the prisoner. All Department agencies that transport violent offenders have guidelines that require providing notice to other law enforcement agencies in the event of a prisoner escape during transit. The USMS regulations require that prisoner escapes and attempted escapes immediately be reported to the United States Marshals Communications Center and the U.S. Marshal, Chief Deputy U.S. Marshal, or Supervisory Deputy U.S. Marshal. The United States Marshals Communications Center then notifies the Investigative Services Division and the Prisoner Services Division of the USMS. Similarly, in the event of a prisoner escape from a BOP vehicle, the BOP is required to contact the USMS and the nearest BOP institution, which then begin notifications up the chain of command as necessary. State and local law enforcement will also typically be contacted. Department agencies have adopted a uniform rule in the event of a prisoner escape that the first priority is to secure the remaining prisoners and transport them to their final destination. Under no circumstances will the supervision of the other inmates be relaxed in order to pursue an escaping inmate.

Congress has determined that private prisoner transport companies must provide standards of safety for violent prisoners in accordance with applicable Federal and State law. Department agencies have implemented extensive requirements to ensure the safety of violent prisoners who are transported. In addition to the protections provided by existing State and Federal laws, the Department requires that private prisoner transport companies adopt some of the safety measures that Department agencies have adopted including: requiring safety equipment on buses (including first-aid kits); inspection and maintenance of vehicles; requirements for communications systems on vehicles; prohibitions on any form of tobacco use in vehicles; and requirements that prisoners be searched and restrained in a professional, systematic, methodical, and consistent manner. Similarly, Department agencies engaged in prisoner transport have procedures to conduct searches of vehicles and prisoners as needed to ensure that no contraband or weapons are brought onto the vehicle. To protect the safety of prisoners, Department personnel are rigorously trained in the proper use of firearms and the appropriate use of force. Also, to protect prisoners, appropriate forms and records must be filed prior to the use of specialized restraints on a prisoner and after a strip search that occurs for reasons other than receipt of a new prisoner (this report documents the identity of the prisoner searched, date, place, time, and duration of the search, reason for the search, names of those present, and a description of any weapons, evidence, or contraband found).

Several transport companies suggested that since they already conduct National Crime Information Center (NCIC) background checks on employees, it is unreasonable to require each company to conduct additional background checks to comply with the Act. They also requested that the rule allow for a discretionary period pending the background check so that employers may begin hiring and training potential employees.

The Department recognizes the need for transport companies to hire and train employees in a timely manner. However, the Act requires potential employees to pass a preliminary fingerprint-based criminal background check prior to employment, and these regulations conform to the Act. Therefore, it would be premature and unnecessary for companies to proceed with hiring and training employees prior to knowing the results of the background check. Further, the fact that at least one commenting private company already conducts NCIC background checks does not relieve that company or other transport companies from the responsibility to conduct the background checks required by the Act.

One commenter suggested that language be included in the final rule to address situations where a private prisoner transport company contracts directly with a privately run incarceration facility rather than a governmental entity. The Department has adopted this comment and clarified the final rule on this point.

There was large support in favor of a rule requiring 100 hours of pre-service training. Additionally, there were some requests to require that companies (1) obtain commercial drivers licenses for uniformed employees, and (2) complete an advanced first aid course for uniformed employees.

The Department has no objection to private companies requiring that their drivers have commercial drivers licenses. However, the Act does not require commercial licenses and the Department does not believe it is necessary to achieving the purposes of the Act to impose a driving qualification requirement beyond that which was specified in the Act ( i.e. , that defensive driving be included in the 100 hours of pre-service training).

A commenter asked for an exception from the pre-service requirements for employees who have graduated from a recognized law enforcement academy.

The Department understands that law enforcement academies provide much of the basic training for most law enforcement officers, and this training is similar in nature to the training required under the 100 hours of pre-service training requirement. However, the Act does not make any exception from its training requirement for individuals who may have been trained at law enforcement academies as law enforcement officers. The focus of the pre-service training prescribed by the Act is on the transportation of prisoners; a focus which might be different from that of law enforcement academies. Therefore, it is necessary to require that uniformed officers undergo 100 hours of pre-service training before they begin transporting prisoners.

One commenter requested that the Department adjust the 10-hour driving limitation to 12 hours. Further, some companies disagreed with the hours-on-duty requirement asserting that most delays occur while waiting to pick up prisoners at the detention facilities.

Pursuant to regulations of the Department of Transportation (DOT), Federal Motor Carrier Safety Administration at 49 CFR 395.3, no driver may continue to drive more than 10 hours following 8 consecutive hours off duty. The Act requires that the implementing rules shall not be more stringent than the current applicable rules and regulations concerning hours-on-duty. In promulgating this rule, the Department defers to the expertise of DOT regarding the maximum amount of time that drivers should continue to drive. Accordingly, the 10 hours following 8 consecutive hours off duty requirement set forth in DOT's regulations is being used in this rule. In addition, DOT's regulations already take into account waiting periods, such as those referenced by some commenters, by distinguishing between driving time and waiting time. Should a delay occur in picking up a prisoner, the time the private transport company employee waits will count toward the 15 hour on-duty limitation, not the 10 hour driving limitation. The Department does not believe there is sufficient justification for deviating from DOT's regulations.

One commenter claimed that the guard-to-prisoner ratio is inadequate at one to six and took issue with the Department's hesitancy to impose multi-tiered ratios because “compliance * * * would be complex for private entities lacking the Department's resources.” (66 FR 64938). Specifically, the commenter believed that the Act did not prohibit establishing a ratio of one to six, with an additional provision that there should never be less than two guards on duty at one time. The Department declines to adopt the commenter's suggestion that these regulations require a minimum of two guards because section 4(b)(4) of the Act requires that the ratio “shall not exceed a requirement of 1 agent for every 6 violent prisoners” and requiring a minimum of two guards would, under some circumstances, exceed the statutory maximum ratio. Another commenter requested that the ratio requirement be changed when transporting prisoners by bus to a 1 to 8 ratio. Another commenter also pointed out that federal law enforcement agencies' ratios are less strict for violent prisoner transport and that private industry standards should be the same as federal law enforcement agencies. As discussed more fully in the supplementary information portion of the proposed rule, the Department considered a range of options regarding the guard-to-prisoner ratio. Compliance with such guidelines would likely be burdensome and require stricter standards than the Department adheres to without exception. Although, sometimes, the Department's ratio is less strict than the one-to-six ratio referred to in the Act, the Department's own excellent record in transporting prisoners safely and securely with ratios lower than one guard to six prisoners is due in large measure to the extensive training that custodial and transport personnel receive (training that greatly exceeds the maximum training that the Department is permitted to require by regulation), to the carefully designed physical configuration of the transport vehicles, and to the elaborate procedures set forth in the Department's guidelines.

Further, the Department continues to be of the opinion that a multi-tiered approach that the Department follows for conducting its own transport of prisoners would be administratively burdensome for private companies and require them to obtain information about each prisoner (such as their escape risk or security classification) that they are not at present likely to receive from the committing authority.

One commenter pointed out that since there have been many impersonations of officers in illegitimate uniforms, uniforms should clearly state the name of the transport company, and not imply they are “sworn peace officers.”

The rule requires that the uniforms of private prisoner transport company employees be readily distinguishable in color and style from uniforms worn by Department of Justice personnel who transport violent prisoners. Many State and local jurisdictions have parallel requirements that prohibit private security services and others from wearing uniforms too similar to those worn by State and local law enforcement officers. The Department does not believe that changes to the final rule that would impose additional requirements on private prisoner transport companies regarding the uniforms their employees wear are warranted.

Another commenter disagreed with the requirement to display personal information (name badges) on uniforms since prisoners then have access to the personal information of the employees. Employees already carry identification cards and can show their credentials to the appropriate personnel during transportation.

The rule only requires that the identification cards display a one inch square employee photograph, the employee's name, signature, description, and date of issuance. No personal information such as the employee's address, phone number, or social security number appear on the identification. Inclusion of the name on the front of the identification provides a simple means for prisoners and the general public who come in contact with the employees to identify them without providing excessive personal information.

Several commenters pointed out that climate was a large factor during transportation and that uniforms should adapt to the climate encountered during transportation ( e.g. , temperature, snow, rain, wind chill, etc.).

There is no reason why transporting companies cannot provide prisoners with appropriate clothing for varying climates as long as the clothing provided is consistent with the Act (brightly colored and clearly identifying them as prisoners).

One commenter requested that the uniform requirement be waived during neighboring county transportation, since changing in and out of identifiable uniforms may take longer than the actual transportation.

Since the intent of the Act requires exceptions to the clothing requirement to remain relatively narrow, the Department believes it would be contrary to the intent of the Act to waive the requirement that uniforms be worn during short distance or county-to-county transfers.

Another commenter requested that law enforcement agencies determine who violent prisoners are for private transportation companies since they may be unable to adequately determine this on their own.

The Act and regulations define violent prisoners and the Department knows of no basis for the proposition that the companies cannot apply the definition to their charges.

Another commenter disagreed with the requirement that prisoners be required to wear identifying clothing since most law enforcement agencies do not require this until after prisoners are processed and charged formally in a jurisdiction following transportation or extradition.

Again, the intent of the Act requires exceptions to the clothing requirement to remain relatively narrow, and accordingly the Department declines to modify the final rule on this point. The purpose of the Act is clearly furthered by requiring all violent prisoners to wear such clothing.

Another commenter noted that most companies already own uniforms for prisoners, and disagrees with the regulation requiring identical identifiable uniforms.

The Department has adopted this suggestion and is not including a requirement for a standardized uniform. This change allows private transport companies more flexibility to develop their own prisoner uniforms. The private companies must still follow, however, the standard of “brightly colored clothing clearly identifying them as prisoners.”

Finally, one commenter noted that prisoners on commercial airlines should be transported in civilian clothing so as not to attract undue attention from passengers.

The Department notes that the rule already recognizes that prisoner transportation via commercial aircraft is one of the narrow exceptions to the uniform requirements.

Several commenters noted that prisoner restraints during transportation are uncomfortable and cause health problems. One commenter suggested removing the waist-chain during transport.

The Department believes this determination should be placed in the hands of the prisoner transport employee, in the context of a particular prisoner and the transportation circumstances, to determine whether the waist-chain is posing a health risk and could be safely removed while still providing an appropriate level of security.

One commenter requested that prisoner restraints be removed during sleeping arrangements and for eight hours every 48 hours.

The Act contains no language or requirements concerning prisoner restraint removal, and the Department believes that to require such a policy, absent specific congressional direction, might place an undue burden on private transport companies. The Department notes, however, that private transport companies must ensure the safety of the prisoners they transport.

One commenter noted that most local law enforcement agencies do not provide companies a means of housing prisoners overnight during transportation and that this problem should be addressed in the new rule.

The Act does not impose any requirements on local law enforcement to provide overnight accommodations for prisoners being transported. Accordingly, this rule imposes no such requirement.

One commenter noted that schedules change during the course of transportation and the 24-hour notice requirement is too rigid.

The Department has no discretion to adopt a different notification policy than is explicitly required by the Act, and therefore the final rule makes no change from the proposed rule on this point. The Department emphasizes that the 24-hour notification requirement was designed to protect public safety and should not be an excessive burden on private transportation companies.

One commenter noted that “predetermined” stops are too general and can be manipulated. The commenter suggests that notification should be required if a “non-predetermined” stop exceeds five hours.

A “scheduled stop” is defined as a predetermined stop at a State, local, or private correctional facility for the purpose of loading or unloading prisoners or using such facilities for overnight, meal, or restroom breaks. Scheduled stops do not include routine fuel stops or emergency stops. Notice is to be given to law enforcement officials prior to these stops to ensure that the risk of a prisoner escaping is as small as possible. The Department believes this definition is sufficiently clear while allowing necessary flexibility for transport companies. However, without imposing a rigid requirement, the Department recognizes the concerns of the commenter and encourages transport companies to provide notice to law enforcement officials for non-scheduled stops that exceed a reasonable time under the circumstances.

