Protests filed at GAO prior to the effective date of this final rule will be considered under the previous rule published at 61 FR 39039 on July 26, 1996. That previous rule will also be applied in considering (1) protests filed on or after the effective date of this rule that supplement or amend a protest filed at GAO prior to the effective date of this rule and (2) claims and requests for reconsideration filed on or after the effective date of this rule that concern a protest considered under the previous rule.

On October 1, 2002, GAO published a proposed rule (67 FR 61542) in which it proposed to revise its Bid Protest Regulations. The supplementary information included with the proposed rule explained that the proposed revisions to GAO's regulations, promulgated in accordance with the Competition in Contracting Act of 1984, 31 U.S.C. §§ 3551-3556, were prompted by GAO's recognition that there have been legal developments and changes in practice that have occurred since the last revision, in 1996. For example, the use of alternative dispute resolution (ADR) has grown in practice and electronic filing of protests has become technologically feasible. Of particular interest, the proposed revision reflected GAO's view that recent decisions by the Court of Appeals for the Federal Circuit and the Court of Federal Claims may warrant a change in our review of protests challenging affirmative responsibility determinations. GAO's final rule makes changes in these and other areas in order to improve the overall efficiency, effectiveness, and fairness of the bid protest process at GAO.

Interested persons were invited to submit comments on GAO's proposed rule by November 12, 2002. We received written comments from three Federal agencies, two law firms, and one bar association. In adopting this final rule, we have carefully considered all comments received. The commenters were generally supportive of our efforts to improve the bid protest process and clarify GAO's procedures, and suggested further language changes consistent with these goals. Several of these suggested changes have been adopted, either in the final rule itself, or in the form of additional information in GAO's publication, “Bid Protests at GAO: A Descriptive Guide” (Descriptive Guide), which will be updated to reflect the revised regulations.

A discussion of the more significant comments concerning GAO's proposed rule, and our responses to these comments, are set forth below.

One commenter suggested that GAO clarify which word processing applications/programs are acceptable for use by parties in filing electronic protests and other protest documents, in order to ensure that applications used by protesters, agencies, and GAO are compatible. In response, GAO will set forth the details regarding electronic filing on both its Web site ( www.gao.gov ) and in the Descriptive Guide, including such essential information as the e-mail address to which protests must be sent and the word processing application used by GAO. While GAO cannot warrant compatibility between various word processing applications, disclosing the application used by GAO is information that may assist protesters in deciding upon an appropriate word processing application, and thereby should minimize any risk that a protest may be received in garbled form, or not be received at all, due to word processing application incompatibilities. However, as is made clear in the revised section 21.0(g), protesters bear the risk that the filing method chosen, including electronic filing, will not result in timely receipt of a legible protest at GAO; this includes any risk of incompatibility between word processing applications and other potential transmission problems. As for compatibility between protesters' and agencies' word processing programs, to the extent that electronic submissions are authorized in a particular case, the cognizant GAO attorney, together with the parties, will determine the appropriate means for transmitting submissions. We note that the extent to which electronic filings are permitted after receipt of an electronically transmitted protest will be determined by the GAO attorney, taking into consideration, in particular, whether protected information will be involved and the extent to which it can be transmitted securely, to GAO's and the parties' satisfaction.

Some commenters expressed the view that, in order for electronic filing of protests to be practicable, protesters must be able to confirm receipt of their protest transmission. GAO recognizes that the ability of protesters to confirm receipt of their protest is essential if electronic filing is to be a meaningful filing option. Toward this end, the system GAO has in place will provide an automatic return e-mail that can be used to confirm receipt of an electronic protest at GAO. Also, GAO will list its case status telephone number on its website and in the Descriptive Guide to provide protesters with an additional means of confirming receipt.

One commenter expressed concern that the revised language under paragraph (i) of section 21.3 could lead to the dismissal of meritorious protest issues where the agency report inadequately responds to an issue and the protester does not comment further, having nothing new of substance to add. GAO notes that this hypothetical situation is only a theoretical possibility and does not reflect GAO's experience. The regulations to date have permitted protesters, in lieu of substantive comments, to merely ask that their protest be decided on the existing record, and it is GAO's experience that protesters choosing this option invariably have their protest denied. The purpose of the revision is to make protesters, particularly those proceeding on a pro se basis, aware of the need for them to respond substantively to the agency report on their protest in order to maximize the chance that their protest will be sustained; alternatively, it is intended to lead protesters to withdraw protests more promptly where they are unable to rebut the agency's substantive response. The revision is not intended to change the manner in which GAO handles comments on specific issues raised in a protest. Currently, where a protester fails to comment on an agency's substantive response to an issue that is consistent with the record and appears reasonable on its face, we typically will consider that aspect of the protest abandoned and dismiss it. On the other hand, where the agency report does not adequately address a protest issue, GAO does not automatically dismiss the issue; rather, GAO considers the record as a whole, and, if necessary, develops the record further, and decides whether the issue has merit. GAO will continue this practice under the revised regulations.

One commenter suggested that GAO include in the regulations or the Descriptive Guide a warning to protesters that their comments should address all issues raised in the original protest. However, GAO believes such a warning would be inconsistent with one of the underlying purposes of the change—to lead protesters to withdraw protests where the protester is unable to respond to the agency's position substantively—since the suggested warning could encourage protesters to address issues superficially solely to avoid dismissal. However, GAO will highlight this change in the Descriptive Guide by making it clear that protests are seldom sustained where protesters do not submit substantive comments in response to an agency report.

Two commenters expressed the view that the change under paragraph (b)(2) of section 21.5—providing that GAO will consider protests of Small Business Administration (SBA) Certificate of Competency (COC) reviews where it is alleged that SBA failed to follow its own published regulations—is unwarranted. GAO recognizes that SBA's judgments in connection with a COC determination are matters within SBA's discretion and are not subject to GAO review. It is GAO's view, however, that there are some circumstances under which it may be appropriate to consider protest arguments that SBA has violated its own regulations in making a particular COC determination, and thereby has deprived a bidder or offeror of a contract award to which it otherwise was entitled under applicable laws and regulations. As explained in the proposed rule's supplementary information, this change is intended to make GAO's review in this area consistent with that in the area of protests of procurements under section 8(a) of the Small Business Act (Sec. 21.5(b)(3)), and protests of affirmative determinations of responsibility (Sec. 21.5(c), as revised in this final rule). Further, as indicated in the revised language, GAO will interpret the exception narrowly and, as a result, anticipates that this review will occur infrequently.

One agency commenter expressed concern that the revised language could lead to the inequitable result that a protest could be sustained against a contracting agency based on SBA's misconduct. However, in the event that GAO sustained a protest based solely on SBA's actions, the decision would clearly indicate that the violation was SBA's, not the contracting agency's.

Several commenters questioned the change under section 21.5(c), providing for expanded GAO review of protests challenging affirmative determinations of responsibility. One agency commented that the change may lead to GAO's substituting its judgment for that of the contracting agency, while another commenter suggested that GAO provide some guidance as to what is meant by “serious concerns.” The language providing for expanded GAO review in this area was prompted by the desire for consistency between our standard and the Court of Appeals for the Federal Circuit's standard for reviewing affirmative responsibility determination protests. We believe the revised language serves this purpose. GAO believes it would not be practical or useful to provide detailed examples of protests that fall within or outside of the changed review standard, since small changes in the facts or evidence presented could result in a different conclusion. As a general matter, however, the language requiring the protester to “identify evidence raising serious concerns” is intended to encompass protests where, for example, the protest includes specific evidence that the contracting officer may have ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible. At the other end of the spectrum, the revised language was intended to exclude from review general and “information and belief” allegations not supported by evidence, and those that identify what appear to be minor, rather than significant, discrepancies related to the awardee's responsibility.

Two commenters suggested that GAO review affirmative responsibility determination protests where it is alleged that the contracting officer unreasonably evaluated available information, in the same manner in which we review negative responsibility determinations. However, we believe this approach would accord too little weight to the contracting officer's discretion in the area of affirmative responsibility determinations and also place a substantial unwarranted additional burden on contracting agencies. In this regard, this change was prompted not by evidence of agency abuse in this area, but by our desire to preserve consistency between GAO and the courts. GAO's review therefore generally will involve a contracting officer's failure to consider “available relevant information,” rather than the reasonableness of the contracting officer's judgments based on that information, or his or her failure to obtain information through an exhaustive investigation. Whereas GAO's review of negative responsibility determinations for reasonableness is intended to ensure that firms found entitled to a contract award under the announced evaluation scheme are not then unreasonably denied the award, no similar “nullification” of the evaluation scheme comes into play with an affirmative determination of responsibility.

One commenter suggested adding language to section 21.5 to make it clear—as GAO recently held in Champion Bus. Servs., Inc. , B-290556, June 25, 2002, 2002 CPD ¶ 109—that protests challenging the inclusion of the protester's own proposal in the competitive range fall outside GAO's bid protest jurisdiction. GAO agrees that this change should be included in the regulations and, accordingly, has added appropriate language in new paragraph (j).

One commenter suggested that GAO clarify in paragraph (e) of section 21.10 that flexible alternative procedures may be invoked by GAO on its own initiative or at the request of the parties. GAO agrees that this point should be clarified and has amended the paragraph accordingly.

For the reasons set out in the preamble, Title 4, Chapter I, Subchapter B, of the Code of Federal Regulations is amended to read as follows:

On June 6, 2002, we published an interim rule in the Federal Register (67 FR 38841-38844, Docket No. 02-021-1) amending the bovine tuberculosis regulations in 9 CFR part 77 regarding State and zone classifications by removing the split-State status of Texas and classifying the entire State as modified accredited advanced. Under the regulations in § 77.10 for certain cattle or bison originating in a modified accredited advanced State or zone, cattle or bison that are not known to be infected with or exposed to tuberculosis must meet certain identification, certification, and testing requirements prior to being moved interstate.

In the interim rule, we delayed, until January 1, 2003, the date for compliance with the following interstate movement requirements for the State of Texas, except for the former modified accredited advanced zone in El Paso and Hudspeth Counties, TX:

• The identification of sexually intact heifers moving to approved feedlots and steers and spayed heifers (§ 77.10(b));

• The identification requirements for sexually intact heifers moving to feedlots that are not approved feedlots (§ 77.10(d)); and

• Because identification is required for certification, the certification requirements for sexually intact heifers moving to unapproved feedlots (§ 77.10(d)).

We delayed compliance of these requirements for two reasons. First, the size of the cattle industry in Texas necessitated additional time to implement the identification requirements of the regulations. These additional identification requirements would require obtaining identification devices, developing procedures and processes for numbering the identification devices, and possibly developing a new State-Federal system to record the identification, if the existing State-Federal system is not adequate. Second, some cattle that had begun moving through channels prior to the change in Texas' tuberculosis status would not have been identified at their premises of origin. We agreed with the State of Texas to allow those cattle to complete their movement through normal industry channels. We would then begin enforcing certain provisions of the regulations on cattle that would be identified at their premises of origin.

The State of Texas has requested that we extend the compliance date to allow State animal health officials and other affected parties additional time to make preparations for complying with the identification and certification requirements outlined above. As noted in the interim rule, the two affected herds were depopulated, and a complete epidemiological investigation into the potential sources of the disease was conducted. We heightened our surveillance activities at slaughtering plants in Texas and in surrounding States. Also, since the fall of 2001, no affected herds have been detected in the State of Texas. Based on comments that we received on the interim rule, it appears that the tuberculosis risk associated with the movement of nonbreeding cattle through channels to slaughter is low and that identification requirements for certain cattle destined for slaughter may be unnecessary. We are currently considering proposing changes to the regulations as a result of those comments. Therefore, we are further delaying the date for compliance with the identification and certification requirements of § 77.10(b) and (d) until September 30, 2003. As stated in the interim rule, this delay in compliance does not apply to the movement of cattle from the former modified accredited advanced zone in El Paso and Hudspeth Counties, TX.

In 1972, the Congress enacted the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App.) to regulate the formation and operation of advisory committees by Federal agencies. Section 7(c) of the Act requires the Administrator of the General Services Administration (GSA) to establish administrative guidelines and management controls applicable to advisory committees. Section 8(a) of the Act directs the head of each Federal agency to establish uniform administrative guidelines and management controls for advisory committees established by that agency. Agency guidelines and management controls must be consistent with GSA's directives.

In 1975, the NRC promulgated its Advisory Committee regulations as 10 CFR part 7 (40 FR 8774; March 3, 1975). A revision of Part 7 was published on June 27, 1989 (54 FR 26947), in order to maintain consistency between NRC and GSA FACA regulations, which had been issued on December 2, 1987 (52 FR 45929). The GSA issued a revision of its regulations, effective August 20, 2001 (66 FR 37728; July 19, 2001), providing administrative and interpretive guidelines and management controls for Federal agencies concerning the implementation of the Act. GSA's new regulations reflect recent legislative changes, shifts in Federal policy, and Federal court decisions issued since the GSA regulations were issued in 1987.