Commenters indicated a general level of support regarding immediate notification in the event of an escape.

One commenter suggested that it should be mandated that all new prisoner transport vehicles be equipped with satellite tracking systems.

The Department considered this requirement during the preparation of the proposed rule. However, such a requirement was not established by the Act and the Department declined to include such a requirement because the cost associated with such a requirement outweighed the potential benefit.

Another commenter requested that: (1) Vehicles should comply with General Services Administration (GSA) fleet maintenance requirements; (2) any incident involving the use of force by an employee should be documented in a standard format and submitted to the Department; (3) in the event that any prisoner develops a serious medical condition during transportation that threatens life or limb he or she must be immediately transported to the nearest hospital or health facility; and (4) stops during transport should be made every five hours to allow prisoners to eat and use restroom facilities.

There is no language in the Act mandating that private transportation company vehicles comply with GSA standards for maintenance. Currently, State, local, and Federal protections against the use of force, as well as State and local safety and maintenance requirements, apply to private prisoner transport companies and their employees and should be adequate in order to provide for the safety of the prisoners being transported. A mandatory stop requirement every five hours is not enumerated in the Act and the Department declines to adopt such a policy. However, while not imposing a rigid requirement for periodic stops, the Department is amending this final rule to make clear the responsibility for private transport companies to take reasonable measures to insure the well being of prisoners in their custody.

This rule is designed to have the lowest possible impact on businesses that transport violent prisoners while still protecting the safety of the public. This final rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. § 804, and it will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

By this rule, the Department is implementing the requirements of the Act, which impose minimum security and safety standards upon private companies transporting violent offenders. The Act's requirements, as implemented by these regulations, may increase the operating costs of some of these private companies. While State and local governments are the primary entities that contract with private prisoner transport companies, this final rule does not impose any direct requirements upon State or local governments or upon their law enforcement offices. The Act requires potential private company employees to undergo a background check. Federal law does not permit dissemination of criminal history records to private employers for screening unless statutorily authorized. Because current statutory law does not grant private entities the authority to request Federal criminal history records, the private prisoner transport companies must arrange to do so with the contracting State or local government. Therefore, to effectuate Congress' intent, this rule suggests private prisoner transport companies arrange with the State or local law enforcement agency with which they are contracting to obtain a fingerprint-based background check of their employees or potential employees. Local law enforcement agencies routinely provide fingerprinting services for various public purposes ( e.g. , teacher applicants and bar examinations). If a governmental agency wishes to contract its prisoner transport obligations out to a private company, it will need to make arrangements for submitting the applicant's fingerprints to the FBI to conduct a criminal history background check on the applicant. The governmental agency submitting the fingerprints would incur the initial financial responsibility associated with these applications. The cost of the background check is determined by individual State procedure, not Federal procedure, and thus will vary from State to State. The Department has been informed that such application fees range from $14 to $95. However, even assuming the highest fee, the Department does not anticipate that this requirement will have a significant financial affect on State or local entities. Because of Federal limitations upon dissemination of background information, the Department does not believe that there are other viable options that would allow private companies to meet the background investigation requirement. The Department has no evidence to indicate how much of any possible cost increases upon private businesses—from mandatory background checks or any other requirements imposed by this rule—will be passed along as price increases to the State and local jurisdictions contracting with them. However, because of the relatively small number of private prisoner transport companies and the number of people employed by these companies, the Department believes that this rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments.

The Department has reviewed this rule in light of Executive Order 12866, section 1(b), Principles of Regulation. The Department has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and, accordingly, this rule has been reviewed by the Office of Management and Budget.

In particular, the Department has assessed both the costs and benefits of this rule as required by Executive Order 12866, section 1(b)(6), and has made a reasoned determination that the benefits of this regulation justify its costs. Briefly, that assessment is as follows:

The costs that the Department considered included the costs of the various tangible items required by the Act relative to the transport of violent prisoners ( e.g. , handcuffs, waist chains, prisoner and guard uniforms, etc.) and the various non-tangible items ( e.g. , the pre-employment physical required by section 97.11.) Further, provisions of the Act and of these regulations impose what might be collectively described as business practices requirements. Examples are the provisions at section 97.11 (requiring a pre-employment interview), at section 97.13 (establishing maximum driving time), and at section 97.14 (establishing a guard-to-prisoner ratio).

The overriding purpose of the Act and of these regulations is to protect the public safety and welfare by preventing the escape of violent prisoners being transported by private companies or, in the event of an escape, to make a prompt re-capture more likely. Escaped violent prisoners can pose a serious danger to the lives and physical well being of individuals and of law enforcement officers and can be a risk to property (such as automobiles) stolen by them to facilitate their escape. Balanced against the costs to the public of death, personal injury, or property damage likely to result from escaped violent prisoners and the resources expended by State and local law enforcement in the re-capture of such prisoners, the burdens imposed by these regulations appear to the Department to be justified by the benefits.

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

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

This rule imposes no new information collection requirements.

The Department drafted this rule in a way to minimize its impact on small businesses while meeting its intended objectives. At several places in the proposed rule, the Department specifically requested information from affected entities. This information was requested, in part, to assist the Department in determining the nature and extent of the impact the final rule will have on affected entities. Although the Department received some comments, the information it received was not sufficiently detailed to allow it to state with certainty that this rule, if promulgated, will not have the effect on small businesses of the type described in 5 U.S.C.§ 605. Accordingly, the Department has prepared the following final Regulatory Flexibility Act analysis in accordance with 5 U.S.C. § 603.

This final rule will implement the Act, which requires the Attorney General to establish regulations imposing minimum safety and security standards on private companies engaged in transporting violent prisoners for State and local jurisdictions. The Act reflects Congress' concerns about the growing number of State and local jurisdictions that are utilizing the services of private companies as an alternative to sworn law enforcement officers when transporting violent prisoners. Congress found that violent prisoners have escaped from private transport companies and that these escapes have led to further crimes committed by the escaped prisoners as well as significant expenditures by law enforcement units attempting to capture the escapees. As a result of these findings, Congress determined that it was necessary to regulate the private prisoner transport industry in order to enhance public safety. Congress required that the Department consult with the ACA and the private prisoner transport industry in promulgating these regulations. Details concerning these consultations are set forth in the proposed rule. 66 FR 64934, 64941.

A “small business” is defined by the Regulatory Flexibility Act (RFA) to be the same as a “small business concern” under the Small Business Act (“SBA”), 15 U.S.C. § 32. Under the SBA, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the SBA  1 . As the demand for transporting prisoners increases, local and State governments find themselves unable to handle all their transportation needs. Therefore, these governmental entities enter into contracts with private companies to provide for the transportation of their violent prisoners.

Based upon the information available to the Department at present, there appear to be two distinct groups of businesses in the private prisoner transport industry: larger companies that contract with various jurisdictions nationwide, and smaller entities often made up of a few individuals who provide transportation for law enforcement departments on an as-needed basis. Both groups of private transport companies would be regulated by this rule and both fall under the definition of a “small business” pursuant to the RFA. The discussion in this section will first focus on the larger companies involved in transporting violent prisoners and then examine issues specific to the smaller companies.

In passing the Act, Congress specifically called upon the Attorney General to consult with the ACA and the private prisoner transport industry. During these consultations, the Department learned that there are approximately 10 to 12 larger private prisoner transport companies currently operating in the United States. However, there is no public or private entity that monitors when a private prisoner transport business enters or exits the industry. Therefore, it is difficult to accurately estimate the number of industry participants. The Department has drafted this rule to have the minimum possible impact on these businesses while still complying with the intent of the Act. During the Department's consultations, it was informed that many of the minimum standards contained in this rule are already followed by the larger companies. In some instances, the larger industry participants have actually adopted more stringent internal standards than those that would be imposed by the rule. Where the rule requires companies to implement a practice not currently followed, industry opinion was taken into consideration so as to impose no greater burden than necessary.

In addition to the larger private companies that transport prisoners, the Department believes that there is a large number of smaller entities that contract with State and local authorities to transport prisoners. Although the Department does not have an exact number of smaller companies, the ACA and industry leaders estimated that 500 such entities may exist. The Department was informed that these entities are often composed of merely one or two people who enter into contracts with sheriffs' offices on an as-needed basis. It is therefore difficult to address the impact that the regulation would have on the smaller participants in the industry without knowing approximately how many of these smaller entities transport violent prisoners (and therefore would be regulated) or what their current safety and security practices are. However, the Department is concerned that these smaller companies will experience the greatest impact as a result of these regulations. For example, a minimum standard that imposes a ratio of at least one guard for every six violent prisoners might be a greater burden to a smaller entity that lacks the personnel resources of a larger company. Similarly, the need to possess a sufficient amount of specialized equipment, as required by these regulations, could create a greater economic burden on smaller entities.

In section 3(2) of the Act, Congress specifically exempted from the minimum standards any Federal, State, or local governmental entity engaged in the transport of violent prisoners. The rule does not regulate these entities. However, the Department is cognizant of the possibility that these regulations may place a burden on small governmental entities that contract with private prisoner transport companies. The Department therefore consulted with the National Sheriffs' Association and the American Jail Association, as well as representatives from local police departments, to gain a better understanding of the impact this rule will have on their operations. In addition, the Department requested comments from these entities in the proposed rule and received a comment from the National Sheriffs' Association, which indicated its full support for the regulations as proposed.

Some of the minimum standards established by this rule might require private companies to purchase various pieces of equipment, thereby causing an increase in expenditures. The standards regarding mandatory restraints, uniforms for agents, identification credentials for agents, and uniforms for violent prisoners fall into this category. By imposing these standards, companies that are not already in possession of these items, or not in possession of a sufficient quantity, would have to purchase them in order to satisfy the requirements of the regulations. However, after consulting with representatives from the industry, the Department believes that the rule will not have a significant economic impact on the larger entities in the private prisoner transport industry. With the exception of prisoner uniforms, all companies consulted indicated that they currently require the use of all equipment specified in this rule. The companies currently use hand-cuffs, leg chains, and waist chains, and all agents are issued uniforms and possess credentials. Therefore, this rule will not propose any new standards that require extra expenditures. Indeed, the private companies consulted by the Department indicated that, in many instances, they require more equipment than the rule requires. For example, many of the companies require “black boxes” on their restraints in order to prevent a prisoner from picking the lock. In addition, many of the companies require their agents to have Global Positioning Systems in their transport vehicles, a feature that goes well beyond the standards required by this rule. The larger companies in the industry do not currently require prisoner uniforms for all violent prisoners. This rule implements a mandatory provision of the Act that requires violent prisoners to be transported in brightly colored clothing that clearly identifies the wearer as a violent prisoner. Because there is no current policy on prisoner attire, this standard would require companies to invest in a sufficient number of prisoner uniforms. Since the Department received no responses to its request in the proposed rule for comments on the advantages of a standardized uniform, the Department does not establish a standardized uniform in this final rule.

This rule requires private companies to train their employees in six enumerated areas for a minimum of 100 total hours of training before the employee may transport violent prisoners. This standard might require private companies to incur the cost of training where their current practices fail to meet the standard. Companies would need to engage qualified instructors with the ability to properly train personnel. However, all of the companies consulted by the Department currently have training procedures in place, many of which are more extensive than those required by the proposed rule. Most of the companies indicated that they require firearms training equivalent to the training received by law enforcement officers. In addition, all of the companies consulted require their personnel to undergo follow-up training during the course of employment. It is therefore unlikely that the new training standards will have a significant impact on the larger industry participants.

The rule requires a minimum ratio of one guard for every six violent prisoners during transport. It is possible that this standard would require companies to increase their personnel in order to meet the mandated ratio. However, most of the larger companies from which the Department received comments and other information indicated that they already impose minimum guard-to-prisoner ratios, all of which are more stringent than the one established in this rule.