The Commission determined that NRC's advisory committee regulations should be revised to make them more consistent with the new GSA FACA regulations. On August 8, 2002, the Commission published for public comment a proposed rule revising its FACA Regulations (67 FR 51501). The NRC received no comments and is now publishing its proposal as a final rule.

The following are the most significant changes that are made to current NRC regulations by this final rule:

1. The meetings of NRC advisory committee subcommittees are exempted from FACA requirements unless the subcommittee reports and makes recommendations directly to the agency or its recommendations are adopted by its parent advisory committee without full deliberations by the parent committee.

2. There is an exemption from FACA requirements for meetings composed only of Federal employees and officials or employees of State, local, and tribal governments to exchange views, information, or advice on the management or implementation of Federal programs in which they share responsibilities, as provided in section 204(b) of the Unfunded Mandates Act of 1995.

3. There is an exemption from FACA requirements for meetings between NRC employees and committees or groups not actually managed or controlled by the Government which were created by a non-Federal entity and meetings with NRC contractors, applicants, or licensees to discuss specific matters involving the contract or the Commission's efforts to ensure compliance with regulations.

4. The definition of a “utilized” committee is amended to mean a group or committee not established by the Federal Government but whose operations are managed or controlled by a Federal agency.

5. There is a de-emphasis of the goal of achieving “consensus” as an important factor in determining whether an advisory group is subject to FACA. Instead, the final rule provides that whether there is a group deliberative process is a more important consideration than whether the group seeks to achieve consensus.

6. The definition of an “operational committee” is amended to mean a group performing operational functions specifically authorized by statute or Presidential directive, such as making or implementing Governmental decisions or policy, as long as the group does not become primarily advisory in nature.

7. New definitions of “discretionary” and “non-discretionary” committees are created. “Non-discretionary” committees are defined as advisory committees required by statute or Presidential directive, while “discretionary” committees are defined as those established under the authority of an agency head or authorized by statute, but not required by Congress.

8. The definition of advisory committee meeting is amended to include a gathering of advisory committee members through electronic means, such as by teleconference, video conference, or the Internet.

9. A provision is added to the effect that the Commission may periodically invite feedback from the public regarding the effectiveness of NRC advisory committees.

10. The amendments provide that the NRC is required to consult with the GSA Committee Management Secretariat prior to the establishment, renewal, or reestablishment of an advisory committee, in addition to current requirements on seeking the Secretariat's review.

11. There is added a requirement for reasonable access for persons with disabilities to attend advisory committee meetings.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, the Commission is clarifying its practices regarding Federal advisory committees. This action does not constitute the establishment of a technical standard that requires consideration of the use of voluntary consensus standards developed by voluntary consensus standards bodies.

The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for the proposed regulation.

This final rule contains no information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

In 2001, the General Services Administration (GSA) published amended Federal Advisory Committee Act (FACA) regulations providing administrative and interpretive guidelines and management controls for Federal agencies concerning the implementation of the Act (66 FR 37728; July 19, 2001). This final rule conforms NRC regulations with the amended GSA regulations issued in 2001. The final rule does not have a significant impact on state and local governments, particular geographical regions, or health, safety and the environment; nor does it impose substantial costs on licensees, the NRC or other Federal agencies. This constitutes the regulatory analysis for this final rule.

As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the Commission certifies that this final rule does not have a significant economic impact on a substantial number of small entities. The final rule does not impose any obligation or have any financial impact on entities, including any regulated entities that may be “small entities,” as defined by the Regulatory Flexibility Act (5 U.S.C. 601(3)), or under the size standards established by the NRC in 10 CFR 2.810.

The NRC has determined that a backfit analysis is not required for this final rule because these amendments do not include any provisions that would impose backfits as defined in 10 CFR Chapter 1.

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

The Commission is announcing the effective date of revisions to the regulations at 11 CFR 104.3, 104.8, 104.9, 104.14, and 113.1 regarding brokerage loans and lines of credit. See Explanation and Justification for Brokerage Loans and Lines of Credit, 67 FR 38353 (June 4, 2002). These rules implement Public Law 106-346 (Department of Transportation and Related Agencies Appropriations Act, 2001, 114 Stat. 1356 (2000)), which amended the Federal Election Campaign Act of 1971, 2 U.S.C. 431 et seq. , (“the Act” or “FECA”). Under the new regulations, candidates may receive, and repay, advances from their brokerage accounts, credit cards, home equity lines of credit, or other lines of credit without such advances constituting “contributions” or “expenditures” under the Act. In addition, the new regulations require reporting of the receipt and repayment of such advances.

Under the Administrative Procedures Act, 5 U.S.C. 553(d), and the Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1), agencies must submit final rules to the Speaker of the House of Representatives and the President of the Senate and publish them in the Federal Register at least 30 calendar days before they take effect. The final rules on Brokerage Loans and Lines of Credit were transmitted to Congress on May 28, 2002. Thirty legislative days expired in the Senate on July 19, 2002, and in the House of Representatives on July 26, 2002.

In addition, please note, that as part of the rulemakings implementing the Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, 116 Stat. 81 (March 27, 2002), the Commission reorganized 11 CFR 100.7 and 100.8. The final rules regarding brokerage loans and lines of credit that amended 11 CFR 100.7(b)(11) and (22), and 100.8(b)(12) and (24) were incorporated into the reorganization at new 11 CFR 100.82 and 100.83, and 100.142 and 100.143, respectively. See Distribution Table in the final rules for Reorganization of Regulations on “Contribution” and “Expenditure,” 67 FR 50582 (Aug. 5, 2002). Because the final rules for Reorganization of Regulations on “Contribution” and “Expenditure” became effective on November 6, 2002, the revisions to 11 CFR 100.7(b) and 100.8(b) have been superseded. Therefore, this notice does not establish an effective date for the revisions to these sections.

The Commission also revised FEC Form C-1, C-P, and C-P-1 and their respective instructions. The revised forms and instructions are also effective as of December 31, 2002.

The Home Mortgage Disclosure Act (HMDA; 12 U.S.C. 2801 et seq. ) requires most mortgage lenders located in metropolitan areas to collect data about their housing-related lending activity. Annually, lenders must file reports with their federal supervisory agencies and make disclosures available to the public. The Board's Regulation C (12 CFR part 203) implements HMDA.

Provisions of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (codified at 12 U.S.C. 2808(b)) amended HMDA to expand the exemption for small depository institutions. Prior to 1997, HMDA exempted depository institutions with assets totaling $10 million or less, as of the preceding year-end. The statutory amendment increased the asset-size exemption threshold by requiring a one-time adjustment of the $10 million figure based on the percentage by which the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPIW) for 1996 exceeded the CPIW for 1975, and provided for annual adjustments thereafter based on the annual percentage increase in the CPIW. The one-time adjustment increased the exemption threshold to $28 million for 1997 data collection.

Section 203.3(a)(1)(ii) of Regulation C provides that the Board will adjust the threshold based on the year-to-year change in the average of the CPIW, not seasonally adjusted, for each twelve-month period ending in November, rounded to the nearest million. Pursuant to this section, the Board raised the threshold to $29 million for 1998 data collection, raised it to $30 million for 1999 data collection, and kept it at that level for data collection in 2000. The Board raised the threshold to $31 million for data collection in 2001 and to $32 million for data collected in 2002.

During the period ending November 2002, the CPIW increased by 1.27 percent. As a result, the exemption threshold remains at $32 million. Thus, depository institutions with assets of $32 million or less as of December 31, 2002, are exempt from data collection in 2003. An institution's exemption from collecting data in 2003 does not affect its responsibility to report the data it was required to collect in 2002.

The Board is amending comment 3(a)-2 of the staff commentary to implement the increase in the exemption threshold. Under the Administrative Procedure Act, notice and opportunity for public comment are not required if the Board finds that notice and public comment are unnecessary. 5 U.S.C. 553(b)(B). Regulation C establishes the formula for determining adjustments to the exemption threshold, if any, and the amendment to the staff commentary merely applies the formula. This amendment is technical and not subject to interpretation. For these reasons, the Board has determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. Therefore, the amendment is adopted in final form.

Import Administration (IA) issues this final rule to add new regulations implementing the Steel Import Licensing and Surge Monitoring program originally outlined in the President's March 5, 2002, Proclamation about Steel Safeguards. This final rule requires all importers of steel products covered under the above mentioned steel safeguards proclamation to obtain a license from the Department of Commerce prior to completing their Customs import summary documentation. In order to obtain the license, the importer, or the importer's broker or agent, must fill out a form supplying certain statistical information to Commerce about the steel import. The license number will be generated immediately upon submitting the information. That license number will be needed to complete the Customs Entry documentation. The statistical information collected from the license forms will be used as the basis of IA's surge monitoring program and early warning system to alert the public about changes in the quantities, types, or origins of steel imports. IA will manage the information collection under the license system as well as the surge monitoring of the steel imports; however, it will be the responsibility of the U.S. Customs Service to enforce the licensing requirements at U.S. ports of entry. A public version of the surge monitoring system will be available on the following Web site: http://www.ia.ita.doc.gov/steel/license/. The proposed rule was published on July 18, 2002 (67 FR 47338) and it requested comments through August 19, 2002. The rationale and authority for the program was provided in the preamble to the proposed rule and is not repeated here.

Comments on Proposed Rules: Comments received during the public comment period set forth in the proposed rule are considered in this final rule. In all, thirty-one comments were received from a range of sources: importers, steel producers, ports, brokers, domestic industry, foreign governments, associations, consumers, and their counsel. Most comments focused on a particular aspect of the licensing program about which the author wanted an adjustment, but in general supported the licensing program. However, there were groups who simply stated that the filing burden outweighs the benefits. The comments are summarized below and listed in order of their frequency:

Comment 1: Customs Entry Number. As proposed, filers would be required to report the customs entry number on the license form in order to receive a steel import license. The majority of the commenters opposed requiring the customs entry number on the license form and recommended that filers be allowed to obtain a license without the number or that a revision procedure be instituted that permitted filers to submit the customs entry number at a later date.

According to these commenters, in most cases, the customs entry number would not be available until late in the importing process. Although it is possible for brokers to self-assign customs entry numbers prior to importation, in practice, it is relatively uncommon to do so much before the goods enter the country. The requirement of the customs entry number on the license form would likely result in importers obtaining licenses late in the process and in fact, would provide little incentive for an importer to obtain a license prior to the date the entry summary is filed. Any problems the importer may encounter in filing at that time could end up delaying the entry summary and the clearance of importation.

In addition, some commenters noted that entries into Foreign Trade Zones (FTZs) are not assigned a customs entry number meaning that filers would be unable to obtain a license for covered steel products entering an FTZ as set forth in the proposed rule. These commenters suggest handling FTZs in a separate manner or using the number assigned to the form for FTZ admission and/or status designation (Customs form 214), instead.

Response: The proposed requirement for the customs entry number on the license was designed to facilitate reconciliation between the import licensing system and the databases maintained by the U.S. Customs Service and the Census Bureau. Given the various concerns raised in the comments we received, providing the customs entry number on the license form will be optional, at this time. In addition, making the customs entry number optional, along with the separate changes pertaining to goods entering an FTZ ( see comment 13), resolves the anticipated problems with FTZ entries. However, should we determine at a later point that the reporting of the customs entry number on the license is needed to ensure the accuracy of the licensing system, we reserve the right to reinstate this requirement at any time through a subsequent rulemaking.

Comment 2: Administrative Burden and Redundant Data. A number of commenters suggested that the complexity of the proposed licensing requirement imposes costly administrative burdens on both importers and the U.S. government. They also noted that much of the information being requested was duplicative of other information requested of them by either Customs or Census. These commenters suggested that Customs could simply report the data it collects or that Commerce could use currently available Customs and Census data to monitor steel imports and respond to surges in the importation of safeguard exempt products. Some commenters suggested that, instead of the proposed system, Commerce issue quarterly licenses or a single annual license per importer.

Response: As part of the section 201 remedy, the President instructed the Secretary of the Treasury and the Secretary of Commerce to establish a system of import licensing to facilitate the monitoring of imports of certain steel products. This was done to ensure that import surges, particularly from those countries that were excluded from the President's remedies, did not undermine the relief provided by the President. Because import surges could quickly undermine the effectiveness of the remedy imposed by the President, it was crucial that the steel import licensing and monitoring system be able to quickly identify steel import trends, preferably by creating a system that could report steel imports in as close to “real time” as possible. Quarterly or annual steel licenses could not reliably meet this need.

There are legal constraints upon the use and dissemination of the import data collected by Customs and Census that preclude its use as a “real-time” steel import monitoring program. The import data collected by Customs can only be reported publicly through Census Bureau statistical releases—in the case of steel, there are two monthly releases, an early release of preliminary steel import statistics and the official release of final steel import statistics that occurs the following month. These two releases occur between three and seven weeks after the end of the importing month, as much as seven to eleven weeks after some of the goods have entered the country. Therefore, in order to facilitate monitoring of the remedy, a separate licensing program will be used to gather and disseminate steel import data sooner. Although some of the information may be redundant, the burden upon the importer and/or filer has been lessened by the automatic nature of the system and the relatively small amount of easily accessible data being requested. Commerce estimates that, using the automatic system, it takes no longer than ten minutes to fill out the license form and receive a license number.