Many of the minimum standards in this rule will place affirmative duties on private prisoner transport companies. The standards dealing with pre-employment background checks and drug testing, notification of local law enforcement 24 hours before scheduled stops, and immediate notification of law enforcement should an escape occur all fall into this category. Of these, only the first standard regarding conducting background checks and drug testing carries with it the possibility of significantly increased expenditures. While the notification requirements in this rule do place an affirmative duty on the companies, they do not impose any significant economic burden on the companies. For example, § 97.20(b) requires that vehicles be equipped with a communications system capable of immediately notifying officials of an escape. This requirement could be met by something as simple as a cellular telephone. However, the Department acknowledges that not all areas have cell phone service, and therefore companies may be forced to use a more expensive alternative in those areas.

The Department does not have any specific information about how much of an economic impact this rule might have on the smaller industry participants in the foregoing areas: specialized equipment, training, personnel, background checking, and drug testing. However, it is reasonable to assume some aspects of this rule may have a proportionately larger economic impact upon small entities. For example, this may be the case with respect to equipment purchases where, typically, the larger the quantity purchased, the lower the per unit cost becomes. Given the inexpensive nature of handcuffs, leg irons, and waist chains, however, the additional cost burden should not be significant, especially because private prisoner transport companies are likely already to possess this equipment. With respect to the training requirements, there may be a greater impact on a small prisoner transport entity that might have only one or two employees. Such an entity might temporarily have to suspend operations while its agents undergo training. On the other hand, a larger entity with more employees might be able to continue operations while its employees rotate through training. Similarly, it might be easier for larger entities to meet the minimum guard-to-prisoner ratio than it would be for smaller entities. It should be stressed, however, that in promulgating these regulations, the Department is merely implementing the requirements of the Act and that it has attempted to do so with the least economic impact upon any entity, large or small.

This rule does not impose any additional reporting or recordkeeping requirements on private prisoner transport companies or on the State and local entities that contract with them.

While consulting with representatives of the larger companies, the Department was apprised of an issue concerning the impact that this rule would have on sheriffs' departments that employ private companies to transport violent prisoners. According to information provided to the Department, many of the local law enforcement offices across the nation employ smaller entities to transport prisoners, not the major companies, when the need arises. The Department, however, cannot exempt these smaller entities from the standards because they clearly fall into the definition of “private prisoner transport company” provided by Congress in the Act. It is important to note that this rule does not impose any minimum standards on governmental entities nor on their employees engaged in official conduct. However, the Department acknowledges the possibility that these entities may be indirectly affected in contracting with private companies.

An alternative suggestion was made during a consultation meeting between the Department and industry representatives concerning whether the Department should provide more guidance as to the quality of training required by this proposed rule. It was suggested that an association, such as the ACA, should develop an accredited training program and that any final rule should require private companies to receive accreditation from such a specified program. However, under constitutional delegation principles, the Department would need to approve the standards recommended by the private entity and such standards would be subject to notice and comment. Therefore, while the Department believes that this suggestion is worth further consideration, the Department declines at this time to impose any requirements regarding the quality of training. A second alternative that was suggested pertained to the requirement that private companies notify local law enforcement when traveling through a jurisdiction. Initially, the Department intended to require 24-hour advance notification to local law enforcement of any scheduled stop within a jurisdiction, with “scheduled stop” broadly defined. However, it was suggested during the Department's consultations with law enforcement and industry leaders that the definition of “scheduled stop” should be more narrowly defined. Law enforcement groups and industry leaders agreed that if a transport company had to provide notification for any stop, including for such things as refueling, eating, and bathroom trips, the notification requirement could pose a security threat. Therefore, the Department has construed more narrowly the definition of “scheduled stop” so that the regulations apply only to predetermined stops at State, local, or private correctional facilities for the purpose of loading or unloading prisoners, or using such facilities for overnight, meal, or restroom breaks. The Department believes such a definition is consistent with Congress' intent in using that phrase and its meaning under the Act. A third alternative was suggested that would have delayed the implementation and enforcement of these provisions to allow smaller entities a longer period in which to comply with the new regulations. The Act provides no authority for delayed implementation or delayed enforcement of the new regulations. It is the Department's view that public safety would be most effectively protected if these minimum safety and security standards are applied to all private prisoner transportation companies equally, without regard to the size of the company.

The Department believes that, given the mandatory nature of the Act, this rule meets its stated objectives while reducing as much as possible the burden imposed on private companies engaged in the private transport of violent prisoners. As statutorily required, the Department consulted with industry leaders and the ACA in developing this rule. The Department took into account their concerns, as well as the concerns of law enforcement representatives, in drafting the rule. The Department intends to maintain an on-going dialogue with the affected industry and law enforcement entities.

On December 12, 2002, we (MSHA) published in the Federal Register (67 FR 76658) an Emergency Temporary Standard on Emergency Evacuations. In a separate document, the Office of the Federal Register has corrected a printing error in the regulatory text: On p. 76665, third column, next to last line of the last paragraph, the Federal Register has corrected “(a)(1)” to read “(a)(1) through (4)”. The preamble contained errors; therefore, we are correcting the preamble to the rule as follows:

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

•  Crop production (NAICS code 111)

•  Animal production (NAICS code 112)

•  Food manufacturing (NAICS code 311)

•  Pesticide manufacturing (NAICS code 32532)

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

1. Docket. EPA has established an official public docket for this action under docket identification (ID) number OPP-2002-0276. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

2. Electronic access. You may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr180_00.html, a beta site currently under development.

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

This direct final rule is issued pursuant to section 408(e) of the Federal Food Drug and Cosmetic Act (FFDCA), as amended by the Food Quality Proctection Act (FQPA) (21 U.S.C. 346a(e)). Section 408 of FFDCA authorizes the establishment of tolerances, exemptions from the requirement of a tolerance, modifications in tolerances, and revocation of tolerances for residues of pesticide chemicals in or on raw agricultural commodities and processed foods. Without a tolerance or tolerance exemption, food containing pesticide residues is considered to be unsafe and therefore, “adulterated” under section 402(a) of the FFDCA. If food containing pesticide residues is found to be adulterated, the food may not be distributed in interstate commerce (21 U.S.C. 331(a) and 342 (a)).

EPA is issuing this action as a direct final rule without prior proposal because the Agency believes that this action is not controversial and is not likely to result in any adverse comments. This action removes four exemptions from the requirement of a tolerance for the pesticide chemical, urea. These tolerance exemptions are not necessary.

In a companion final rule published in today's Federal Register, the Agency discussed the reasons and rationale for establishing a tolerance exemption for urea in 40 CFR 180.950. Given the establishment of this unlimited tolerance exemption, the tolerance exemptions for urea in 40 CFR 180.1001 (c), (d), and (e) and 180.1117 are no longer needed. Therefore, the Agency is removing these exemptions. No uses are lost through the removal of these tolerance exemptions. All uses are covered under the tolerance exemption established today in 40 CFR 180.950.

1. In 40 CFR 180.1001 (c) and (e), there are two exemptions from the requirement of a tolerance for urea. These exemptions are restricted to use as a stabilizer and inhibitor.

2. There is an exemption from the requirement of a tolerance for urea in 40 CFR 180.1001 (d). This exemption is for its use as an adjuvant/intensifer for herbicides.

3. Another exemption from the requirement of a tolerance is listed in 40 CFR 180.1117. This tolerance exemption was established for residues of urea when used as a frost protectant in or on the following raw agricultural commodities when used before harvest in the production of: Alfalfa, almonds, apples, apricots, artichokes, asparagus, avocados, beans, bell pepppers, blackberries, blueberries, broccoli, brussels sprouts, boysenberries, craneberries, canola, cantaloupes, carrots, cauliflower, casaba, celery, cherries, chili pepers, chinese cabbage (bok choy, napa), cooking peppers, corn, cotton, crenshaw, cucumbers, figs, grapefruit, grapes, honeydew melon, hops, kiwifruit, kohlrabi, lemons, lentils, lettuce, limes, macadamia nuts, musk melon, nectarines, olives, onions, oranges, peaches, pears, peanuts, peas, persian melon, pistachios, plums, potatoes, pumpkin, prunes, radish, raspberries, rice, safflower, sorghum, spinach, spinach (New Zealand), squash (winter and summer), strawberries, sugar beets, sunflower, sweet pepper, table beets, tangerines, tomatoes, walnuts, watermelon, and zucchini.

Under Executive Order 12866, entitled Planning and Review (58 FR 51735, October 4, 1993), it has been determined that this direct final rule is not a “significant regulatory action” under section 3(f) of the Executive Order, because EPA is removing four tolerance exemptions that are no longer necessary given the publication of the companion final rule that establishes a broader tolerance exemption that will cover these four tolerance exemptions. This direct final rule is not expected to have any adverse impact and does not otherwise impose any new requirements. Since it is not significant under Executive Order 12866, it is not subject to review by the Office of Management and Budget (OMB) under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), or Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001).

This direct final rule directly regulates food processors, food handlers, and food retailers, but does not affect States, local or Tribal governments directly. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). This action will not have substantial direct effects on State or tribal governments, on the relationship between the Federal government and States or Indian tribes, or on the distribution of power and responsibilities between the Federal government and States or Indian tribes. As a result, this action does not require any action under Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), or under Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Nor does it 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 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 Executive Order 12630, entitled Governmental Actions and Interference with Constitutionally Protected Property Rights (53 FR 8859, March 15, 1988).

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).

Under section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Agency hereby certifies that these revocations will not have significant negative economic impact on a substantial number of small entities. The rationale supporting this conclusion is as follows. The rationale here is that we are replacing these exemptions with a broader one.

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 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 . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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

• Crop production (NAICS 111)

• Animal production (NAICS 112)

• Food manufacturing (NAICS 311)

• Pesticide manufacturing (NAICS 32532)

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this table 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 identification (ID) number OPP-2002-0277. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

2. Electronic access . You may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr180_00.html , a beta site currently under development.

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

In the Federal Register of April 7, 2000 (65 FR 18324) (FRL-6499-7), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act (FQPA) (Public Law 104-170), announcing the filing of a pesticide tolerance petition (PP 9E6028) by Ecolab, Inc., 370 N. Wabasha Street, St. Paul, MN 55102. This notice included a summary of the petition prepared by the petitioner Ecolab. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.1001 be amended by establishing an exemption from the requirement of a tolerance for residues of urea in or on raw agricultural commodities, in processed commodities, and in or on meat and meat by products of cattle, sheep, hogs, goats, horses, poultry, milk, dairy products, eggs, seafood and shellfish, and fruits and vegetables when such residues result from the use of urea as a component of a food contact surface sanitizing solution for use in food handling establishments.

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

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. 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 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. The nature of the toxic effects caused by urea are discussed in this unit.

In the Federal Register of April 15, 2002 (67 FR 18197) (FRL-6860-6), the Agency published its report of the Tolerance Reassessment Decision for urea. This Report contained the hazard characterization of urea. For a complete description of the use summary, hazard characterization, exposure assessment and risk assessment findings, see the Notice of April 15, 2002. These data are considered by the Agency to be sufficient to assess the potential hazard to humans, including infants and children.

From the available animal studies and other data, EPA has concluded that urea exhibits a low toxicity and exposures to urea used either as an active or inert pesticide ingredient present a reasonable certainty of no harm to human health.

Section 408(b)(2)(D)(v) requires that, when considering whether to establish, modify or revoke a tolerance, the Agency consider available information concerning the cumulative effects of a particular pesticide's residues and other substances that have a common mechanism of toxicity. Urea is a low toxicity chemical. EPA does not have, at this time, available data to determine whether urea has a common mechanism of toxicity with other subtances or how to include these pesticide chemicals in a cumulative risk assessment.