Comment 3: Single Entry vs. Multiple Entry. In the proposed rule, Commerce outlined and requested comments on two other possible types of steel import licenses—a single license per entry and a multiple entry license. As set forth in the proposed rule, the import license would cover multiple products if the importer, exporter, manufacturer, and the country of origin and exportation were all the same. However, separate licenses would be required if any of the above information differed with respect to a given set of covered imported steel products. Therefore, a single Customs entry could theoretically require more than one steel import license. Under the single license per entry, one license would cover the entire entry even if there were several different importer, exporter or country of origin combinations. Under the multiple entry licensing procedure, a given quantity of covered steel could be imported over an extended period ( e.g. , 30 days) and the same license number would be reported until the quantity had been exhausted or the license expired.

Numerous conflicting comments were received regarding this issue, primarily on the issue of multiple entry licenses. Supporters of these two options argued that their greater ease and flexibility lessened the burden on the filer. Those commenters opposed to the multiple license option cited the difficulty in ensuring the accuracy of these licenses and reconciling the license data.

Response: From our review of the licensing proposals and the comments we received, we have determined that the difficulties with reconciliation and concerns over the potential inaccuracy of the resulting import licensing data raised by both domestic steel producers and consumers make a multiple license option both infeasible and undesirable. While the single license per customs entry option does not suffer from the same concerns about inaccuracy, the potential single license per entry systems that we examined did not seem to lessen the burden on importers, in fact, for those filers importing from a single source, the burden appears to be greater. Therefore, Commerce will implement the system outlined in the proposed rule but will not implement either of the two alternate licensing proposals.

Comment 4: Correction mechanism. Many domestic and foreign steel makers recommended that the DOC create a mechanism by which errors entered on the license form can be corrected. These commenters are concerned that the reported import volumes could be exaggerated if errors, modified shipments, returned merchandise or cancelled shipments cannot be corrected in the system. The commenters suggest that such changes prior to the filing of the entry summary are not infrequent and may result in misleading import data.

Response: As explained in the proposed rule, for security reasons, it is not possible to alter an existing license electronically once it has been issued. However, Commerce agrees with the commenters that the lack of a correcting mechanism in the system creates the potential for misleading import licensing data. Therefore, Commerce has created a separate module in the licensing system that allows filers to cancel an already issued license. Once the earlier license is cancelled, a new license can be obtained using the corrected information. This can be done electronically, or if the filer prefers, through a phone/fax option with Commerce.

Comment 5: Greater Reporting of Aggregate Data. According to the proposed rules, certain aggregate information collected from the license forms would be posted on a steel import surge monitoring Web site. This data would be reported at the broader section 201 remedy product category level. Propriety data including specific information entered on licenses (e.g., names of importers, exporters, manufacturers), would not be released to the public. Commerce encouraged parties to comment on the level of aggregated data reported and whether similar aggregate data on excluded products should be reported on the monitoring system Web site.

Commerce received a wide range of comments on this issue. Some commenters stated that a more detailed, HTS-number based level of aggregation should be used in the surge monitoring system and that the surge monitoring system should include data on excluded products as well, either by the special chapter 99 HTS number or at a minimum by the section 201 remedy category that they would have fallen into. These commenters claimed that the greater level of detail and the data on excluded products was necessary for the monitoring system to work effectively. It was also suggested that the transparent dissemination of comprehensive and detailed information would enhance the abilities of companies to adjust to changes in the market, enabling the monitoring system to work more efficiently.

However, a number of companies were concerned that more detailed information, including any data on excluded products, no matter how aggregated, could reveal protected proprietary information that could damage both the competitiveness of the foreign mills and their U.S. customers. One commenter suggested that, with respect to some of the highly-specific excluded products, there are only a small number of foreign companies that produce and sell the products, and that even revealing aggregate information could result in the disclosure of highly sensitive and confidential data to their competitors.

Response: From our review of the comments and our discussions with the U.S. Customs Service and the Bureau of Census, the two agencies that collect and/or disseminate information on imports, we have determined that the surge monitoring system as proposed offers the greatest possible level of data dissemination to the public that does not greatly increase the risk of inadvertently disclosing business proprietary information. At this time, Commerce will not report separate data on excluded products in its surge monitoring system but will continue to monitor such products closely and share such information it deems necessary with the appropriate government agencies.

Comment 6: Duration of the Import License. Under the proposed rules, the steel import license can be applied for up to 30 days prior to the expected date of importation and until the date of filing of the entry summary documents. Most commenters argued that the 30-day period should be extended. One suggested that the quarterly system would be much easier to comply with for the importing community. Others recommended that the current filing period should be extended an additional 45 to 60 days.

Several commenters argued that, instead of the proposed system which allows filers anytime during the 45 days prior to and including the filing of entry summary documents, filers should be required to obtain an import license at least 30 days prior to importation. They argued that this would allow the Department of Commerce and the U.S. Customs Service to verify that the importer is complying with the requirements of the import licensing program prior to entry of the goods.

Response: Based on the comments received, we have extended the filing period. Filers will now be able to apply for a steel license up to 60 days prior to the expected date of importation and until the date of filing of the entry summary documents, or in the case of FTZ entries, the filing of Customs form 214. The steel import license is valid for 75 days; however, import licenses that were valid on the date of importation but expired prior to the filing of entry summary documents will be accepted.

As to the suggested change to require that an import license be obtained at least 30 days prior to importation, we have determined that such a system would not be feasible for several reasons. First, for a considerable portion of the steel trade, which comes across the border from either Canada or Mexico, the requested license data may not be known 30 days prior to importation. Second, should licensed shipments arrive before the 30 day period ended, there would be no appropriate legal means of denying or delaying the entry. Finally, the decision to make the import license a condition of entry summary rather than a condition of importation was made consistent with the objective of collecting data for surge monitoring purposes rather than inhibiting trade. In addition, denying entry to unlicensed steel shipments would impose a significant administrative burden on Customs and could snarl ports if shiploads of steel were held up because of missing licenses. To ensure compliance, Customs will consider entries of covered products without a license to be incomplete, subjecting the entry to liquidated damages (see 67 FR 51800).

Comment 7: Port of Entry. Commerce received conflicting comments regarding the need to identify and/or report the port of entry. Certain commenters argued that filers should not be required to identify the expected port of entry on the license because the ultimate port of entry may change after the license is issued. Other commenters argued that not only should the port of entry be required on the license but that Commerce should disseminate such information in its public monitoring system. This would allow U.S. steel producers to track the regions where imported steel may be anticipated to enter, thus assisting the industry in quickly identifying and responding to potential surges.

Response: We continue to believe that the identification of the expected port of entry provides needed monitoring information to the government and does not impose an unnecessary burden on filers. However, because the dissemination of aggregate data on a port of entry basis greatly increases the possible inadvertent disclosure of proprietary information, Commerce does not intend to publicly release such data at this time.

Comment 8: Access to the System. Several commenters suggested that there should be some method to obtain a copy of the license at a later date in order to comply with the U.S. Customs Service's record keeping requirements. A number of commenters also argued that both the importer and the importer's customs broker should have access to the importer's data.

Response: As explained previously, for security purposes, filers can only print out the license at the time of filing and are unable to retrieve licenses from the system once they are issued. However, in response to the comments received, Commerce will generate an email version of the license, upon request, to the filer at the email address listed in the filer's online registration form. Because of the proprietary nature of much of the information contained in the license form, Commerce will send the information to the filer only. If that person wants to share the license email with others, it can be done at their discretion from their computer.

Comment 9: “Unknown” Manufacturer and/or Exporter. The Department of Commerce encouraged parties to comment on whether filers should be allowed to enter “unknown” in the fields for exporter and manufacturer name. Commerce received a number of comments on this issue, divided into two groups.

Several commenters argued that a filer, particularly an importer's customs broker, might not know the exporter or manufacturer when filling out the license and the ability to fill out “unknown” in the field would allow the license form to go forward. Not allowing for such an option could delay the filing of the license or even encourage the filling of misleading information.

Others argued that allowing filers to report “unknown” in the exporter and manufacturer fields would compromise the veracity of the data derived from the licensing form. They argued that the information regarding the identity of the manufacturer and the exporter is essential to analyzing trends and is not difficult for the filer to obtain.

Response: Based on the comments received, Commerce will require filers to identify the exporter but will allow a filer to fill out “unknown” in the manufacturer field on the license form, recognizing that certain filers, particularly customs brokers, may not have such information readily available. Unlike the manufacturer's name, requiring the name of the exporter on the license form should impose little burden on the filer. Filers are encouraged to identify the manufacturer on the license and should the DOC discover a repeated pattern in a company's usage of “unknown” manufacturers or exporters, the DOC reserves the right to contact the filer regarding the difficulty in obtaining such information.

Comment 10: Identifying NAFTA Origin. Commerce received two comments regarding the country of origin designation for NAFTA merchandise under the licensing system. The commenters raised concern that the different rules for determining country of origin for imports from NAFTA countries would cause unnecessary concern about what might appear to be increases in imports of goods from NAFTA countries but in fact only reflected differing country of origin standards between the license system and other import reporting systems. The commenters suggested that the licenses allow filers the option of identifying the NAFTA-based country of origin designation along with the standard country of origin designation for the product.

Response: The option for reporting a second NAFTA-based country of origin designation was strongly opposed by the U.S. Customs Service as both confusing and unnecessary since the standard country of origin rules were being used for the license system. Commerce understands the concerns raised by the commenters but believes that these can be addressed as needed when evaluating the import trends.

Comment 11: Foreign Filers. As proposed, only filers with a “U.S. address” may register and obtain a user identification number. Several commenters suggested that foreign filers and importers of record located outside the United States be allowed to register under the system.

Response: Foreign filers are not prohibited from registering to use the system as long as they have a U.S. street address; otherwise, they will have to find another party with a U.S. street address to file for them. Commerce believes this requirement necessary in order to address potential problems that may arise with a filer's license.

Comment 12: Coverage. A number of comments were received regarding the coverage of the license system. Several commenters suggested expanding coverage to all steel products, not simply those included in the section 201 remedy. Others argued that coverage should be more limited and that licenses should not be required on excluded products. Finally, some commenters argued that with respect to excluded products under quota, only those firms that applied for product exclusions, be allowed to apply for licenses on those excluded products but that these firms should be granted the rights to transfer their claims to a particular license if they no longer need to import the product.

Response: The coverage of the import licensing system will remain as set forth in the proposed rules. The licensing system was instituted as part of the safeguard measures announced by the President on March 5, 2002 and was intended to facilitate the administration and enforcement of those measures. As such, it is proper that the licensing system only apply to those products needed to fulfill that goal—the product categories set forth in the President's remedies including products from excluded countries and those products subject to product-specific exclusions.

As to limitations on licenses for excluded products under quota—Commerce will not limit licenses on excluded products to those firms that requested the product exclusions. Product exclusions are not granted to a specific firm or country. Product exclusion quotas are filled on a first come, first served basis.

Comment 13. Foreign Trade Zones (FTZs). As set forth in the proposed rule, steel entering into an FTZ would require two licenses, one upon entry into the zone and one when the goods leave the zone and enter for consumption. Some commenters argued that such a double licensing system was overly burdensome, could shift border FTZ trade to Canada or Mexico and could lead to over reporting. Others stated that the main concern with FTZs was ensuring that steel entering into, and ultimately consumed, in an FTZ be accurately accounted for in the surge monitoring program and suggested that an alternative to the double licensing system might be possible. Another commenter suggested that licensing should only be done when the goods enter an FTZ as this would address the concerns of most involved with the least amount of burden.

Response: Based on our review of the comments and considerable discussion with agencies involved in administering FTZs, we have determined that proposed double licensing system for FTZs is overly burdensome and unnecessary for the effective administration of the licensing system. Licenses will only be required on covered steel products entering an FTZ; steel products leaving the zone and entered for consumption will not require a license. The import license number(s) must be reported on the form for FTZ admission and/or status designation (Customs form 214) at the time of filing.

Comment 14: Temporary Importation Bonds. Commerce received comments arguing that temporary importation bond entries—goods entered free of duty provided within one year to be re-exported to non-U.S. destinations—should not be subject to the proposed licensing system.

Response: We agree that such entries will not require import licenses.

Comment 15: Informal Entries. Commerce received several comments regarding informal entries. One comment suggested expanding the value of informal merchandise from $2,000 to $5,000 because such entries would still be insignificant, another asked for clarification of the limits set forth in the Customs regulations on Chapter 99 steel imports, while a third urged that the exemption for informal entries not become a means for importers to avoid their import license obligations.

Response: The exemption for informal entries is based on the value limits set forth by Customs—expanding it to higher valued merchandise is likely to cause unnecessary confusion. As to the value limit for Chapter 99 steel products, please see 19 CFR 143.21(a) and (h) for the specific limits applicable to those goods.