Based on the available data, EPA concludes that urea does not pose a dietary risk under reasonable foreseeable circumstances. Accordingly, EPA finds that there is a reasonable certainty that no harm will result to the general population, and to infants and chldren from aggregate exposure to urea. Because of the low toxicity of urea, a safety factor analysis has not been used to assess the risk. For the same reason, the tenfold safety factor for the protection of infants and children is unnecessary.

FQPA requires EPA to develop a screening program to determine whether certain substances, including all pesticide chemicals (both inert and active ingredients), may have an effect in humans that is similar to an effect produced by a naturally occurring estrogen, or such other endocrine effect. EPA has been working with interested stakeholeders to develop a screening and testing program as well as a priority setting scheme. As the Agency proceeds with implementation of this program, further testing of products containing urea may be required.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

There are four existing tolerance exemptions for urea. They are as follows: § 180.1001(c), (d), and (e); and § 180.1117. However, in today's Federal Register , the Agency, acting on its on initiative, published a direct final rule revoking these four tolerance exemptions as they are no longer necessary. No uses are lost by revoking the above four tolerance exemptions, as the tolerance exemption established in this rule will cover these uses and the use requested by the petitioner.

The Agency is not aware of any country requiring a tolerance for urea nor have any CODEX Maximum Residue Levels been established for any food crops at this time.

Based on its low toxicity, urea will be classified as a List 4A inert ingredient. List 4A inert ingredients are minimal risk inert ingredients. Minimal risk does not imply no risk under any circumstances. Every substance can present some risk in certain circumstances. Minimal risk is used to indicate a substance for which there is no information to indicate that there is a basis for concern. Thus, the tolerance exemption will be established in 40 CFR 180.950 which holds minimal risk chemicals instead of 40 CFR 180.1001 as requested by the petitioner, Ecolab.

Based on the information in the record, EPA concludes that there is a reasonable certainty of no harm from aggregate exposure to residues of urea. Accordingly, EPA finds that exempting urea from the requirement of a tolerance will be safe.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2002-0277 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 February 24, 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 phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit 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-2002-0277, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.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 FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance 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 FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

EPA is promulgating this as a direct final rule (amending RCRA's definition of solid waste) without prior proposal because it views this as a noncontroversial submittal and anticipates no adverse comments. Also, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document entitled “Proposed Pilot-Specific Rule for Electronic Materials in the EPA Region III Mid-Atlantic States; Hazardous Waste Management System; Modification of the Hazardous Waste Program; Cathode Ray Tubes” that will serve as a proposed rule if adverse comments are filed. The direct final rule will be effective February 24, 2003 without further notice unless we receive adverse comment by January 27, 2003. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

EPA has established an official public docket for this action under RCRA Docket ID No. III-02-OEI-01. 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 EPA Region III Library, 1650 Arch Street, Philadelphia, PA 19103. This Docket Facility is open from 9 a.m. through 4 p.m., Monday through Friday, excluding federal holidays. To review docket materials, it is recommended that you make an appointment by calling Marie Holman at 215-814-5463. You may copy a maximum of 100 pages from any file maintained at the docket at no charge. Additional copies cost $0.15 per page.

You may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/. You can also review some of the supporting documents for the national proposed rule (June 12, 2002, 67 FR 40508-40528) (which supports the regional rule), in electronic format on the Internet at URL: http:/www.epa.gov/epa/epaoswer/hazwaste/recycle/electron/crt.htm.

You may view public comments and the supporting materials for the issues and memoranda discussed below at U.S. EPA Region III Library, 1650 Arch Street, Philadelphia, PA 19103. The library is open from 9 a.m. to 4 p.m., Monday through Friday, excluding federal holidays. To review docket materials, it is recommended that the you make an appointment by calling Marie Holman at 215-814-5463.

Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in I.B.1.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

You may submit comments electronically or by mail. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in I.B.2 and I.D.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. E-mail. Comments may be sent by electronic mail (e-mail) to holman.marie@epa.gov, Attention Docket ID No. III-02-OEI-01. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

ii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in I.B. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send an original and two copies of you comments referencing docket number III-02-OEI-01 to Marie Holman, Office of Environmental Innovation (3EI00), U.S. EPA, 1650 Arch Street, Philadelphia, PA 19103-2029.

Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. This information needs to be submitted under separate cover. Send information (original and two copies of CBI) identified as CBI only to the following address: Marie Holman, Office of Environmental Innovation (3EI00), U.S. EPA, 1650 Arch Street, Philadelphia, PA 19103-2029, Attention Docket ID No. III-02-OEI-01. You may claim information that you submit to EPA as CBI 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.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

This direct final rule is effective on February 24, 2003 without further notice, unless EPA receives adverse comment by January 27, 2003. If we receive such comment, EPA will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect. (Under section 3010 of RCRA, rules may take effect in less than six months if the regulated community does not need the six-month period to come into compliance. That is the case here because the rule reduces, rather than increases, the existing requirements for persons handling used CRTs and glass removed from CRTs sent for recycling. EPA believes that 60 days provides adequate time to come into compliance with the new, less burdensome labeling and other requirements contained in the rule.)

These regulations are promulgated under the authority of Sections 2002(a), 3001, 3002, 3004, and 3006 of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), and as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6912(a), 6921, 6922, 6924, and 6926.

Over the past several years EPA Region III and its states have been working together to improve the management of end-of-life electronics. Representatives of original equipment manufacturers, retailers, transporters, dismantlers, and government agencies have met to identify barriers to successful recycling of end-of-life electronics, and to propose possible solutions. Region III and the states then developed the State-EPA Region III e-Cycling Pilot Project to test different regional approaches. The purpose of the Pilot Project is to significantly increase the number of end-of-life electronics that are recycled and to determine whether the approaches being implemented in EPA Region III's states will achieve this goal.

To help achieve the increased recycling objective, the states in the Mid-Atlantic Region of EPA have agreed to work with local governments having jurisdiction over waste collection activities. Assistance to the local governmental agencies will include the development of outreach materials (such as model press releases, public service announcements, brochures, fact sheets and newspaper advertisements) to gain greater participation in the e-Cycling Pilot Project. It is anticipated that these tools and others will facilitate the collection of end-of-life electronic materials from households, small businesses, and other entities. Some states may provide seed money to local governments to assist them in starting up their collection activities. EPA has also provided funding to assist the Region III states in implementing the Pilot Project. These funds will be used to develop public education and outreach materials, collect pertinent data, and provide general support to the e-Cycling Pilot Project.

It is expected that partnerships with electronic equipment retailers, manufacturers, waste transporters and recyclers will be developed to assist in setting up the infrastructure necessary to transport and recycle these end-of-life electronic materials. For example, several retailers and manufactures already have or are planning “take back” programs to allow their customers to return end-of-life electronics to the place of purchase.

In 2001, the States of Delaware, Maryland, and West Virginia, the Commonwealths of Pennsylvania and Virginia, and the District of Columbia (EPA Region III's states) submitted to EPA Region III's Regional Administrator a proposal for regulatory innovation entitled, “Regulatory Exclusion for End-of-Life Electronic Materials that are Dismantled for Recovery of Useful Elements' (hereafter e-Cycling Pilot Project). This project proposal was submitted under the auspices of the 1998 Environmental Council of States (ECOS) Agreement to Pursue Regulatory Innovations, (FR May 5, 1998, 63 FR 24784-24796). EPA accepted the proposal in a Memorandum of Understanding (MOU) executed by EPA and Region III states in October, 2001. The MOU proposes a framework for managing end-of-life electronics in a way that is environmentally sound while encouraging the reuse and recycling of these materials. The MOU also recognizes the need for EPA to clarify its understanding of when these materials are “discarded” such that they are solid wastes.

To assist in implementing the pilot project, today EPA is promulgating a conditional exclusion from the definition of solid waste for used cathode ray tubes (CRTs) and glass removed from CRTs sent for recycling within Region III. In today's notice, the Agency is also clarifying the status of other “end-of-life electronics” sent for reuse and recycling under RCRA.

As noted above, EPA is currently proposing a similar national rule. EPA has accelerated the regional rule because it believes that the prompt implementation of this rule in the Region III states, building on the existing Region III e-Cycling Project, will produce information about the CRT conditional exclusion that will be useful to EPA as it considers final action on the nationwide rule. EPA expects to withdraw the regional rule if and when a final national rule becomes effective.

The regional rule is narrower in scope. It only includes the conditional exclusion for used CRTs and processed CRT glass. The proposed national rule addresses mercury-containing equipment and export issues; the regional rule does not address these issues. Again, EPA expects to withdraw the regional rule if and when the final national rule becomes effective.

Technological advances in information management and communication have improved the quality of people's lives in countless ways. However, our growing use of electronic products at home and in the workplace has given us a new environmental challenge: electronics waste. Today's rule is an important step towards meeting the challenge of managing electronics waste in a way that is environmentally sound, while encouraging the reuse and recycling of these materials in EPA Region III's states.

EPA estimates that about 57 million televisions and computers are sold annually to households and businesses in the United States. Purchasers of these and other consumer electronics often do not discard older models when buying newer versions of the same products. Consumers (both business and household) frequently store their retired products. Experts agree that the average household may have between two and three television or computer units in storage. The number of units (mainly computers) stored by businesses is much greater. In total, approximately 20 to 24 million computers and televisions are added to storage each year. Over the next decade, storage is expected to increase at a faster rate because of advances in digital technology for televisions. Just as advances in computer speed and software have made older computers uneconomical to repair, newer digital broadcast standards are likely to reduce the repair and resale value of older televisions.

Recycling glass from computers and televisions is still largely a new industry. However, the number of units available for reuse or recycling is growing rapidly, and state and industry initiatives to promote recycling are increasing. EPA is eager to see this industry grow, in part because reusing and recycling these materials saves valuable natural resources and avoids their disposal in landfills and incinerators. The Agency must, of course, assure that materials under RCRA jurisdiction are managed in a way that protects human health and the environment.

EPA's Common Sense Initiative Council recommended streamlined nationwide requirements for CRT glass that is removed from computers and televisions and processed to make new CRT glass. The conditional exclusion promulgated today for “glass-to-glass” processing grows out of these recommendations. The Council included representatives from industry, non-governmental and community organizations, state governments, and academic institutions.

Today, the Agency is promulgating a direct final rule which will revise management requirements for used CRTs and glass removed from CRTs by creating a conditional exclusion from the definition of solid waste for these materials when they are recycled within the EPA Region III states (see 40 CFR 261.4(a)(24)). The purpose of these simplified requirements is to encourage greater reuse, recycling, and better management of this growing waste stream, a problem particularly acute in the Region III states, while maintaining necessary environmental protection.

CRTs are vacuum tubes, made primarily of glass, which constitute the video display components of televisions and computer monitors. CRT sizes are typically measured from one corner; the diagonal of a CRT display generally ranges from 1 to 38 inches. Other types of CRTs include medical, automotive, oscilloscope, and appliance CRTs, which are typically 12 inches diagonal or smaller, while military and aircraft control tower CRTs may be much larger.

CRTs are built of a specialized glass that often contains lead. They consist of four major parts: a glass panel (faceplate); a shadow mask; a glass funnel; and a glass neck which houses the electron gun. The glass panel is the front of the CRT that the viewer sees when looking at a TV or computer screen. The shadow mask is a thin metal sheet with holes that is located immediately behind the glass panel. Attached to the back of the glass panel is the glass funnel. The panel and funnel are joined with the shadow mask and sealed together with a low-temperature glass frit, consisting of solder glass containing organic binders. The back end of the CRT is the glass neck that holds the electron gun. This gun produces the electrons that strike the glass panel, resulting in viewable images on the display surface. A CRT is assembled into a monitor, a unit that includes several other parts, including a plastic cabinet, electromagnetic shields, circuit boards, connectors, and cabling.

Manufacturers generally use significant quantities of lead to make color cathode ray tubes. Televisions and color computer monitors contain an average of four pounds of lead (the exact amount depends on size and make). Lead is present in the panel glass, funnel, neck, and glass frit of color CRTs, with the highest concentrations usually found in the frit and funnel glass. Although the amount of lead used in some manufacturing processes of CRTs appears to be decreasing, most color CRTs contain quantities of lead sufficient to make the discarded CRT glass a hazardous waste under RCRA. Under Subtitle C of RCRA, a solid waste is a hazardous waste if it exhibits one or more of the characteristics of ignitability, corrosivity, reactivity, or toxicity in 40 CFR Part 261, Subpart C, or if it is a listed hazardous waste in Part 261, Subpart D. Of relevance here is the toxicity characteristic, 40 CFR 261.24, which classifies as a hazardous waste any solid waste containing five (5) milligrams per liter (mg/l) or more of lead when tested with EPA's toxicity characteristic leaching procedure (TCLP).

According to a study of CRTs published by the University of Florida, the average concentration of lead in leachate from colored CRT glass generated through EPA's TCLP was 22.2 mg/l. This level is considerably above the toxicity characteristic regulatory level of 5 mg/l that is used to classify lead-containing wastes as hazardous (40 CFR 261.24(b)). For monochrome CRTs, the average lead leachate concentration was 0.03 mg/l. These data appear to indicate that black and white monitors do not generally fail the TC. The faceplate also does not usually fail the TC.

Other hazardous constituents sometimes present in CRT glass are mercury, cadmium, and arsenic. However, these constituents are found in very low concentrations that are unlikely to exceed the TC concentration limits (see Characterization of Lead Leachability from Cathode Ray Tubes Using the Toxicity Characteristic Leaching Procedure, T.G. Townsend et al., University of Florida, 1999). Flat panel displays (FPDs) have emerged on the electronics market as a replacement for CRTs in certain applications, primarily because FPDs are lighter, smaller, and more portable, and they consume less energy during operation. FPDs generally contain no lead, but may contain encapsulated mercury in small amounts.

Many used computers are resold or donated so that they can be used again, either as is or after minor repairs. Although the Agency has no legal jurisdiction over reused computers per se, we encourage this option as a responsible way to manage these materials, because preventing or delaying the generation of waste often conserves resources. This option extends the lives of valuable products and keeps them out of the waste management system for a longer time. Reuse also allows schools, non-profit organizations, and individual families to use equipment that they otherwise could not afford. Many markets for reuse of computers are located abroad, particularly in countries where few may be able to purchase state-of-the-art new equipment.

Organizations which handle used computers vary from area to area. In some cases, nonprofit organizations such as charities and school districts take donations of used computer equipment. These organizations may test the equipment, and, if necessary, rewire it and replace various parts, including the electron gun, before sending them for reuse. In other cases, the entities that collect the CRTs send them to another organization with more expertise for evaluation and possible repair and reuse. CRTs that cannot be used after such minor repairs may be sent to recycling or disposal. CRTs from televisions are more likely to be repaired by appliance dealers or small repair shops before reuse.

If reuse or repair is not a practical option, CRTs can be sent for recycling, which typically consists of disassembly for the purpose of recovering valuable materials from the CRTs, especially glass. A growing number of municipalities are offering to collect computers and electronics for recycling. In addition, public and private organizations have emerged that accept such materials for the same purpose. Examples of such organizations include county recycling drop-off centers, television repair shops, charities, electronics recycling companies, and electronics manufacturers and retailers.

An increasing number of electronics manufacturers are offering to take back computer CRTs for recycling. In some cases, these services are provided free. In other cases, a fee is charged, usually for shipping and handling. Take-back programs have been available for some time to major corporations and large purchasers of electronic equipment. Now, electronics manufacturers are beginning to offer similar services for computer CRTs to small businesses and households.

Makers of glass for CRTs recycle some of the glass they produce because it does not meet product specifications. EPA estimates that about one or two percent of glass production results in unused, off-specification products. This glass is generally recycled into new CRT glass. The glass may be recycled on-site at a CRT glass manufacturing facility, or it may be sent to a glass processor. Computers and television manufacturers also find that a small percentage of assembled monitors are “off-specification.” They may send these unused devices to a glass processor.

CRT glass processors that accept used CRTs generally receive them from three sources: the glass manufacturers described above (who supply most of the glass), manufacturers of monitor units who decide not to sell off-specification monitors, and businesses who provide used computers or televisions, which at present are a much smaller source.

The used CRTs are typically stored in a warehouse. When the processing begins, the CRT display unit is dismantled, and the bare CRT is separated from all other parts (usually glass, plastic, or metal). Next, the vacuum is released by drilling through the anode, a small metal button in the funnel. The different glass portions of the CRT (faceplate, funnel, and neck) are then separated and classified according to chemical composition, especially by the amount of lead contained. The same sorting takes place for broken glass received from CRT glass manufacturers, which is separated into leaded and non-leaded glass. All glass is then cleaned and the coatings removed. The sorted and cleaned cullet ( i.e. , processed glass) is then typically stored in enclosed areas before it is shipped off-site to a CRT glass manufacturer (or sometimes to a smelter or to manufacturers of other kinds of glass). When a CRT glass manufacturing facility receives a shipment of processed CRT glass, it removes the anode button and further crushes the glass, which then enters a furnace to be heated and made into new CRT glass.

Sometimes the processed glass is sent to a lead smelter where it is recycled to reclaim the lead and to provide silica, which acts as a fluxing agent in the smelter. These uses often occur if the glass does not meet the specifications for CRT glass. The cleaning process described above also generates glass fines that are collected and sold to lead smelters to be used as a fluxing agent. In addition, processed CRT glass may be sent to copper smelters, also for use as a flux. Sometimes other types of production facilities use processed CRT glass to make objects such as radiation shielding, acoustical barriers, optical glass beads, or decorative glass and tile products. The market for these recycled glass items is currently limited, but may grow in the future.

Many consumers do not wish to discard monitors and TVs if they can be recycled. Many or most CRTs therefore remain in storage. Of the CRTs that are disposed of by households, most go to municipal landfills, and others to municipal waste-to-energy (WTE) facilities. Only a small percentage are recycled (see Life Cycle Assessment of the Disposal of Household Electronics, D. McKenna et. al. , August 1996, which indicated that only one percent of CRTs from households were recycled). Some CRTs from non-household sources are also placed in municipal landfills. Some states (such as Massachusetts and California) have banned CRTs from all sources from landfills.

As described above, CRT glass often exhibits the toxicity characteristic (TC) for lead because this constituent is used to make most CRT glass. Whether a person or facility is currently subject to the RCRA hazardous waste regulations depends on several factors, including whether the CRT will be recycled or disposed and the type of user. RCRA Subtitle C regulations set forth requirements for hazardous waste generators, transporters, and owners and operators of treatment, storage, and disposal facilities (TSDFs). EPA regulations also contain exclusions for certain wastes from the definition of solid waste or hazardous waste (40 CFR 261.4)(a) and (b)). However, EPA has developed streamlined rules for particular wastes, including recyclable wastes (40 CFR part 266) and universal wastes such as batteries, pesticides, thermostats, and lamps that are widely generated by different industries (40 CFR part 273). Following is a brief description of how different entities are currently regulated.

Households that dispose of or recycle CRTs are exempt from hazardous waste management requirements under 40 CFR 261.4(b)(1). Households may therefore send their used computer and television monitors to any facility or collector for recycling or disposal without being subject to RCRA Subtitle C regulation. Other facilities managing household hazardous waste (such as collectors, recyclers, or disposers) continue to be exempt from hazardous waste requirements unless the household waste is mixed with other regulated hazardous waste.

Non-residential generators of less than 100 kilograms (about 220 lbs) of hazardous waste (including CRTs) in a calendar month are known as conditionally exempt small quantity generators (CESQGs) and are not subject to most RCRA Subtitle C hazardous waste management standards. The Agency notes that about seven or eight CRTs would be sufficient to weigh 220 lbs (assuming that each monitor weighed 30 lbs). These CESQGs may choose to send their wastes to a municipal solid waste landfill or other facility approved by the state for the management of industrial or municipal non-hazardous wastes, including recycling facilities (40 CFR 261.5). Generators of more than 100 kilograms (about 220 lbs) and less than 1,000 kilograms (about 2,200 lbs) of hazardous waste (including CRTs) in a calendar month are considered small quantity generators (SQGs) and are subject to the RCRA hazardous waste management standards, but are allowed to comply with certain reduced regulatory requirements (40 CFR 262.34(d)). Generators of more than 1,000 kilograms (about 2,200 lbs) of hazardous waste in a calendar month are considered large quantity generators (LQGs) and are subject to all the applicable hazardous waste regulations for generators (40 CFR 262.34(a)). CRTs that are not considered wastes should not be counted in determining whether a generator is a CESQG, SQG, or LQG.

To determine whether a non-residential facility with used CRTs must comply with the RCRA hazardous waste regulations, the user must first determine if its used CRTs are solid wastes. Following is a brief description of how solid waste determinations for CRTs are made under federal law. (However, the Agency notes that all Region III states' regulatory agencies are authorized to implement the hazardous waste program in lieu of the federal program, and state regulations may be more stringent than the federal regulations. Users should, therefore, consult with the appropriate state agency before making their determinations.)

EPA has consistently taken the view that materials used and taken out of service by one person are not wastes if a second person puts them to the same type of use without first “reclaiming” them (see 50 FR 624, January 5, 1985). Many CRTs are taken out of service by both businesses and households not because they can no longer be used, but because users are upgrading their systems to take advantage of the rapid advances that have resulted in better and faster electronics. Businesses and organizations upgrading their computers often replace the entire computer system, including the monitors. A working CRT-containing unit considered obsolete by one user is therefore likely to be capable of reuse as a computer monitor or a television monitor by another user.

Many businesses and organizations that take CRTs out of service do not have the specialized knowledge needed to determine whether the unit can be reused as a computer or television display unit. Moreover, those entities often do not decide whether a particular CRT will, in fact, be reused. Many businesses and other organizations send used computers and televisions to resellers. Resellers often test CRTs or otherwise decide if the CRTs can be reused directly, if they can be reused after minor repairs, or if they must be sent for further processing or disposal. Because the typical original user usually lacks the specialized knowledge needed to decide the future of a CRT, EPA is today clarifying that we do not consider a user sending a CRT to a reseller for potential reuse to be a RCRA generator.

Furthermore, EPA today clarifies that used CRTs undergoing repairs before resale or distribution are not being “reclaimed,” and are considered to be products “in use” rather than solid wastes. Resellers of used CRTs generally test and identify equipment that can be resold or is economically repairable. Sometimes the equipment is collected and redistributed for reuse with no repairs. If repairs are necessary, they typically consist of rewiring, replacing defective parts, or replacing the electron gun. Under these circumstances, the CRT would still be considered a commercial product rather than a solid waste. EPA believes that these repairs and replacement activities do not constitute waste management.

As discussed below in section III.E.3, EPA also applies these principles to other “end-of-life” electronic devices, which also would not be wastes if sent to resellers for potential reuse.

This regulatory interpretation for CRTs and other “reused” electronics is not unique to Region III states; it applies nationwide, as EPA stated in the national CRT proposal. See 67 FR. 40508, 40511 (June 12, 2002).

Sometimes manufacturers of computers and televisions send unused CRTs (usually off-specification CRTs) directly to glass processors who break the CRTs and separate out the glass components. Generally, the processor then sends the processed glass to a glass-to-glass recycler or to another recycling facility, such as a lead smelter. Although EPA could consider these activities to constitute reclamation, the Agency does not regulate the reclamation of either listed or characteristic unused commercial chemical products (see 50 FR 14219, April 11, 1985). EPA considers unused CRTs to be unused commercial chemical products. Therefore, these materials are not solid wastes when sent for reclamation.