Comment 16: Additional Products in License Form. Two commenters suggested that the license form should allow space for more products—at a minimum, the license should have room for up to six products.

Response: We agree. Commerce has modified the form to allow for up to six products and an additional page can be requested.

Comment 17: Usurpation of USTR Authority. One commenter argued that the surge monitoring system as proposed by Commerce usurps USTR's authority to change a developing country's exempt status by presupposing certain measurements in its presentation of data.

Response: The design of the steel import licensing and surge monitoring system in no way usurps USTR's authority to determine a developing country's exempt status. Nor does it presuppose certain outcomes in its presentation of data. The data is being presented in a manner consistent with the President's remedies and the categories set forth by the ITC. Tables, charts and comparison data have been designed to assist the user and do not mandate how USTR uses the data in its import analysis. As directed by the President, Commerce and Treasury developed the import licensing system to assist USTR in its analysis of developing country import trends. This system was designed with input from USTR and other government agencies, and like all such proposed rulemaking went through an interagency clearance process that included USTR.

The Chief Counsel for Regulation certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, will not have a significant impact on a substantial number of small entities as that term is defined in the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq. A summary of the factual basis for this certification is below.

This proposed rule will not have a significant impact on a substantial number of companies. In most cases, it is anticipated that it will be brokerage companies that apply for the steel import licenses. Most brokerage companies that are currently involved in filing required documentation for importing goods into the U.S. specifically, Customs documentation, are accustomed to Customs' automated systems. Today, more than 99% of the Customs filings are handled electronically. Therefore, the web-based nature of this simple license form should not be a significant obstacle to any firm in completing this new requirement. There is no cost to register for a company-specific user code and no cost to file for the license. Each license form is expected to take at most roughly 10 minutes to complete using much of the same information the brokers will use to complete their Customs Entry Summary Documentation. This is the only additional requirement on the importer's broker to fulfill U.S. entry requirements to import each covered steel product shipment.

This final rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). These requirements have been approved by OMB (OMB No.: 0625-0245; Expiration Date: 09/30/05). Public reporting for this collection of information is estimated to be 10 minutes per response, including the time for reviewing instructions, and completing and reviewing the collection of information. All responses to this collection of information are voluntary, and will be provided confidentially to the extent allowed by law. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Reports Clearance Officer, Room 4001, International Trade Administration, Department of Commerce, 14th and Constitution Avenue, NW., Washington, DC 20230.

It has been determined that this rule is not significant for purposes of EO 12866.

This rule does not contain policies with federalism implications as that term is defined in EO 13132.

FDA periodically issues regulations requiring changes in the labeling of food. If the effective dates of these labeling changes were not coordinated, the cumulative economic impact on the food industry of having to respond separately to each change would be substantial. Therefore, the agency periodically has announced uniform compliance dates for new food labeling requirements (see, e.g., the Federal Registers of October 19, 1984 (49 FR 41019), December 24, 1996 (61 FR 67710), December 27, 1996 (61 FR 68145), December 23, 1998 (63 FR 71015), and November 20, 2000 (65 FR 69666)). Use of a uniform compliance date provides for an orderly and economical industry adjustment to new labeling requirements by allowing sufficient lead time to plan for the use of existing label inventories and the development of new labeling materials. This policy serves consumers' interests as well because the cost of multiple short-term label revisions that would otherwise occur would likely be passed on to consumers in the form of higher prices.

The agency has determined under 21 CFR 25.30(k) 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 final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 is not required.

FDA has examined the economic implications of this final rule as required by Executive Order 12866. Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity effects). Executive Order 12866 classifies a rule as significant if it meets any one of a number of specified conditions including having an annual effect on the economy of $100 million or adversely affecting in a material way a sector of the economy, competition, or jobs. A regulation also is considered a significant regulatory action under Executive Order 12866 if it raises novel legal or policy issues. FDA finds that this final rule is not a significant regulatory action as defined by Executive Order 12866. In addition, in accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, OMB has determined that this final rule is not a major rule for purposes of congressional review. The establishment of a uniform compliance date does not impose either costs or benefits. For future labeling regulations, FDA will assess the costs and benefits of the uniform compliance date as well as the option of setting other dates.

Because FDA has issued this final rule without first publishing a general notice of proposed rulemaking, a final regulatory analysis is not required by the Regulatory Flexibility Act (5 U.S.C. 601-612). Nonetheless, the uniform compliance date does not impose any burden on small entities. The agency will assess the costs and benefits of setting alternative dates as part of the regulatory flexibility analyses of future labeling regulations.

Title II of the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires cost-benefit and other analyses before any rulemaking if the rule would include a “Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year.” The current inflation-adjusted statutory threshold is $112 million. FDA has determined that this final rule does not constitute a significant rule under the Unfunded Mandates Reform Act.

FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies 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. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.

This action is not intended to change existing requirements for compliance dates contained in final rules published before January 1, 2003. Therefore, all final FDA regulations published in the Federal Register before January 1, 2003, will still go into effect on the date stated in the respective final rule.

The agency generally encourages industry to comply with new labeling regulations as quickly as feasible, however. Thus, when industry members voluntarily change their labels, it is appropriate that they incorporate any new requirements that have been published as final regulations up to that time.

In rulemaking that began with publication of a proposal on April 15, 1996 (61 FR 16422), and ended with a final rule on December 24, 1996, FDA provided notice and an opportunity for comment on the practice of establishing uniform compliance dates by issuance of a final rule announcing the date. Receiving no comments objecting to this practice, FDA finds any further rulemaking unnecessary for establishment of the uniform compliance date. Nonetheless, under 21 CFR 10.40(e)(1), FDA is providing an opportunity for comment on whether this uniform compliance date should be modified or revoked.

Interested persons may submit to the Dockets Management Branch (see ADDRESSES ), written or electronic comments regarding this document. Submit a single copy of electronic comments to http://www.fda.gov/dockets/ecomments or two hard copies of any written comments, except that individuals may submit one hard copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Received comments may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday. After its review of any comments received to this final rule, FDA will either publish a document providing its conclusions concerning the comments or will initiate notice and comment rulemaking to modify or revoke the uniform compliance date established by this final rule.

The new uniform compliance date will apply only to final FDA food labeling regulations that require changes in the labeling of food products and that publish after January 1, 2003, and before December 31, 2004. Those regulations will specifically identify January 1, 2006, as their compliance date. All food products subject to the January 1, 2006, compliance date must comply with the appropriate regulations when initially introduced into interstate commerce on or after January 1, 2006. If any food labeling regulation involves special circumstances that justify a compliance date other than January 1, 2006, the agency will determine for that regulation an appropriate compliance date, which will be specified when the final regulation is published.

Phoenix Scientific, Inc., 3915 South 48th St. Terrace, P.O. Box 6457, St. Joseph, MO 64506-0457, filed ANADA 200-176 that provides for the veterinary prescription use of PRAZITECH (praziquantel) Injection in dogs and cats for the removal of various species of cestodes (tapeworms). Phoenix Scientific's PRAZITECH Injection is approved as a generic copy of Bayer Corp.'s DRONCIT 5.68% Injectable Solution, approved under NADA 111-607. The ANADA is approved as of October 16, 2002, and the regulations are amended in 21 CFR 522.1870 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.

The agency 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 the congressional review requirements in 5 U.S.C. 801-808.

The Burlington Northern Santa Fe (BNSF) Railroad requested a temporary deviation on December 2, 2002 for the operation of the Crescent Railroad Drawbridge, Mile 481.4, Upper Mississippi River near Rock Island, Illinois to allow the bridge owner time for preventive maintenance. The drawbridge operation regulations found at 33 CFR 117.5, require the drawbridge to open on signal. In order to perform required annual maintenance, the bridge will open on signal if at least 6 hours advance notice is given. This deviation allows the bridge to operate on a 6-hour advance notice to open for navigation for 53 days starting at 12:01 a.m., January 7, 2003 and ending at 12:01 a.m., March 1, 2003. This maintenance period was scheduled during the winter months to lessen the impact on vessel traffic which will increase when Lock Nos. 17 and 19 reopen on March 1, 2003.

The Crescent Railroad Drawbridge provides a vertical clearance of 25.7 feet above normal pool in the closed to navigation position. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. The drawbridge will be able to open for emergencies during this period. There are no alternate routes for waterway traffic to bypass the Crescent Railroad Drawbridge. This deviation has been coordinated with waterway users. No objections were received.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.

On October 30, 2002, we published a notice of proposed rulemaking (NPRM) entitled “Security Zones; San Francisco Bay, California” in the Federal Register (67 FR 66086). We received no letters on the proposed rule. No public hearing was requested, and none was held.

On December 21, 2001, we issued a rule under COTP San Francisco Bay 01-012, and published that rule in the Federal Register (67 FR 7611, February 20, 2002) creating temporary section 165.T11-098 of Title 33 of the Code of Federal Regulations (CFR). Under temporary section 165.T11-098, which expired at 11:59 p.m. PDT on June 21, 2002, the Coast Guard established 100-yard security zones around all cruise ships and tank vessels that entered, were moored in, or departed from the San Francisco Bay and Delta ports.

On June 12, 2002, a change in effective period temporary rule was issued, under docket COTP San Francisco bay 02-012 and was published in the Federal Register (67 FR 42486, June 24, 2002), under the same previous temporary section 165.T11-098, which is set to expire at 11:59 p.m. on December 21, 2002. The Captain of the Port has determined the need for continued security regulations exits. Accordingly, this final rule creates a permanent regulation for security zones in the same locations covered by the temporary final rule published on February 20, 2002 (67 FR 7611) which was later extended by another rule published in the Federal Register on June 24, 2002 (67 FR 42486).

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register because the threat of maritime attacks is real as evidenced by the attack of a tanker vessel off the coast of Yemen and the continuing threat to U.S. assets as described in the President's finding in Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 2002) that the security of the U.S. is endangered by the September 11, 2001 attacks and that such disturbances continue to endanger the international relations of the U.S. See also Continuation of the National Emergency with Respect to Certain Terrorist Attacks, (67 FR 58317, September 13, 2002); Continuation of the National Emergency with Respect to Persons Who Commit, Threaten To Commit, Or Support Terrorism, (67 FR 59447, September 20, 2002). Additionally, a Maritime Advisory was issued to: Operators of U.S. Flag and Effective U.S. Controlled Vessels and other Maritime Interests, detailing the current threat of attack, MARAD 02-07 (October 10, 2002). The current temporary rule is set to expire December 21, 2002, and any delay in the effective date of this final rule is impractical and contrary to the public interest.

Since the September 11, 2001 terrorist attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia and Flight 93, the Federal Bureau of Investigation (FBI) has issued several warnings concerning the potential for additional terrorist attacks within the United States. In addition, the ongoing hostilities in Afghanistan and growing tensions in Iraq have made it prudent for U.S. ports to be on a higher state of alert because the Al-Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.

In its effort to thwart terrorist activity, the Coast Guard has increased safety and security measures on U.S. ports and waterways. As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures.

The Coast Guard also has authority to establish security zones pursuant to the Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq. ) and implementing regulations promulgated by the President in subparts 6.01 and 6.04 of part 6 of title 33 of the Code of Federal Regulations.

In this particular rulemaking, to address the aforementioned security concerns, and to take steps to prevent the catastrophic impact that a terrorist attack against a cruise ship and/or tank vessel would have on the public interest, the Coast Guard is establishing permanent security zones around and under cruise ships and tank vessels entering, departing, or moored or anchored within the San Francisco Bay and Delta ports. These security zones help the Coast Guard to prevent vessels or persons from engaging in terrorist actions against cruise ships and tank vessels. Due to these heightened security concerns, and the catastrophic impact a terrorist attack on a cruise ship and/or tank vessel would have on the multiple passengers on board and surrounding area and communities, security zones are prudent for these types of vessels.

We received no letters commenting on the proposed rule. No public hearing was requested, and none was held. Therefore, we have made no changes and will implement the provisions of the proposed rule as written.

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

Although this regulation restricts access to the zones, the effect of this regulation will not be significant because: (i) The zones will encompass only a small portion of the waterway; (ii) vessels will be able to pass safely around the zones; (iii) vessels may be allowed to enter these zones on a case-by-case basis with permission of the Captain of the Port, or his designated representative; and (iv) vessels are able to safely transit around the zones while a vessel is moored or at anchor in the San Francisco Bay and Delta ports.

The sizes of the zones are the minimum necessary to provide adequate protection for the cruise ships and laden tank vessels, their crews and passengers, other vessels operating in the vicinity of the cruise ships and laden taken ships and their crews, adjoining areas, and the public. The entities most likely to be affected are commercial vessels transiting the main ship channel en route the San Francisco Bay and Delta ports and pleasure craft engaged in recreational activities and sightseeing. The security zones will prohibit any commercial vessels from meeting or overtaking a cruise ship and/or a tank ship in the main ship channels, effectively prohibiting use of the channels. However, the moving security zones will only be effective during cruise ship and tank ship transits, which will last for approximately 30 minutes.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

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

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

We have considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation because we are establishing a security zone. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

We did not publish a notice of proposed rulemaking (NPRM) for this rule. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM because the threat of maritime attacks is real and imminent.