Under the current RCRA regulations, used CRTs sent directly to glass processors or other recyclers could, under some circumstances, be considered spent materials undergoing reclamation, and could therefore be solid wastes. However, as explained elsewhere in this notice, EPA believes that under some circumstances used CRTs sent for recycling do not resemble spent materials. Therefore, the Agency is today promulgating an exclusion from the definition of solid waste for used CRTs being recycled in Region III states if they are managed under certain conditions. Users and resellers sending used CRTs to recyclers should check with their authorized states to see which RCRA Subtitle C requirements, if any, are applicable to their activities.

If a non-household entity decides to send used or unused CRTs directly to a landfill or an incinerator for disposal, that entity would be considered the generator of a solid waste. The person making the decision must determine if the CRTs exhibit a hazardous waste characteristic under 40 CFR Part 261, Subpart C. He may either test the CRTs or use process knowledge to make this determination. As stated above, many or most CRTs from color computer or television monitors exhibit the toxicity characteristic (TC) for lead. Although EPA's data indicate that most CRTs from black and white monitors do not fail the TC, those that do are subject to all applicable hazardous waste management requirements. When a decision is made to dispose of hazardous waste CRTs, the non-residential user, reseller, or manufacturer must comply with all applicable hazardous waste generator requirements of 40 CFR Part 262, including packaging and labeling, 90-day accumulation requirements, use of the hazardous waste manifest, and recordkeeping and reporting (unless the generator is a CESQG).

Some companies ship their waste CRTs to hazardous waste landfills for disposal. Used CRTs generated by a non-residential facility that fail the TC for lead must meet applicable land disposal restrictions (LDRs), 40 CFR Part 268, before being placed in a land-based unit, such as a landfill. These restrictions do not apply to CRTs generated by households or CESQGs. To meet LDRs, the CRT glass must be treated so that the TCLP lead concentration does not exceed 0.75 mg per liter. This concentration level is generally achieved by crushing and stabilizing the glass through the addition of chemicals which reduce the solubility of lead when contacted by leachate.

In 1992, the Agency issued a memorandum to its EPA Regional Waste Management Directors stating that used whole circuit boards are considered to be scrap metal when sent for reclamation, and therefore exempt from regulation under RCRA. The Agency has also addressed printed circuit boards in the Land Disposal Restrictions Phase IV rulemaking (see 62 FR 25998, May 12, 1997). In that rulemaking, the Agency provided an exclusion from the definition of solid waste at 40 CFR 261.4(a)(14) for shredded circuit boards being reclaimed, provided they are stored in containers sufficient to prevent a release to the environment prior to recovery and provided they are free of mercury switches, mercury relays, nickel-cadmium batteries and lithium batteries. Subsequently, on May 26, 1998 (63 FR 28556), the Agency clarified that the scrap metal exemption applies to whole used circuit boards that contain minor battery or mercury switch components and that are sent for continued use, reuse, or recovery. In that notice, EPA stated that it was not the Agency's intent to regulate under RCRA circuit boards containing minimal quantities of mercury and batteries that are protectively packaged to minimize dispersion of metal constituents. Once these materials are removed from the boards, they become a newly generated waste subject to a hazardous waste determination. If they meet the criteria to be classified as a hazardous waste, they must be handled as hazardous waste; otherwise, they must be managed as a solid waste.

The Agency is studying certain non-CRT electronic materials to determine whether they consistently exhibit a characteristic of hazardous waste. However, we are not currently aware of any non-CRT computer components or electronic products that would generally be hazardous wastes. With respect to these materials, the Agency will use the same line of reasoning that is outlined above for CRTs to determine if the materials are solid wastes. That is, if an original user sends electronic materials to a reseller because he lacks the specialized knowledge needed to determine whether the units can be reused as products, the original user is not a RCRA generator. The materials will not be considered solid wastes until a decision is made to recycle them in other ways or dispose of them.

From 1994 through 1998, EPA's Common Sense Initiative (CSI) explored the environmental regulation of six industry sectors and looked for ways to make environmental regulation “cleaner, cheaper, and smarter.” EPA established CSI as an advisory committee (the “CSI Council”) under the Federal Advisory Committee Act. The CSI Council included representatives from each industry sector, from non-governmental environmental and community organizations, from state governments, and from colleges and universities. EPA also established subcommittees of the Council for each industry sector. The subcommittees included representatives of the various stakeholders represented in the CSI Council. One of the industry sectors selected for this initiative was the computer and electronics industry. The CSI Computers and Electronics Subcommittee (CES) then formed a workgroup to examine regulatory barriers to pollution prevention and recycling. The workgroup (known as the “Overcoming Barriers Workgroup”) explored the problems of managing mounting volumes of outdated computer and electronics equipment.

One of the concerns investigated by the Overcoming Barriers Workgroup and the CES was the barrier to CRT recycling created by some existing hazardous waste management regulations. The CES urged that removing such barriers was essential to fostering CRT recycling, especially glass-to-glass recycling. The Subcommittee believed that CRT recycling would provide the following benefits: (1) Less lead sent to landfills and combustors; (2) added resource value of specialty glass and lead; (3) lower waste management costs; (4) less regulatory uncertainty about CRT recovery and recycling; (5) less use of raw lead in CRT glass manufacturing; (6) better melting characteristics, improved heat transfer, and lower energy consumption in CRT glass manufacturing furnaces; (7) improved CRT glass quality; and (8) lower emissions of lead from CRT glass manufacturing. The CES Subcommittee indicated that some recycling methods or end products (other than those associated with glass-to-glass recycling) may pose risks to human health and the environment and would require further investigation.

As a result of the findings of the CES Subcommittee, the CSI Council issued a document entitled, “Recommendation on Cathode Ray Tube (CRT) Glass-to-Glass Recycling.” In this document, the Council recommended streamlining regulatory requirements for CRTs that would encourage recycling and better management. The recommendations included revised requirements for packaging, labeling, transportation; general performance standards for glass processors; and export provisions. The CSI Council also recommended an exclusion from the definition of solid waste for processed glass that is used to make new CRT glass. In today's notice, EPA creates an exclusion from the definition of solid waste for Region III states which will simplify management requirements for used CRTs. Although the requirements promulgated today differ in some respects from those recommended by the CSI Council, we believe that they will be just as effective in fostering the goals of the Council. EPA has proposed a similar nationwide exclusion and expects to use information gained from this regional pilot in assessing the proposed nationwide rulemaking.

All materials discussed above that are not currently regulated under RCRA will remain unaffected by today's rule. Used CRTs from households and CESQGs will retain their current regulatory exemptions. Used CRTs from any source, along with electronic materials that are sent for reuse as is or after minor repairs, are not wastes. Section 261.4(a)(24) will provide better notice of this interpretation of our current regulations. Unused CRTs sent for recycling will still be classified as commercial chemical products which are not solid wastes even if they are reclaimed or speculatively accumulated. Finally, both used and unused CRTs sent for disposal will also remain regulated as before.

Today's rule principally addresses used CRTs, and glass removed from CRTs, destined for recycling in Region III states. The regulations we are promulgating today do distinguish between intact CRTs, and CRTs that are broken. An intact CRT is a CRT remaining within the monitor whose vacuum has not been released. A broken CRT means glass removed from the monitor after the vacuum has been released. EPA notes that these definitions also cover non-consumer CRTs such as medical, automotive, oscilloscope, and appliance CRTs.

Today's rule excludes intact CRTs located within Region III states from the definition of solid waste unless they are disposed. Consequently, these units would not be subject to RCRA Subtitle C regulation, including the speculative accumulation limits of 40 CFR § 261.2(c)(4).

As noted above, unused CRTs are currently considered commercial chemical products which are excluded from the definition of solid waste when recycled, even if they are reclaimed or speculatively accumulated. Intact CRTs are highly unlikely to release lead to the environment because the lead is contained in the plastic housing and the glass matrix. We believe that it would be very difficult to distinguish between used and unused intact CRTs destined for recycling. Moreover, there appears to be no environmental basis for such a distinction. Therefore, EPA is including all intact CRTs in this pilot-specific rule unless they are disposed, whether used or unused.

Some users and collectors of CRTs separate the CRT from the monitor and release the vacuum, after which they send the resulting broken glass to a recycler (often a glass processor). This practice saves shipping costs and enables the glass processor to pay more for the broken CRTs received. At other times, the CRTs remain intact until broken by the processor or another recycler. In any event, CRTs whose glass has been broken are non-reusable and non-repairable; and therefore, prior to this rule were solid wastes at the time such breakage occurs.

EPA is today amending 40 CFR part 261 to add a new section 261.40, which will provide that used, broken CRTs located within Region III states are excluded from the definition of solid waste if they meet specified conditions. Under today's rule, used, broken CRTs sent for recycling would not be solid wastes if they are transported in an appropriate container, and stored in an appropriate container in an enclosed building. An appropriate container ( i.e. , a package or a vehicle) is one that is constructed, filled, and closed to minimize identifiable releases of CRT glass (including fine solid materials) to the environment. Each container in which the used, broken CRT is contained must be labeled or marked clearly with one of the following phrases: “Waste cathode ray tube(s)—contains leaded glass,” or “Used cathode ray tube(s)—contains leaded glass.” It must also be labeled or marked: “Do not mix with other glass materials.” An enclosed building must include a roof, floor, and walls. Finally, used, broken CRTs destined for recycling in Region III states also would not be allowed to be speculatively accumulated as defined in 40 CFR 261.1.

The Agency believes that if these materials are properly containerized and labeled when stored or shipped prior to recycling, they resemble articles in commerce or commodities more than wastes. Breakage is a first step toward recycling the leaded glass components of the CRT. Also, materials held in conditions that safeguard against loss are more likely to be regarded as valuable commodities destined for legitimate recycling. In addition, the packaging requirements will ensure that the possibility of releases to the environment from the broken CRTs is very low. For these reasons, an exclusion from the definition of solid waste is appropriate if the broken CRTs are handled under the rule being promulgated today.

The Agency also promulgates today an exclusion from the definition of solid waste for used CRTs undergoing glass processing within EPA Region III, as long as the processing meets certain conditions. CRT glass processing is defined in 40 CFR 260.10 as receiving intact or broken used CRTs, intentionally breaking them, sorting or otherwise managing glass removed from CRT monitors, and cleaning coatings from the glass. As noted above, CRT users and collectors sometimes break CRTs before sending them to a processor. Therefore, breaking used CRTs would not by itself subject a facility to the CRT glass processing conditions. In order to be classified as a used CRT glass processor, the facility must perform all of the activities listed above.

The provisions of today's rule, set forth in 40 CFR 261.40, state that used, broken CRTs undergoing glass processing would not be considered solid wastes if they are stored in an enclosed building with a roof, floor, and walls. In addition, all glass processing activities must take place within an enclosed building with a roof, floor, and walls, and no activities may be performed that use temperatures high enough to volatilize lead from used, broken CRTs. The exclusion set forth today does not allow used, broken CRTs to be speculatively accumulated, as defined in 40 CFR 261.1.

EPA believes that the packaging and storage conditions being promulgated today will help ensure that the materials in question are more commodity-like than waste-like. Used, broken CRTs that are not stored or packaged in accordance with these requirements tend not to be valuable, product-like materials. The opportunity for loss or releases of the materials indicates that they are wastes. As specifically recommended by the CSI Council, we are also providing that processors will be required to conduct their activities without using temperatures high enough to volatilize lead from broken CRTs. Besides increasing the risk of releases to the environment, such practices suggest waste treatment rather than production.

In today's rule, EPA is excluding processed glass (from used CRTs) from the definition of solid waste if it is sent for recycling to a CRT glass manufacturer or to a lead smelter within Region III, as long as the processed glass is neither speculatively accumulated, nor used in a manner constituting disposal. 40 CFR 261.40(d).

EPA believes that processed glass from used CRTs destined for CRT glass manufacturing or to a lead smelting operation, located in Region III states, meets the regulatory criteria in 40 CFR 260.31(c) for a variance from the definition of solid waste. This variance applies to materials that have been reclaimed but must be reclaimed further before recovery is completed, if, after initial reclamation, the resulting material is commodity-like. The following paragraphs discuss the characteristics of processed CRT glass and how they meet the criteria.