The October 6, 2002, attack of a French oil tanker off the coast of Yemen and the continuing threats to U.S. assets as described in the President's finding in Executive Order 13273 of August 21, 2002 in the Federal Register (67 FR 56215, September 3, 2002) demonstrate continued disturbances that further endanger the security and international relations of the United States. See also Continuation of the National Emergency with Respect to Certain Terrorist Attacks of September 13, 2002 in the Federal Register (67 FR 58317); Continuation of the National Emergency With Respect To Persons Who Commit, Threaten To Commit, Or Support Terrorism September 20, 2002 in the Federal Register (67 FR 59447). As a result, a heightened level of security continues to be maintained around all liquefied hazardous gas (LHG) tank vessels near the ports of Los Angeles and Long Beach. These security zones are needed to protect the United States and more specifically the people, waterways, and properties near San Pedro Bay.

Although we had anticipated using the effective period of the current temporary final rule to engage in notice and comment rulemaking, the Captain of the Port has decided to extend the effective period for 3 months to allow sufficient time to properly develop permanent regulations tailored to the present and foreseeable security environment. This extension preserves the status quo within the Port while a permanent rule is developed.

For the reasons stated in the paragraphs above under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

Since the September 11, 2001 terrorist attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia and Flight 93, the Federal Bureau of Investigation (FBI) has issued several warnings concerning the potential for additional terrorist attacks within the United States. In addition, the ongoing hostilities in Afghanistan and growing tensions in Iraq have made it prudent for U.S. ports to be on a higher state of alert because the al Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.

In this particular rulemaking, to address the aforementioned security concerns and to take steps to prevent the catastrophic impact that a terrorist attack against a LHG tank vessel would have on the public interest, the Coast Guard has temporarily suspended current LHG safety zone regulations and temporarily replaced them with security zones around and under any LHG tank vessels entering, departing, or moored within the ports of Los Angeles and Long Beach. These security zones will help the Coast Guard to prevent vessels or persons from engaging in terrorist actions against LHG tank vessels.

Current regulations issued under 33 CFR 165.1151 provide for safety zones around LHG tank vessels that are anchored, moored, or underway near the Los Angeles-Long Beach port areas. However, these safety zones are inadequate to address increased security requirements for LHG tank vessels.

On January 28, 2002, we published a temporary final rule (TFR) entitled “Security Zones; San Pedro Bay, California” in the Federal Register (67 FR 3814). In that rule, which expired on June 15, 2002, we temporarily replaced the LHG safety zones with security zones of a similar size and location.

On June 19, 2002, we published a TFR entitled “Security Zones; Liquefied Hazardous Gas Tank Vessels, San Pedro Bay, CA” in the Federal Register (67 FR 41625). In that rule, which is set to expire on December 21, 2002, we continue to temporarily replace the safety zones with security zones for LHG tank vessels near Los Angeles-Long Beach. Although we had anticipated using the effective period of this TFR to engage in notice and comment rulemaking, the Captain of the Port has decided to extend the effective period again to allow sufficient time to properly develop permanent regulations tailored to the present and foreseeable security environment. Accordingly, this rulemaking extends the effective period of the temporary security zones for 3 months.

This rule establishes a security zone in the waters of San Pedro Bay around all LHG tank vessels that are anchored, moored, or underway within the Los Angeles or Long Beach port area. These security zones will take effect upon entry of any LHG tank vessel into the waters within 3 nautical miles outside the Federal breakwaters encompassing San Pedro Bay and will remain in effect until that vessel departs the 3 nautical mile limit. Vessels covered by a security zone can be additionally identified by an on-scene escorting law enforcement vessel with a blue flashing light. The following areas are security zones:

(1) The waters within a 500-yard radius around a LHG tank vessel that is anchored at a designated anchorage either inside the Federal breakwaters bounding San Pedro Bay or outside at designated anchorages within 3 nautical miles of the breakwater;

(2) The waters within a 500 yard radius around a LHG tank vessel that is moored at any berth within the Los Angeles or Long Beach port area;

(3) The waters within 1,000 yards ahead and 500 yards on all other sides of a LHG tank vessel that is underway on the waters either inside the Federal breakwaters bounding San Pedro Bay or on the waters within 3 nautical miles of the breakwater.

These security zones are needed for national security reasons to protect LHG tank vessels, the public, transiting vessels, adjacent waterfront facilities and the ports from potential subversive acts, accidents, or other events of a similar nature. Entry into these moving or fixed security zones is prohibited unless authorized by the Captain of the Port. Vessels already moored or anchored when these security zones take effect will not be required to get underway to avoid either the moving or fixed zones unless specifically ordered to do so by the Captain of the Port or his designated representative.

In its effort to thwart terrorist activity, the Coast Guard has increased safety and security measures on U.S. ports and waterways. As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. The Coast Guard also has authority to establish security zones pursuant to the Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq. ) and implementing regulations promulgated by the President in subparts 6.01 and 6.04 of part 6 of title 33 of the Code of Federal Regulations.

Vessels or persons violating this section will be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant to 33 U.S.C. 1232, any violation of the security zone described herein, is punishable by civil penalties (not to exceed $27,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000), and in rem liability against the offending vessel. Any person who violates this section, using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation, also faces imprisonment up to 12 years. Vessels or persons violating this section are also subject to the penalties set forth in 50 U.S.C. 192: seizure and forfeiture of the vessel to the United States, a maximum criminal fine of $10,000, and imprisonment up to 10 years, and a civil penalty of not more than $25,000 for each day of a continuing violation.

The Captain of the Port will enforce these zones and may enlist the aid and cooperation of any Federal, State, county, municipal, and private agency to assist in the enforcement of the regulation. This regulation is proposed under the authority of 33 U.S.C. 1226 in addition to the authority contained in 50 U.S.C. 191 and 33 U.S.C. 1231.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979) because these zones will encompass a small portion of the waterway for a limited period of time. Delays, if any, are expected to be less than 30 minutes in duration. Vessels and persons may be allowed to enter these zones on a case-by-case basis with permission of the Captain of the Port.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

We expect this rule will affect the following entities, some of which may be small entities: The owners and operators of private and commercial vessels intending to transit or anchor in a small portion of the ports of Los Angeles or Long Beach near a LHG tank vessel that is covered by these security zones. The impact to these entities would not, however, be significant since these security zones will encompass a small portion of the waterway for a limited period of time. Delays, if any, are expected to be less than 30 minutes in duration.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provision or operations for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

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

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

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

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

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

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation because we are establishing security zones. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

The Postal Service published a proposed rule on December 27, 2000, to amend 39 CFR 266.9 to apply certain Privacy Act exemptions to Privacy Act systems of records 050.080. Pursuant to the Bank Secrecy Act, 31 U.S.C. 5318(g), anti-money laundering provisions, and implementing regulations of the U.S. Treasury, 31 CFR part 103, the Postal Service is required to report to the Department of the Treasury certain suspicious financial transactions that are relevant to a possible violation of law or regulation. Further, the Postal Service is prohibited from notifying any participant in the transaction that a report has been made. 31 U.S.C. 5318(g)(2).

In order to permit compliance with the non-notification requirement of the Bank Secrecy Act, the Postal Service is adopting an exemption from the Privacy Act provisions related to individual access. Under 5 U.S.C. 552a(k)(2), the head of an agency may promulgate rules to exempt a system of records from certain provisions of 5 U.S.C. 552a if the system of records is “investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) of this section.” Comments on the proposed rule were due on or before January 26, 2001. We did not receive any comments. Therefore, the rule is adopted as final without change.

The Postal Service is hereby giving notice of a final rule to exempt the Suspicious Transaction Report system from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2). The reasons for exempting the system of records from sections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f) of the Privacy Act are set forth in the proposed rule.

Throughout this document, the terms “you” and “me” refer to the reader of this rulemaking and to sources subject to the State rule addressed by this proposed rulemaking, and the terms “we,” “us,” or “our” refer to the EPA.

EPA is approving a revision to Indiana's SIP to allow the Department of the Navy to use military specification coatings containing a VOC content up to 5.45 pounds of VOC per gallon of coating less water for the projectile renovations operations in Building 2728 at NSWC Crane.

SIP rule 326 IAC 8-2-9 (General Provisions Relating to VOC Rules: Miscellaneous Metal Coating Operations) generally prohibits miscellaneous metal coating operations from using coatings with a VOC content greater than 3.5 pounds of VOC per gallon of coating less water. NSWC Crane submitted a petition to the Commissioner of IDEM on July 13, 1999 requesting the use of military specification coatings containing a VOC content greater than 3.5 pounds per gallon. NSWC Crane requested the change because it could not locate any low VOC substitute that would meet the military specification TT-E-516, TT-P-664D, or TT-T-306 requirements. These coatings are required to meet the performance specifications for coating of the military projectiles currently manufactured at NSWC Crane.

According to 326 IAC 8-1-7 (General Provisions Relating to VOC Rules: Military Specifications), if emission limitations established in 326 IAC Article 8 (General Provisions Relating to VOC) conflict with military specifications, the owner or operator of the source may petition the Commissioner of IDEM to have military specifications be the controlling limitation. If the Commissioner approves the petition, the modified limitation shall be submitted to EPA as a SIP revision.

IDEM evaluated the petition for military specifications and the proposed SIP limit of 5.45 pounds of VOC per coating less water. The coatings that NSWC Crane is currently using meet the requirements of Composition L, which according to the corresponding Military Specifications is the low-VOC version of these materials. Based on the Material Safety Data Sheets for the materials used in this operation, IDEM calculated that the VOC content for all the coatings used ranged from 4.88 to 5.45 pounds of VOC per coating less water. Therefore, the 5.45 pounds of VOC per coating less water is the highest allowable limit which will enable all coatings in this operation to be in compliance.

On April 3, 2000, IDEM submitted to EPA the modified limitations as a revision to the SIP. NSWC Crane submitted additional information on October 18, 2001 and June 28, 2002, in response to requests for additional justification from IDEM and EPA. In this notice, we are taking action to approve the submittal.

In the early 1990s Indiana adopted RACT regulations for the entire State. We approved these regulations and incorporated them into Indiana's SIP for ozone (40 CFR 52.770). NSWC Crane manufactures ammunition, rockets and other military ordinances and, under these rules, is subject to a limit of 3.5 pounds of VOC per gallon of coating less water for coatings used on military projectiles.

Our approval of alternate control requirements for NSWC Crane exempts the painting operations in Building 2728 from the 3.5 pounds of VOC per gallon of coating limit required for any miscellaneous metal coating operation and will allow the use of military specification coatings, containing a VOC limit of up to 5.45 pounds of VOC per gallon of coating less water.

EPA reviewed the military specifications provided by NSWC Crane and submitted by IDEM, and independently investigated the availability of alternate coatings. EPA has determined that there are currently no approved alternative coatings available that meet the military specifications for the 155mm projectiles painted at NSWC Crane.

In making this determination, EPA consulted with the Armament Research Development and Engineering Center (ARDEC), in Picatinny, NJ, the agency responsible for identifying the paint requirements for the 155mm projectiles used at NSWC Crane. ARDEC is currently executing a low-VOC ammunition coating project to address the environmental coating issue at the NSWC Crane facility and is in the process of testing VOC compliant coatings to determine if they will comply with military specifications used at NSWC Crane. The laboratory testing phase of selected VOC compliant coating candidates was completed this summer and the next phase consists of field testing selected coatings to determine if they meet the specifications. Once ARDEC identifies that complying coatings are available, NSWC Crane will need to modify its operations to allow for the use of coatings complying with the 3.5 pounds of VOC per gallon of coating less water.

NSWC Crane is located in Martin County which is designated as attainment for ozone. All available monitoring data indicates that the area is in attainment of the 1-hour standard and regional modeling indicates that the area will meet the 8-hour standard when Indiana's nitrogen oxide rule is in effect. Since 1999, NSWC Crane has been operating under a State-approved variance which allows emissions equivalent to the emissions allowed under the SIP revision that we are approving with this action. Consequently, our approval of the alternate control requirements for NSWC Crane should not interfere with attainment or continued maintenance of the ozone standard.

Based on the rationale set forth above, we are approving a revision to the VOC control requirements for the painting operations in Building 2728 at NSWC Crane. Our approval of this revision makes federally enforceable the portion of the State's October 12, 1999, Significant Source Modification No. SSM101-11153-00005, which establishes alternate control requirements for NSWC Crane.

We are publishing this action without prior proposal because we view this as a noncontroversial revision and anticipate no adverse comments. However, in a separate document in this Federal Register publication, we are proposing to approve the SIP revision should adverse written comments be filed. This action will be effective without further notice unless we receive relevant adverse written comment by January 30, 2003. Should we receive such comments, we will publish a final rule informing the public that this action will not take effect. Any parties interested in commenting on this action should do so at this time. If no such comments are received, this action will be effective on March 3, 2003.