Processed CRT glass needs minimal further processing by CRT glass manufacturers or lead smelters. CRT glass cullet is shipped to these facilities already cleaned and sorted. CRT manufacturers and smelters perform processing steps consisting only of magnetic separation of anode buttons and studs and, if necessary, further crushing of the glass. Following these steps, the partially reclaimed CRT glass enters the furnace or smelter, similar to other feedstocks used in glass manufacturing and smelting.

The initial processing of CRT glass satisfies this criterion. CRT glass is usually purchased by CRT glass manufacturers from processors for at least $170 per ton (approximately three-fourths of the price of virgin glass). In contrast, lead smelters are usually paid at least $150 per ton by processors for CRT glass used as fluxing material and lead feedstock. However, lead smelters only pay an average of about six dollars per ton for industrial sand used as a fluxing material. Broken glass from CRTs resembles industrial sand in composition and can therefore serve as a substitute for this sand in the fluxing process. The sand, however, is not expensive.

CRT glass manufacturers and lead smelters currently obtain processed CRT glass from processors and are working with the processors to increase the supply and quality of processed CRT glass, which may further increase its value. The value of processed CRT glass depends on whether manufacturers' specifications are met, and some glass chemistries require exacting specifications that make the processed glass more valuable if it meets those specifications. CRT glass manufacturers have stricter quality standards than lead smelters about the type of material that they can accept (e.g., cleaned, sized, free of coating and debris).

Further evidence of the economic value of reclaimed CRT glass is demonstrated by the cost savings realized by CRT glass manufacturers and lead smelters when using processed CRT glass. The use of processed CRT glass cullet benefits the manufacturer in several ways, such as improving heat transfer and melting characteristics in the furnaces, lowering energy consumption, and maintaining or improving the quality of the final product.

Under this criterion, the partially reclaimed material must be similar to an analogous raw material or feedstock for which the material may be substituted in a production or reclamation process. Processed CRT glass is similar to off-specification glass and cullet that manufacturers currently use as feedstock. Glass-making furnaces require between approximately 30 and 70 percent cullet. With respect to lead smelters, processed CRT glass is similar to industrial sand that would otherwise be used as feedstock or flux in the smelter.

The Agency believes that there is a strong end market for processed CRT glass. CRT glass manufacturers and lead smelters have developed relationships with CRT glass processors to increase the amount and quality of reclaimed CRT glass cullet available for glass-to-glass recycling and lead reclamation. In addition, CRT glass manufacturers have developed programs in which off-specification CRTs may be delivered directly to CRT processors for initial processing. The processed CRT glass is delivered to CRT glass manufacturers for use as feedstock in glass-to-glass manufacturing, or to lead smelters for recycling.

The Agency believes that current CRT glass industry practices are effective in minimizing losses and preventing releases. Processed CRT glass generally is stored indoors on a cement or asphalt pad. In most cases, the material is shipped in large capacity trucks that are covered with a tarp to minimize loss during transport. When the CRT glass manufacturers or lead smelters receive shipments, the glass is unloaded into a temporary holding area, inspected, and either loaded onto a conveyor belt for further processing or stored under cover. Following these steps, the reclaimed CRT glass enters the furnace feedstock stream or the smelter.

Under today's rule, processed glass from used CRTs sent for recycling at a facility other than a glass manufacturer or a lead smelter will be excluded from the definition of solid waste only if additional conditions are met. The processed glass will have to be packaged and labeled in accordance with the requirements of 40 CFR 261.40(a). Also, speculative accumulation limits will apply.

As stated previously, processed glass is sometimes sent to copper smelters for recycling. It also may be sent for recycling into objects such as radiation shielding, acoustical barriers, optical glass beads, or decorative glass and tile products. The Agency believes that processed glass sent for such uses resembles a commodity more than a waste if it is packaged and labeled under these conditions. In addition, such packaging ensures that the possibility of releases to the environment is minimal.

If processed glass is sent for any kind of recycling that involves land placement, it would be subject to the requirements of 40 CFR part 266, Subpart C, for recyclable materials used in a manner constituting disposal. The Agency is currently unaware of processed glass being recycled in this manner.

Under section 3006 of RCRA, EPA may authorize qualified states to administer and enforce the RCRA hazardous waste program within the state. Following authorization, EPA retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although authorized states have primary enforcement responsibility. The standards and requirements for state authorization are found at 40 CFR Part 271. Each of Region III's states is authorized to implement the RCRA program.

Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 (HSWA), a State with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the federal program in that state. The federal requirements no longer applied in the authorized state, and EPA could not issue permits for any facilities in that state, since only the state was authorized to issue RCRA permits. When new, more stringent federal requirements were promulgated, the state was obligated to enact equivalent authorities within specified time frames. However, the new federal requirements did not take effect in an authorized state until the state adopted the federal requirements as state law.

In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized states at the same time that they take effect in unauthorized states. EPA is directed by the statute to implement these requirements and prohibitions in authorized states, including the issuance of permits, until the state is granted authorization to do so. While states must still adopt HSWA related provisions as state law to retain final authorization, EPA implements the HSWA provisions in authorized states until the states do so.

Authorized states are required to modify their programs only when EPA enacts federal requirements that are more stringent or broader in scope than existing federal requirements. RCRA section 3009 allows the states to impose standards more stringent than those in the federal program ( see also 40 CFR 271.1). Therefore, authorized states may, but are not required to, adopt federal regulations, both HSWA and non-HSWA, that are considered less stringent than previous federal regulations.

Today's rule is less stringent than the current federal program. Because states generally are not required to adopt less stringent regulations, the Region III states do not have to adopt these regulations for CRTs. However, because EPA is promulgating this rule to implement the October, 2001 MOU signed by the Region III states and EPA, EPA expects that the Region III states will take all necessary actions to implement this rule. Some Region III states may already be in the process of revising their regulations for these materials.

Because this rule applies within Region III states only, and some of these states may choose to implement slightly different, more stringent versions of today's rule, there may be cases when used CRTs or processed CRT glass will be transported through Region III or non-Region III states, with different regulations governing these wastes.

First, a waste originating in a Region III state which is implementing today's conditional exclusion from the definition of solid waste may be sent to or through any other state outside of Region III, where it is subject to the full hazardous waste regulations. In this scenario, for the portion of the trip through the originating state, and any other state where the waste is excluded, neither a hazardous waste transporter with an EPA identification number per 40 CFR 263.11 nor a manifest would be required. However, for the portion of the trip through the receiving state, and any other states that do not consider the waste to be excluded, the transporter must have a manifest, and must move the waste in compliance with 40 CFR part 263. In order for the final transporter and the receiving facility to fulfill the requirements concerning the manifest (40 CFR 263.20, 263.21, 263.22; 264.71, 264.72, 264.76 or 265.71, 265.72, and 265.76), the initiating facility should complete a manifest and forward it to the first transporter to travel in a state where the waste is not excluded. The receiving facility must then sign the manifest and send a copy to the initiating facility. EPA recommends that the initiating facility note in block 15 of the manifest (Special Handling Instructions and Additional Information) that the wastes are covered by an exclusion in the initiating state but not in the receiving facility's state.

Second, a hazardous waste generated in a state which does not provide an exclusion for the waste may be sent to a Region III state where it is conditionally excluded. In this scenario, the waste must be moved by a hazardous waste transporter while the waste is in the generator's state or any other states where it is not excluded. The initiating facility must complete a manifest and give copies to the transporter as required under 40 CFR 262.23(a). Transportation within the receiving state and any other states that exclude the waste need not require a manifest and need not be transported by a hazardous waste transporter. However, it is the initiating facility's responsibility to ensure that the manifest is forwarded to the receiving facility by any non-hazardous waste transporter and sent back to the initiating facility by the receiving facility ( see 40 CFR 262.23 and 262.42). EPA recommends that the generator note in block 15 of the manifest (Special Handling Instructions and Additional Information) that the waste is excluded in the receiving facility's state but not in the generator's state.

Third, a waste may be transported across a state in which it is subject to the full hazardous waste regulations although other portions of the trip may be from, through, and to states in which it is excluded. Transport through the state must be conducted by a hazardous waste transporter and must be accompanied by a manifest. In order for the transporter to fulfill its requirements concerning the manifest (Subpart B of part 263), the initiating facility must complete a manifest as required under the manifest procedures and forward it to the first transporter to travel in a state where the waste is not excluded. The transporter must deliver the manifest to, and obtain the signature of, either the next transporter or the receiving facility.

Under Executive Order 12866 (58 FR 51735), the Agency must determine whether this regulatory action is “significant” and therefore subject to formal review by the Office of Management and Budget (OMB) and to the requirements of the Executive Order, which include assessing the costs and benefits anticipated as a result of this regulatory action. The Order defines “significant regulatory” action as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review. Pursuant to the terms of Executive Order 12866, the Agency determined that the proposed national rule is a significant regulatory action. As such, the proposed national rule was submitted to OMB for review. Changes made in response to OMB suggestions or recommendations are documented in the national docket.

We note that as part of the national CRT rulemaking, EPA conducted an economic analysis to estimate the cost savings, incremental costs, economic impacts and benefits to affected regulated entities nationally. A copy of the analysis (entitled, “Economic Analysis of Cathode Ray Tube Management, Notice of Proposed Rulemaking”) has been placed in the RCRA docket for the national rule for public review. No separate analysis has been conducted for this rule since it is considered to be included in the national proposed rule.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an Agency is required to publish a notice for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e. , small businesses, small organizations, and small governmental jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. The following discussion explains EPA's determination.

The small entity analysis conducted for the proposed national rule indicates that streamlining requirements for CRTs is expected to result in savings to affected entities compared to baseline requirements. Under the full compliance scenario, the rule is not expected to result in a net cost to any affected entity. Thus, adverse impacts are not anticipated. Costs could increase for entities that are not complying with current regulatory requirements, but even these costs, which are not properly attributable to the current requirements, would not be expected to result in significant impacts on a substantial number of small entities. Based on the foregoing discussion, I hereby certify that this rule will not have a significant adverse economic impact on a substantial number of small entities. Consequently, the Agency has determined that preparation of a formal Regulatory Flexibility Analysis is unnecessary.

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, including 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. 844(2). It will take effect on [insert date—60 days after publication] unless it is otherwise withdrawn.

The information collection requirements in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An Information Collection Request (ICR) document has been prepared (ICR No. 1189.10) and a copy may be obtained by mail from Susan Auby at Collection Strategies Division, U.S. Environmental Protection Agency (Mail Code 2822T), 1200 Pennsylvania Avenue NW., Washington, DC 20460, by email at auby.susan@epa.gov , or by calling (202) 566-1672. A copy may also be downloaded off the internet at http://www.epa.gov/icr . The information collection requirements are not effective until OMB approves them.

The information requirements established for this action, and identified in the Information Collection Request (ICR) supporting today's rule, are largely self-implementing. This process will ensure that: (i) Regulated entities managing CRTs are held accountable to the applicable requirements; and (ii) state inspectors can verify compliance when needed.

EPA will use the collected information to ensure that CRTs are being managed in a protective manner. These data aid the Agency in tracking waste shipments and identifying improper management practices. In addition, information kept in facility records helps handlers, processors, and destination sites to ensure that they and other facilities are managing these wastes properly. Section 3007(b) of RCRA and 40 CFR part 2, subpart B, which define EPA's general policy on the public disclosure of information, contain provisions for confidentiality. However, no questions of a sensitive nature are included in any of the information collection requirements associated with today's action.

EPA has carefully considered the burden imposed upon the regulated community by the regulations. EPA is confident that those activities required of respondents are necessary and, to the extent possible, has attempted to minimize the burden imposed. EPA believes strongly that if the minimum requirements specified under the regulations are not met, neither the facilities nor EPA can ensure that used CRTs are being managed in a manner protective of human health and the environment.