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

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

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

The Congressional Review Act, 5 U.S.C. section 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 3, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

The current regulatory requirements of the Stratospheric Ozone Protection Program that limit production and consumption of ozone-depleting substances were promulgated by the Environmental Protection Agency (EPA or the Agency) in the Federal Register on December 20, 1994 (59 FR 65478), May 10, 1995 (60 FR 24970), August 4, 1998 (63 FR 41625), and October 5, 1998 (63 FR 53290). The regulatory program was originally published in the Federal Register on August 12, 1988 (53 FR 30566), in response to the 1987 signing of the Montreal Protocol on Substances that Deplete the Ozone Layer (Protocol). 1 The U.S. was one of the original signatories to the 1987 Montreal Protocol and the U.S. ratified the Protocol on April 4, 1988. Congress then enacted, and President Bush signed into law, the Clean Air Act Amendments of 1990 (CAA or the Act) that included Title VI on Stratospheric Ozone Protection. Today's actions amend the existing EPA regulations published under Sections 604, 605, 606 and 614 of the CAA governing the production and consumption of ozone-depleting substances. Today's amendments are designed to ensure the U.S. meets its obligations under the Protocol and the CAA.

EPA derives its authority for today's action from sections 602, 604, 605, 606, and 614 of the CAA. One of today's changes is made to reflect a decision taken by the Parties to the Protocol. EPA is acting in accordance with section 614 of the CAA in amending the regulations to reflect this change. Section 614 of the CAA states that Title VI of the Act “shall be construed, interpreted, and applied as a supplement to the terms and conditions of the Montreal Protocol, as provided in Article 2, paragraph 11 thereof, and shall not be construed, interpreted, or applied to abrogate the responsibilities or obligations of the United States to implement fully the provisions of the Montreal Protocol. In the case of conflict between any provision of [Title VI of the CAA] and any provision of the Montreal Protocol, the more stringent provision shall govern.” Section 606 of the CAA allows EPA to accelerate the phaseout schedules found in sections 604 and 605 of the Act. Today's action adjusts the regulatory framework promulgated under section 606, while retaining the accelerated phaseout dates.

The requirements contained in the final rules published in the Federal Register on December 20, 1994 (59 FR 65478), May 10, 1995 (60 FR 24970), August 4, 1998 (63 FR 41625), and October 5, 1998 (63 FR 53290) establish an Allowance Program. The Allowance Program and its history are described in the notice of proposed rulemaking (NPRM) published in the Federal Register on November 10, 1994 (59 FR 56276). The control and the phaseout of production and consumption of ozone-depleting substances as required under the Protocol and CAA are accomplished through the Allowance Program.

In developing the Allowance Program, EPA collected information on the amounts of ozone-depleting substances produced, imported, exported, transformed and destroyed within the United States for specific baseline years for specific chemicals. This information was used to establish the U.S. production and consumption ceilings for these chemicals. The data were also used to assign company-specific production and import rights to companies that were in most cases producing or importing during the specific year of data collection. These production or import rights are called “allowances.” Due to the complete phaseout of many of the ozone-depleting chemicals, the quantities of production allowances and consumption allowances granted to companies for those chemicals were gradually reduced and eventually eliminated. Production allowances and consumption allowances continue to exist for only one specific class I controlled ozone-depleting substance—methyl bromide. All other production or consumption of class I controlled substances is prohibited under the Protocol and the CAA, but for a few narrow exemptions.

In the context of the regulatory program, the use of the term consumption may be misleading. Consumption does not mean the “use” of a controlled substance, but rather is defined as production plus imports minus export of controlled substances (Article 1 of the Protocol and Section 601 of the CAA). Class I controlled substances that were produced or imported through the expenditure of allowances prior to their phaseout date can continue to be used by industry and the public after that specific chemical's phaseout under these regulations, unless otherwise precluded under separate regulations.

The specific names and chemical formulas for the controlled ozone-depleting substances in the Groups of class I controlled substances are in Appendix A and Appendix F in Subpart A of 40 CFR Part 82. The specific names and chemical formulas for the class II controlled ozone-depleting substances are in Appendix B and Appendix F in Subpart A.

Although the regulations phased out the production and consumption of class I, Group II (halons) on January 1, 1994, and all other class I controlled substances (except methyl bromide) on January 1, 1996, a very limited number of exemptions exist, consistent with U.S. obligations under the Protocol. The regulations allow for the manufacture of phased-out class I controlled substances, provided the substances are either transformed, or destroyed. (40 CFR 82.4(b)) They also allow limited manufacture if the substances are (1) exported to countries listed under Article 5 of the Protocol, (2) produced for essential uses as authorized by the Protocol and the regulations, or (3) produced with destruction or transformation credits. (40 CFR 82.4 (b))

The regulations allow import of phased-out class I controlled substances provided the substances are either transformed or destroyed. (40 CFR 82.4(d)) Limited exceptions to the ban on the import of phased-out class I controlled substances also exist if the substances are: (1) Previously used, (2) imported for essential uses as authorized by the Protocol and the regulations, or (3) a transhipment or a heel. (40 CFR 82.4(d))

On August 4, 1998, EPA published a direct final rule and a concurrent notice of proposed rulemaking in the Federal Register (63 FR 41625, 63 FR 41652). EPA received comments on some portions of the rulemakings and therefore published a partial withdrawal of the direct final rule in the Federal Register on October 5, 1998 (63 FR 53290). In Part III of today's action, EPA responds to comments and describes the Agency's final action changing the Allowance Program in Subpart A of 40 CFR Part 82.

1. The definition for individual shipment is contained in this rule.

2. The definition for non-objection notice is contained in this rule.

3. The definition for source facility is contained in this rule.

4. The definition for national security allowances is contained in the Notice of Proposed Rulemaking published in the Federal Register on July 20, 2001 (66 FR 38064).

5. The revision of newly designated 40 CFR 82.4(j), addressing the prohibition on the import of any used class I controlled substance by a person that has not received a non-objection notice, is contained in this rule.

6. The paragraph (t)(3) in newly designated 40 CFR 82.4(t) proposed allocating essential-use allowances for quantities of a specific class I controlled substance by means of a confidential letter for pre-2000 control periods, thus it is no longer applicable and is not contained in any rule.

7. The paragraph (u)(3) in newly designated 40 CFR 82.4(u), addressing national security production allowances for HCFC-141B, is contained in the Notice of Proposed Rulemaking published in the Federal Register on July 20, 2001 (66 FR 38064).

8. The paragraph (a)(5) in revised 40 CFR 82.9(a), addressing the baseline amounts for Article 5 production allowances, is contained in the direct final rule published in the Federal Register on November 28, 2000 (65 FR 70795).

9. The addition of 40 CFR 82.9(g), addressing national security production allowances for HCFC-141B, is contained in the Notice of Proposed Rulemaking published in the Federal Register on July 20, 2001 (66 FR 38064).

10. The addition of 40 CFR 82.12(a)(3), addressing essential-use allowances for metered-dose inhalers (MDIs), is contained in the direct final rule published in the Federal Register on March 13, 2001 (66 FR 14760).

11. The addition of 40 CFR 82.13(f)(2)(xvii), (g)(1)(xvii), and (g)(4)(xv) and the revision of newly designated 40 CFR 82.13(f)(3)(xiii), which relate to proposed recordkeeping and reporting for process agent uses of controlled substances, are not contained in this final rule because of a Decision by the Parties to the Protocol in the intervening time. The Agency will consider whether to take action to address process agent uses of controlled substances in future rulemakings.

12. The revision of 40 CFR 82.13 (g)(2) and (3), addressing the petition process for submitting a request to import a used class I controlled substance, is contained in this rule.

13. The revision of 40 CFR 82.13(u), addressing reporting requirements for essential use allowances, is contained in this rule.

In the direct final rule and concurrent proposal published in the Federal Register on August 4, 1998, EPA set forth changes to the petition process for the import of used controlled substances. EPA's goal was to clarify existing provisions and to strengthen the Agency's ability to ensure that material is, in fact, previously used before it is imported. EPA received twelve comments on amendments to the petition process for importing used controlled substances and therefore withdrew all the amendments related to the petition process before the rule became effective on October 5, 1998.

The petition process for importing used controlled substances is found in various paragraphs (40 CFR 82.3 through 40 CFR 82.13) of the Stratospheric Ozone Protection Program. In responding to comments, this preamble begins with changes in Section 82.3—Definitions, then addresses comments on the changes in Section 82.4—Prohibitions, and finally, addresses comments on changes in Section 82.13—Recordkeeping and reporting requirements.

EPA proposed to add definitions for the phrases “individual shipment”, “non-objection notice”, and “source facility” in order to clarify the meaning of existing requirements pertaining to the petition process for imports of used controlled substances.

EPA received one comment on the definition of “individual shipment.” The comment asks for a clarification of the phrase “not to be dis-aggregated” in the definition. The comment also points out an inconsistency between this phrase and the phrase “not to be aggregated” in the initial paragraph under 40 CFR 82.13(g)(2). With this action, EPA is adding a definition of “individual shipment” to 40 CFR 82.3 that does not employ the phrase “not to be dis-aggregated”, and is removing the phrase “not to be aggregated” from the pre-existing language in 40 CFR 82.13(g)(2). The intent of the definition continues to be the same as explained in the rule published in the Federal Register on August 4, 1998: that an importer shall submit a petition to import a specific quantity of used class I controlled substance as a single U.S. Customs entry. If an importer cannot arrange for the entire quantity to be shipped as one entry through U.S. Customs, the importer is required to submit to EPA a separate petition for the quantity of each individual U.S. Customs entry of a used controlled substance.

EPA received no comments on the definition of “non-objection notice.” EPA is finalizing this definition as proposed.

EPA received one comment on the definition of “source facility.” The commenter states that the phrase “exact location” is too specific, believing that it could refer to the valve or fitting on the piece of equipment from which the used controlled substance is recovered. The commenter points out that the valve or fitting will not have a mailing address. The commenter suggests replacing the phrase “exact location” with the word “site.” EPA believes there may be some merit to the commenter's concern about the specificity of the proposed phrase. EPA's intent was to refer to the postal address of the owner of the equipment from which the ozone-depleting substance was recovered, not the exact location of the specific piece of equipment. However, to maintain the consistency of the wording within the definition, EPA is replacing the phrase “exact location” with the word “location” rather than site.

In response to one commenter's confusion over the meaning of the word “recover”, used in the definition of “source facility”, EPA would like to clarify that to recover a controlled substance means to remove it from its intended use system. EPA does not consider the transfer of a controlled substance from one container to another to be the “recovery” of the controlled substance.

EPA received one comment on the proposed new language for 40 CFR 82.4(j), which includes a prohibition on the import of any used class I controlled substance by a person that has not received a non-objection notice in accordance with 40 CFR 82.13(g). The commenter believes that the phrase “exact quantity, in kilograms” is more precise than can be currently met by common commercial practices because it implies that a tiny fraction of a kilogram would be a violation. EPA believes that the final sentence of 40 CFR 82.4(j) clearly indicates that it is “every kilogram of importation” that would be a violation and that this sentence clarifies the phrase, “exact quantity, in kilograms.” If a person receives a non-objection notice from EPA for a specific quantity, such as 450 kilograms, the wording in the prohibition would make the 451st kilogram a separate violation. If the specific quantity approved was 450 kilograms, the import of 450 kilograms plus a tiny fraction of a kilogram would not result in a violation.

The following discussion responds to adverse comments received on EPA's proposed petition process. Provisions on which the Agency received no adverse comments are being finalized as proposed.

EPA is reducing the de minimis amount for an individual shipment for which a person is required to submit a petition to import used class I controlled substances. Section 81.13(g)(2) of the final rule published in the Federal Register on May 10, 1995, requires a person to submit a petition to import used class I controlled substances “for each individual shipment over 150 pounds.” A de minimis amount of 150 pounds was established in the May 10, 1995 final rule to allow companies to import small samples of material so they could run laboratory analyses and determine if reclamation would be physically possible and economically justifiable before importing a large tank. EPA has since learned that samples of class I controlled substances are generally taken from large ISO-tanks using special cylinders that generally weigh less than 2 pounds. EPA is therefore setting the de minimis quantity at five (5) pounds. EPA believes that a quantity of 150 pounds is much larger than necessary to conduct laboratory analysis for a prospective import. A de minimis level of five pounds allows a company to take three samples from a large ISO-tank so the samples can be sent to a laboratory testing facility in the U.S. without being subject to the petition requirements for used material. In developing today's amendments, EPA also considered requiring that a person who wishes to import any quantity of used class I controlled substance, regardless of the size, be required to submit a petition, thereby eliminating the de minimis level altogether. EPA decided not to eliminate the de minimis level altogether in order to minimize burden on the regulated community and conserve Agency resources.