For the requirements applicable to CRTs being proposed nationally, the aggregate annual burden to respondents over the three-year period covered by this ICR is estimated at 10,426 hours, with a cost of approximately $687,000. Average annual burden hours per respondent are estimated to be 7 hours; there are an estimated 2,400 respondents. This represents a reduction in burden to respondents of approximately 18,616 hours. There are no capital or start-up costs, operation or maintenance costs, and no costs for purchases of services. Nor is there any burden to the Agency. The regional burden will therefore be reduced proportionally.

An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “federal mandates” that may result in expenditures by state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year.

Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.

Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enable officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The Agency's analysis of compliance with the Unfunded Mandates Reform Act (UMRA) of 1995 found that today's rule imposes no enforceable duty on any state, local or tribal government or the private sector. This rule contains no federal mandates (under the regulatory provisions of title II of the UMRA) for state, local, or tribal governments or the private sector. In addition, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. The Act generally excludes from the definition of “federal intergovernmental mandate” (in sections 202, 203, and 205) duties that arise from participation in a voluntary federal program. Today's rule is voluntary. The UMRA also excludes from the definition of “federal private sector mandate” duties that arise from participation in a voluntary federal program. Therefore, we have determined that today's rule is not subject to the requirements of sections 202 and 205 of UMRA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications. “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.” This rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), 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 does not have tribal implications. It 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.

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

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Today's rule revises hazardous waste management requirements for used cathode ray tubes. By encouraging reuse and recycling, the rule may save energy costs associated with manufacturing new materials. It will not cause reductions in supply or production of oil, fuel, coal, or electricity. Nor will it result in increased energy prices, increased cost of energy distribution, or an increased dependence on foreign supplies of energy.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA,” Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, though OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule does not establish technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations' (February 11, 1994) is designed to address the environmental and human health conditions of minority and low-income populations. EPA is committed to addressing environmental justice concerns and has assumed a leadership role in environmental justice initiatives to enhance environmental quality for all citizens of the United States. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin, income, or net worth bears disproportionately high and adverse human health and environmental impacts as a result of EPA's policies, programs, and activities. In response to Executive Order 12898, EPA's Office of Solid Waste and Emergency Response (OSWER) formed an Environmental Justice Task Force to analyze the array of environmental justice issues specific to waste programs and to develop an overall strategy to identify and address these issues (OSWER Directive No. 9200.3-17). To address this goal, EPA conducted a qualitative analysis of the environmental justice issues under the national proposed rule. Potential environmental justice impacts are identified consistent with the EPA's Environmental Justice Strategy and the OSWER Environmental Justice Action Agenda.

Today's rule will revise management requirements for used cathode ray tubes sent for recycling. Facilities that would be affected by today's rule include any facility generating hazardous waste computers and televisions sent for recycling. Also affected would be facilities which recycle these materials. Disposal facilities themselves would not be affected by today's rule.

The wide distribution of affected facilities throughout the United States does not suggest any distributional pattern around communities of concern. Any building in any area could be affected by today's rule. Specific impacts on low income or minority communities, therefore, are undetermined. The Agency believes that emissions during transportation would not be a major contributor to communities of concern through which used CRTs may be transported. Any such material broken during transport would be contained in the required packaging. Overall, no disproportional impacts to minority or low income communities are expected.

In January of 1998, the Director of the Office of Management and Budget signed a determination letter transferring all GSA reproduction facilities to the Defense Automated Printing Service (DAPS), DOD, thereby transferring the GSA mission of providing reproduction services for all agencies. As a result of this transfer and further review by GSA's Office of Legal Counsel, GSA has concluded that coverage in the Federal Property Management Regulations (FPMR) addressing centralized field duplicating services made available by GSA in Federal buildings should be deleted. Therefore, the contents of FPMR 101-5.2 (41 CFR 101-5.2), Centralized Field Reproduction Services, is being removed and reserved. If, in the future, GSA issues regulations regarding centralized field reproduction services, they will be issued in the Federal Management Regulation (FMR). The FMR replaces the FPMR and is written in plain language to provide agencies with updated regulatory material that is easy to read and understand.

GSA has determined that this final rule is not a significant rule for the purposes of Executive Order 12866 dated September 30, 1993.

A Regulatory Flexibility Analysis is not required under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because there is no requirement that this final rule be published in the Federal Register for notice and comment.

The Paperwork Reduction Act does not apply because this final rule does not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

This final rule is exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.

GSA has determined that this final rule is not a significant rule for the purposes of Executive Order 12866 of September 30, 1993.

A Regulatory Flexibility Analysis is not required under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because there is no requirement that this final rule be published in the Federal Register for notice and comment.

The Paperwork Reduction Act does not apply because the changes to the FMR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This final rule is exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.

Federal regulations at 50 CFR part 679 implementing the Fishery Management Plan (FMP) for Groundfish of the GOA govern the groundfish fisheries in the GOA. The North Pacific Fishery Management Council (Council) prepared the FMP, and NMFS approved it under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). General regulations that also pertain to the U.S. fisheries appear at subpart H of 50 CFR part 600.

The Council met in October 2002 to review scientific information concerning groundfish stocks and recommended proposed 2003 specifications which are available for public review (see ADDRESSES ). The Council recommended and NMFS proposes a total acceptable biological catch (ABC) of 382,790 mt and a TAC of 233,166 mt for the 2003 fishing year. The proposed TAC amounts for each species were based on the best available biological and socioeconomic information.

Under § 679.20(c)(1)(ii), NMFS published in the Federal Register proposed harvest specifications for groundfish and associated management measures in the GOA for the 2003 fishing year (67 FR 76344, December 12, 2002). That document contains a detailed discussion of the proposed 2003 TACs, groundfish reserves, apportionments of TAC, ABC amounts, overfishing levels (OFLs), PSC amounts and apportionments, and associated management measures of the GOA groundfish fishery.

This action provides interim harvest specifications and apportionments thereof for the 2003 fishing year that will become available on January 1, 2003, and remain in effect until superseded by the final 2003 harvest specifications. Background information concerning the 2003 groundfish harvest specification process, upon which this interim action is based, is provided in the above mentioned proposed specification document.

Regulations at § 679.20(c)(2)(i) require that one-fourth of each proposed TAC and apportionment thereof (not including the reserves and the first seasonal allowance of pollock and Pacific cod) and one-fourth of the halibut PSC amounts become effective at 0001 hours, A.l.t., January 1, on an interim basis and remain in effect until superseded by the final harvest specifications. The final rule to implement the Steller sea lion protection measures will make the proposed first seasonal allowances of pollock and Pacific cod effective at 0001 hours, A.l.t., January 1, on an interim basis. They will remain in effect until superseded by the final harvest specifications. As stated in the proposed specifications (67 FR 76344, December 12, 2002), no harvest of groundfish is authorized prior to the effective date of this action implementing the interim specifications.

Regulations at § 679.20(a)(6)(ii) and (iii) allocate 100 percent of the pollock TAC to vessels catching pollock for processing by the inshore component, 90 percent of the Pacific cod TAC to vessels catching Pacific cod for processing by the inshore component, and 10 percent of the Pacific cod TAC to vessels catching Pacific cod for processing by the offshore component.

The reserves for the GOA are 20 percent of the TAC amounts for pollock, Pacific cod, flatfish species, and the “other species” category (§ 679.20(b)(2)). The GOA groundfish TAC amounts have been utilized fully since 1987 and NMFS expects this trend to continue in 2003. Therefore, NMFS has proposed reapportioning all the reserves to TAC. The interim TAC amounts contained in Table 1 reflect the proposed reapportionment of reserves back to the TAC.

Table 1 provides interim TAC amounts, the first seasonal allowance of pollock in the combined Western and Central regulatory areas, the first seasonal allowance of Pacific cod in the Western and Central Regulatory Areas, interim TAC allocations of Pacific cod to the inshore and offshore components, and interim sablefish TAC apportionments to hook-and-line and trawl gear. These interim TAC amounts and apportionments become effective at 0001 hours, A.l.t., January 1, 2003.

Federal regulations at 50 CFR part 679 implementing the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) govern the groundfish fisheries in the BSAI. The North Pacific Fishery Management Council (Council) prepared the FMP, and NMFS approved it under the Magnuson-Stevens Fishery Conservation and Management Act. General regulations that also pertain to the U.S. fisheries appear at subpart H of 50 CFR part 600.

The Council met in October 2002 to review scientific information concerning groundfish stocks and recommended proposed 2003 specifications which are available for public review (see ADDRESSES ). The Council recommended a proposed total ABC of 3,176,100 mt and a proposed total TAC of 1,998,540 mt for the 2003 fishing year. The proposed TAC amounts for each species were based on the best available biological and socioeconomic information.

Under § 679.20(c)(1), NMFS published in the Federal Register proposed harvest specifications for groundfish and associated management measures in the BSAI for the 2003 fishing year (67 FR 76362, December 12, 2002). That document contains a detailed discussion of the proposed 2003 TACs, initial TACs (ITACs) and related apportionments, CDQ reserves, ABC amounts, overfishing levels, PSC allowances, PSQ reserve amounts, and associated management measures of the BSAI groundfish fishery.

This action provides interim harvest specifications and apportionments thereof for the 2003 fishing year that will become available on January 1, 2003, and remain in effect until superseded by the final 2003 harvest specifications. Background information concerning the 2003 groundfish harvest specification process upon which this interim action is based is provided in the above mentioned proposed specification document.

Regulations at § 679.20(b)(1)(i) require that 15 percent of the TAC for each target species or species group, except for pollock and the hook-and-line and pot gear allocation of sablefish, be placed in a non-specified reserve. The AFA supersedes this provision for pollock by requiring that the TAC for this species be fully allocated among the CDQ program, incidental catch allowance (ICA), and inshore, catcher/processor, and mothership directed fishery allowances.

Regulations at § 679.20(b)(1)(iii) require that one-half of each TAC amount placed in the non-specified reserve, with the exception of squid, be allocated to the groundfish CDQ reserve and that 20 percent of the hook-and-line and pot gear allocation of sablefish be allocated to the fixed gear sablefish CDQ reserve. Section 206(a) of the AFA requires that 10 percent of the pollock TAC be allocated to the pollock CDQ reserve. With the exception of the hook-and-line and pot gear sablefish CDQ reserve, the CDQ reserves are not further apportioned by gear. Regulations at § 679.21(e)(1)(i) also require that 7.5 percent of each PSC limit, with the exception of herring, be withheld as a PSQ reserve for the CDQ fisheries. Regulations governing the management of the CDQ and PSQ reserves are set forth at §§ 679.30 and 679.31.

Regulations at § 679.20(c)(2) provide that interim specifications become effective at 0001 hours, A.l.t., January 1, and remain in effect until superseded by the final groundfish harvest specifications. The regulations that will be effective with the final rule to implement the Steller sea lion protection measures further provide that the interim specifications will be established as one-fourth of each proposed ITAC amount and apportionment thereof (not including the first seasonal allowance of pollock, Pacific cod and Atka mackerel), one-fourth of each proposed PSQ reserve and PSC allowance established under § 679.21, and the first proposed seasonal allowance of pollock, Pacific cod and Atka mackerel TAC. As stated in the proposed specifications publication (67 FR 76362, December 12, 2002), no harvest of groundfish is authorized prior to the effective date of this action implementing the interim specifications.

Table 1 provides interim TAC and CDQ amounts and apportionments thereof. Regulations at § 679.20(c)(2)(ii) do not provide for an interim specification for the non-trawl sablefish CDQ reserve or for sablefish managed under the Individual Fishing Quota program. As a result, fishing for the non-trawl allocation of CDQ sablefish and sablefish harvested with fixed gear is prohibited until the effective date of the Final 2003 Groundfish Specifications.