EPA received seven (7) comments regarding the proposed extension of time for the Agency's review of petitions from 15 working days to 40 working days. Five of these comments support the extension of time for the review of petitions, recognizing the importance of independent verification of the submitted information. The five supportive comments also indicate that companies could easily anticipate the longer review period and manage their business practices accordingly. Two commenters suggest that the 40 working day review period would be too long because of possible shifts in market demand during this time and the need to buy the material overseas in a shorter period. EPA believes that a 40-day review period is necessary because of the need to confirm foreign governments' restrictions and requirements for exports of used controlled substances, as well as to independently verify the source facility information provided in the petition. In addition, EPA wishes to point out that many shipments of used class I controlled substances over the past 5 years were made at least 6 months after the Agency issued a non-objection notice. Thus, today's action extends the time for EPA's review of a petition to 40 working days in order to balance the goals of responsiveness to legitimate requests to import used class I controlled substances and thoroughness in identifying abuses of the petition process.

An additional two (2) comments object to the removal of the provision for automatic approval of petitions if the Agency does not issue a notice within the 40 working-day review period. The commenters state that the petition process already impedes the normal time of a commercial import transaction. The automatic approval provisions were originally included in the process to ensure that the Agency's review did not unduly delay commercial transactions. However, EPA again notes that many shipments of used class I controlled substances over the last five years were made more than 6 months after the date EPA issued a non-objection notice. EPA believes that because today's action would make the automatic approval process inconsistent with the prohibition in 40 CFR 82.4(j) that requires an importer of used class I controlled substance to receive a non-objection notice, as well as being inconsistent with the requirement that the non-objection notice accompany the shipment through U.S. Customs, the automatic approval provision should be removed from the petition process. In eliminating the automatic approval provision EPA is committing to continued expeditious review and processing of petitions to avoid delays in commercial transactions. We believe that today's changes to the petition process will better ensure that the material entering the United States is, in fact, previously used class I controlled substance so the U.S. meets its obligations under the Montreal Protocol and prevents illegal imports under the Clean Air Act.

EPA listed fourteen (14) information requirements that were numbered (i) through (xiv) in the August 4, 1998, direct final rule and concurrent proposal. No adverse comments were received by EPA on information requirements 40 CFR 82.13(g)(2)(i) through (iii), (vii), (ix) through (xi), (xiii), and (xiv), accordingly, EPA is finalizing these requirements as proposed.

Comments on the proposed information requirement in 40 CFR 82.13(g)(2)(iv) point out that the phrase “dated documents” is ambiguous. The proposed information requirement in (iv) was, “A detailed description of the previous use of the controlled substance at each source facility and dated documents indicating the date the material was put into the equipment at each source facility (material must have remained in the equipment at least 24 months prior to recovery to be considered previously used)”. The commenters suggest that the phrase “dated documents” needs clarification as to whether the Agency is seeking documents dated at the time the ODS was put into the equipment or documents dated at the time a person submits a petition certifying, to the best of their knowledge, when the ODS was put into the equipment. In addition, several commenters express concern that finding documents that are dated from the time the ODS was put into the equipment may be virtually impossible because enterprises only keep documents for a limited number of years and the equipment could have been filled with the ozone-depleting substance many years ago. Finally, several commenters point out a number of practical objections to the requirement that the ODS must have remained in the equipment for at least 24 months. Two commenters suggest that instead of requiring documents regarding the date when the controlled substance was put into equipment EPA could request such documents be submitted, when possible, but at a minimum require the petitioner to certify a “best estimate” of the length of time that the ODS was in the equipment. EPA believes that these are useful suggestions. In addition, EPA believes that the practical realities cited by commenters regarding a minimum residence time for the ODS in equipment makes such a requirement unworkable. Thus, instead of retaining the language from the proposal, EPA is adopting the following language in today's final action: “A detailed description of the previous use of the controlled substance at each source facility and a best estimate of when the specific controlled substance was put into the equipment at each source facility, and, when possible, documents indicating the date the material was put into the equipment.” EPA believes that it has discretion under the existing rules to allow an import to proceed if a petition contains the best available information.

EPA received one comment on the proposed information requirement in 40 CFR 82.13(g)(2)(v), which requires the person submitting a petition for the import of used ODS to include, “A list of the name, make and model number of the equipment from which the material was recovered at each source facility.” The commenter states that obtaining such information may not always be possible. The commenter emphasizes that the chain of custody for used refrigerant may involve multiple transfers of ownership. EPA believes that the submission of this information is vital to the Agency's ability to verify that the controlled substance was, in fact, previously used and is not simply a quantity of falsely labeled controlled substance that was newly produced. EPA uses information about the specific equipment to verify that the quantity a petitioner wants to import could have been recovered from that equipment during the normal course of its operation. In general, the Agency has access to technical specifications for most equipment, including their typical ODS “charge” or amount of ODS they can hold. Over the years, the Agency has received many petitions to import tens of metric tonnes of an ODS claimed to have been recovered from specific equipment when the equipment's specifications indicated that the amount specified in the petition would not typically have been held in, or recovered from, the specific equipment (even in leaky, malfunctioning situations) over a 10 year period. Based on these kinds of analyses, and contact with the source facility, EPA can more readily determine whether controlled substances were previously used. The Agency also wants to note that most petitions received to date have included this information. Finally, EPA believes that the petitioner must take some responsibility for ensuring that the ODS was previously used before submitting a petition, and to do this the petitioner should follow the chain of custody of the material back to the source facility and equipment from which it was recovered. This diligence in tracing ODS back to the source facility would allow a petitioner to include the specific information about the equipment from which it was recovered. Because U.S. obligations under the Protocol limit imports to zero after the phaseout, the Agency's ability to independently verify that a quantity of ODS was, in fact, recovered at a source facility from specific equipment is the most critical step in ensuring the U.S. compliance under the international treaty. Therefore, EPA is promulgating this requirement as proposed.

Several commenters supported the information requirement in 40 CFR 82.13(g)(2)(vi), which requires the, “[n]ame, address, contact person, phone number and fax number of the exporter and of all persons to whom the material was transferred or sold after it was recovered from the source facility.” However, they suggested that EPA retain discretion to approve a petition if some of the information regarding ownership in the chain of custody is not available. EPA believes that it has discretion under the existing rules to allow an import to proceed if a petition contains the best available information. Similarly, under the new rules, EPA “may” object to a petition if the petition lacks any of the information required under 40 CFR 82.13(g)(2); however, it is not obligated to do so. EPA is modifying the proposed language for 40 CFR 82.13(g)(3)(iv) to clarify that it is retaining the discretion not to object to a petition.

EPA received three comments on the proposed information requirement in 40 CFR 82.13(g)(2)(viii), which required the importer to submit “* * * a copy of the contract for the purchase of the controlled substance that includes the name, address, contact person, phone number and fax number of the purchaser.” The commenters request that EPA clarify this information requirement. EPA intended that the petitioner provide a copy of the contract for the purchase of the controlled substance by the ultimate user in the United States. The commenters argue that in many cases the petitioner does not know the ultimate purchaser of the material at the time the petition is being submitted. EPA believes that in some instances the importer of a used controlled substance will already know the purchaser, but this will not always be the case. Therefore, EPA is revising the proposed language so that the final requirement reads: “A description of the intended use of the used controlled substance, and when possible, the name, address, contact person, phone number and fax number of the ultimate purchaser in the United States.”

EPA received several comments on the proposed information requirement in 40 CFR 82.13(g)(2)(xii), which requires that the importer submit “An export license from the appropriate government agency in the country of export and, if recovered in another country, the export license from the appropriate government agency in that country.” One of the comments was supportive of the requirement. The other comments suggested that there might not be such a government authority and that the licensing requirements are “not yet determined at this time.” EPA believes that with the adoption in 1997 of Article 4B to the Montreal Protocol, which requires all Parties to establish a licensing system for imports and exports, and in light of Decision IX/8, also adopted in 1997, which requires each Party to identify a contact person for inquiries about imports and exports, each petitioner should be able to meet the reporting requirement. See Handbook for the International Treaties for the Protection of the Ozone Layer, available at http://www.unep.ch/ozone/Handbook2000.shtml . Accordingly, EPA is adopting this requirement as proposed.

EPA is removing the requirement in 40 CFR 82.13(g)(2) (viii) of the current rule from the list of information to be included with a petition to import used class I controlled substances. EPA received no adverse comments on the removal of this requirement. The provision required an importer to certify that the purchaser of the used, recycled or reclaimed substance “is liable for the payment of the tax.” See 60 FR 24970 (May 10, 1995). EPA published a stay of this provision on January 31, 1996 (61 FR 3316), and published an extension of the stay on June 11, 1996 (61 FR 29485). EPA believes it is more appropriate to defer interpretation of regulatory requirements regarding excise taxes for ozone-depleting chemicals to the Internal Revenue Service (IRS), the Federal agency given authority for these taxes under the Omnibus Budget Reconciliation Act of 1989, the Omnibus Budget Reconciliation Act of 1990 and the Energy Policy Act of 1992. EPA understands from the IRS that there is an excise tax on bulk shipments of class I controlled substances, used class I controlled substances, products containing class I controlled substances and products made with but not containing class I controlled substances. However, EPA requests that all questions regarding the excise taxes on ozone-depleting chemicals be directed to the Internal Revenue Service.

EPA proposed nine (9) reasons for issuing an objection notice in response to a petition to import used class I controlled substances. These proposed reasons were labeled (A) through (I) of 40 CFR 82.13(g)(3) in the direct final rule and concurrent proposal. EPA received no adverse comments on reasons (A), (C) and (D); accordingly, these reasons are being adopted as proposed.

In the proposed rule, reason (B) for issuing an objection notice read as follows: “If the Administrator determines that any portion of the petition contains false or misleading information or has reason to believe that the petition contains false or misleading information.” The adverse comment on reason (B) for issuing an objection notice states that reason (B) would allow EPA to issue an objection notice if EPA “has reason to believe” that a petition contains false or misleading information and this action would be “based on unsubstantiated allegations or unfounded belief.” Since the petition process is designed to enable EPA to independently verify whether the class I controlled substance was previously used, EPA's decision hinges on whether the material was recovered from the intended use system ( i.e. , equipment such as a refrigeration chiller or a fire suppression system). The intent of the petition process is to protect against the illegal entry of virgin ( i.e. , un-used) class I controlled substances, which would be contrary to the United States' obligations under the Montreal Protocol and the requirements of the Clean Air Act, while at the same time not unduly impeding commerce. Accordingly, EPA is creating a process based on documentation and cross-checking of information that focuses on whether the ODS was removed from equipment. Logistically EPA cannot actually witness the removal of the ODS from the equipment. Therefore, EPA must be able to rely on written and verbal statements made by both U.S. and foreign persons or entities or agencies to independently verify whether the ODS was previously used. Under these circumstances, EPA believes that it is reasonable to issue an objection notice if the Agency has information regarding the willingness of a company or individual listed in the petition to create and/or provide false or misleading information. However, EPA agrees that the phrase, “has reason to believe”, may be too vague. Thus, in today's action, EPA is modifying reason (B) for issuing an objection notice to read: “if the Administrator determines that any portion of the petition contains false or misleading information, or the Administrator has information from other U.S. or foreign government agencies indicating that the petition contains false or misleading information.”

Under reason (E) in the proposed rule, EPA could issue an objection notice “If allowing the import of the used class I controlled substance would run counter to the spirit of statements made by government officials in the country of recovery or export regarding controlled ozone-depleting substances.” The adverse comment on reason (E) for disallowing a petition points to the lack of specificity in the phrase, “counter to the spirit of statements made by government officials in the country of recovery or export regarding controlled ozone-depleting substances.” EPA agrees that this language is too broad and, therefore, with today's action clarifies and adds specificity through the use of the phrase, “counter to government restrictions from either the country of recovery or export regarding controlled ozone-depleting substances.”

EPA received several similar comments on reasons (F) and (G) for disallowing petitions to import used class I controlled substances. In the proposed rule, reason (F) was: “If the Administrator has received information indicating that a person listed in the petition has at any time been willing to produce false information regarding trade in controlled substances, including information required by EPA or required by the appropriate government agency in the exporting country.” Reason (G) was: “If the Administrator has received information indicating that a person listed in the petition is in violation of a requirement in any regulation published by the U.S. Environmental Protection Agency.” The comments object to the likely use of “hearsay” and information “incorrectly or maliciously” provided to EPA during its petition review. EPA agrees that the potential for abuse of these reasons by competitors or disgruntled employees is too great. Thus, reasons (F) and (G) are not being included in today's action.

EPA received many comments on reason (H) which, as proposed, said that EPA may issue an objection notice, “[i]f the Administrator determines that, for the current control period, the U.S. demand for the controlled substance cited in the petition can be satisfied by domestic stockpiles and estimated recycling and reclamation of quantities contained in domestic equipment.” One company that provides waste management services commented that any ban on imports of a used class I substance should not apply to imports for disposal. Additionally, commenters say there might be reasons for importing quantities of a controlled substance beyond immediate demand that wouldn't be evident to the Agency. The commenters also state that EPA lacks the expertise to determine market supply and demand for ozone-depleting substances. Considering the impact coupled with the administrative burden associated with the market analysis that would be required, in today's action EPA is not going final with reason (H) as a reason for EPA to issue an objection notice.

As proposed, reason (I) stated that EPA could issue an objection notice, “[i]f reclamation capacity is installed or is being installed for that specific controlled substance in the country of recovery or country of export and the capacity is funded in full or in part through the Multilateral Fund.” The two adverse comments regarding reason (I) claim that a country with a reclamation facility paid for by the Multilateral Fund of the Montreal Protocol may not have a need for the substance and thus may not have an incentive to reclaim and reuse it domestically. However, if the Executive Committee of the Montreal Protocol's Multilateral Fund decided to allocate money to a country for the construction of a reclamation facility, the Executive Committee would consider the demand for the substance within that country and region before approving the disbursement of funds. Therefore, EPA believes no used controlled class I substances should be imported from countries where reclamation capacity, for that specific controlled substance, has been or is being installed through the assistance of the Multilateral Fund. The United States contributes approximately one fourth of all funds going to the Multilateral Fund, the general purpose of which is to assist countries operating under Article 5(1) of the Protocol to make the transition away from ozone-depleting substances; and a transition policy includes the development of reclamation facilities in order to optimize the use of existing ozone-depleting substances so as to avoid unnecessary production of virgin materials. Thus, EPA views the importation of used class I controlled substances from countries where reclamation capacity has been supported by the Multilateral Fund to run counter to the aims of a global phaseout strategy. Accordingly, EPA is adopting reason (I) as proposed. In today's action, it appears as reason (F) for issuing an objection notice.

EPA is adding a requirement that the petition, and the non-objection notice from EPA that approves the import of a used class I controlled substance, accompany each shipment through U.S. Customs. The Agency did not receive any comments on this proposed requirement. In the preamble to the final rule published in the Federal Register on May 10, 1995, EPA suggested that the petition and EPA approval letter accompany the shipment of used class I controlled substances through U.S. Customs. However, EPA did not make this a requirement. Today EPA is adding this requirement to 40 CFR 82.13(g) such that all importers of used class I controlled substances must provide these documents to bring a shipment into the United States. The experience of the past 5 years has shown that presenting the petition and the EPA-approval letter with a shipment facilitates the shipment's clearance through U.S. Customs.

The direct final rule and concurrent proposal published in the Federal Register on August 4, 1998 (63 FR 41625, 63 FR 41652 contained aprovision allowing transfers of essential-use authorizations for metered-dose inhalers (MDIs) in emergency situations. EPA received adverse comment on this provision and withdrew it from the direct final rule on October 5, 1998 (63 FR 53290). The commenters believed that the scope of the transfer provision was too narrow. EPA subsequently revisited the issue of transfers following the Parties' agreement to Decision XII/2 in December 2000, which allows transfers of essential use authorizations and CFCs produced with such authorizations more broadly. EPA has now finalized a broader transfer provision and a system to monitor and track the various types of MDI essential-use transfers. For more information see the final rule published in the Federal Register on February 11, 2002 (67 FR 6352).

The direct final rule and concurrent proposal contained requirements to maintain and submit a certification that a quantity of class I controlled substance would be used as a process agent. We received adverse comment on these proposed recordkeeping and reporting requirements and withdrew them from the direct final rule on October 5, 1998. In the time between the proposed rule and today's action, the Parties to the Protocol agreed to Decision X/14 on process agent uses of controlled substances. Decision X/14 stated process agent uses of controlled substances should be treated as feedstock uses until the end of 2001. The Parties to the Protocol are conducting ongoing discussions in order to determine how process agent uses of controlled substances should be accounted for beyond 2001. Because of this new Decision by the Parties to the Protocol, EPA is not taking action on the requirements proposed prior to the Decision. The Agency will consider whether to take action to address process agent uses of controlled substances in future rulemaking.

The direct final rule and concurrent proposal contained changes to the recordkeeping and reporting requirements for entities allocated essential-use allowances. EPA received adverse comment on these proposed requirements and withdrew them from the direct final rule on October 5, 1998. After considering comments, EPA is finalizing a revised version of these requirements in today's action.

EPA is changing the recordkeeping and reporting requirements for entities allocated essential-use allowances for two reasons. First, EPA wishes to meet its Montreal Protocol obligations under Decision VIII/9 to complete the yearly “Reporting Accounting Framework for Essential Uses other than Laboratory and Analytical Applications” (Accounting Framework). Second, the reporting requirements provide EPA and the Food and Drug Administration with information on the amount of MDIs containing CFCs manufactured annually. This information is important for making decisions regarding the amount of CFCs that should be nominated to the Parties to the Montreal Protocol for essential use authorizations in subsequent years.

The Accounting Framework, included in annex IV of the document entitled “Report of the Eighth Meeting of the Parties to the Montreal Protocol on Substances That Deplete the Ozone Layer” (UNEP/OzL.Pro.8/12), is designed to assist the Parties in, among other things, monitoring the amount of controlled substances acquired through exempt essential-use production or import. Since 1996, EPA has requested each company receiving essential use allowances to complete the Accounting Framework under the authority of section 114 of the CAA. Today's final rule requires entities allocated essential use allowances to submit the information necessary for EPA to complete the U.S. aggregate Accounting Framework by January 30th of each year.

The following chart identifies the information that EPA requires from essential use allowances holders in order to complete the accounting framework, and where EPA will obtain this information after publication of this final rule.

For I, “The Amount of ODS Used for Essential Use” the quantity to be reported includes CFCs that are included in marketable ( i.e. , not defective) CFC MDIs, CFCs used to clean the lines of the manufacturing equipment, and CFCs that are lost as fugitive emissions during manufacture. This amount does not include CFCs that are in non-marketable CFC MDIs that are subsequently destroyed or recycled.

For K, “Quantity of ODS Destroyed or Recycled” the quantity to be reported includes CFCs from non-marketable CFC MDIs that are subsequently recycled or destroyed. It also includes any CFCs that are recaptured from the manufacturing process that are recycled or destroyed.

With this final rule, companies are required to supply EPA with the minimum amount of information necessary to complete the accounting framework. In the above chart, rows C and D encompass previously existing requirements and rows I, J, and K represent added requirements. The data today's regulation specifically requires essential use allowance holders to report appears in rows C, D, I , J, and K. However, EPA highly recommends that essential use allowances holders complete the accounting framework in its entirety to assure that the completed framework is an accurate depiction of the amount of CFCs each company has on hand at the end of the year.

EPA has simplified some of the proposed reporting requirements, in part due to public comment. First, EPA has reordered the reporting requirements under 40 CFR 82.13(u)(2) in order to more closely follow the list of information necessary to complete the Essential Use Accounting Framework. Second, EPA has reworded the language of the reporting requirements to clarify which requirements apply to all holders of essential use allowances and which apply only to companies that hold allowances to produce CFC MDIs. Third, EPA has omitted 40 CFR 82.13(u)(4), which requested the quantity of each controlled substance that was emitted during the essential use, and 40 CFR 82.13(u)(5), which requested, for MDIs, the quantity that was incorporated into marketable MDIs. These paragraphs were redundant. The quantity emitted and the quantity incorporated into marketable MDIs should be reported as part of the quantity “used for essential use” reported in 40 CFR 82.12(u)(2)(i).

EPA proposed that essential use allowance holders be required to submit reports on a quarterly basis. In response to the proposal, EPA received comments suggesting that the reporting should be on an annual basis, rather than on a quarterly basis. One commenter suggested that EPA allow annual reporting of information required by today's action while retaining quarterly reporting of the information currently required. EPA is adopting the commenter's suggestion. The existing requirements call for essential-use holders to report quarterly the quantity of each controlled substance received from each importer or producer, and are incorporated into 40 CFR 82.13(u)(1) without change. The new requirements are listed in 40 CFR 82.13(u)(2) and call for annual reporting.

EPA's practice has been to request companies to report quantities that are recycled together with quantities that are destroyed through letters requesting information under section 114 of the CAA. Today's rule slightly modifies the proposed language for 40 CFR 82.13(u)(3), which has been renumbered as (u)(2)(iii), to reflect this practice. Thus, the new (u)(2)(iii) requires reporting on the quantities of CFCs destroyed and the quantities of CFCs recycled.

EPA is clarifying the need for annual information to be submitted within 20 days after the end of the year, when possible, because this information needs to be incorporated into the U.S. nomination to the Parties to the Protocol for future-year essential-use exemptions. Although the regulation will require submission of the reports within 30 days after the end of the year, EPA is requesting the information be submitted within 20 days after the end of the year, when possible, in order to assist the Agency in meeting the January 31st deadline for submission of the U.S. essential-use nomination as required by the Parties to the Protocol in Decision VIII/9, paragraph 8.

One commenter objected to EPA's proposed reporting requirement that holders of essential use allowances for production of MDIs report “the total number of units of each specific product manufactured in the control period (including marketable and defective units)” (40 CFR 82.13(u)(9)), renumbered 40 CFR 82.13(u)(2)(vi)). The commenter stated that there was insufficient reason given in the proposal for requesting submission of this information. With today's action, EPA is adopting a slightly modified version of this reporting requirement by simply asking for “the total number of marketable units of each specific metered-dose inhaler product manufactured in the control period.” EPA believes this information is necessary for several reasons. The first is to validate the quantity of CFCs each company is requesting for future control periods, and to assist the Food and Drug Administration (FDA) in determining what is medically necessary for specific allocations of essential-use allowances for each company. See CAA section 604(d)(2). The second reason is to assist EPA and FDA in developing the U.S. nomination of essential use allowances for CFCs to the Parties to the Protocol. As the U.S. transition to non-CFC MDIs progresses (and as more non-CFC MDIs are approved by FDA) the U.S. will eventually begin a process of removing particular CFC-based MDIs from the market. While this U.S. transition to non-CFC MDIs happens, it will be important for EPA and FDA to have historical data on the numbers of units of specific marketed MDI products to accurately adjust the allocation of essential-use allowances and to develop future-year U.S. nominations for consideration by the Parties to the Protocol.

Since the publication of the direct final rule, the concurrent proposal and the withdrawal notice, the mailing address for EPA and the name of the Division have changed. Therefore, today's action corrects the address for submission of reports and petitions under the definition of the “Administrator,” to EPA (6205J), Global Programs Division, 1200 Pennsylvania Ave., NW., Washington, DC, 20460.

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 to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA 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, enabling 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.

EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more by State, local and tribal governments, in the aggregate, or by the private sector, in any one year. Viewed as a whole, all of today's amendments do not create a Federal mandate resulting in costs of $100 million or more in any one year for State, local and tribal governments, in the aggregate, or for the private sector. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has also determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments; therefore, EPA is not required to develop a plan with regard to small governments under section 203. Finally, because this proposal does not contain a significant intergovernmental mandate, the Agency is not required to develop a process to obtain input from elected State, local, and tribal officials under section 204.

EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule. EPA has also determined that this rule will not have a significant economic impact on a substantial number of small entities.

For purposes of assessing the impact of today's rule on small entities, small entities are defined as: (1) A small business that is identified by the North American Industry Classification System code (NAICS) in the Table below.

After considering the economic impacts of today's final rule on small entities, EPA concludes that this action will not have a significant economic impact on a substantial number of small entities. This rule changes the recordkeeping and reporting requirements for Essential Use Allowance holders and clarifies the petition process for import of used class I controlled substances. The Essential Use Allowances holders are large corporations. The clarifications to the petition process affects importers of which there could be some small entities. EPA receives approximately 140 petitions a year. On average, a single entity submits three to five (3-5) petitions per year. Further, the average petition preparation time is 2-3 hours. EPA estimates the additional information required in the revised petition process finalized with this rule involves approximately thirty (30) more minutes of preparation time. Additionally, the information can be generally be found in the same location and from the same sources as the information required for the current petition process. Assuming 75 dollars is equivalent to one (1) hour worth of work for a small entity, the revised petition process would cost an average of 113-187 additional dollars each year per entity.

Although this final rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of the rule on all entities by rejecting a regulatory alternative that had been under consideration, which would have eliminated the de minimis exception to the petition process.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether this regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines a “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.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62FR19885, April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it implements specific standards established by Congress in Title VI of the Clean Air Act.

The Office of Management and Budget (OMB) has approved the information collection requirements contained in this rule under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , and has assigned OMB control number 2060-0170.

The information collection under this rule is authorized under sections 603(b) and 114 of the Clean Air Act (CAA). This information collection is conducted to meet U.S. obligations under Article 7, Reporting Requirements, of the Montreal Protocol on Substances that Deplete the Ozone Layer (Protocol); and to carry out the requirements of Title VI of the CAA, including sections 603 and 614.

The reporting requirements included in the amendments to the current rule are designed to:

(1) Ensure compliance with the restrictions on production, import and export of controlled ozone-depleting substances after the January 1, 1996 phaseout of class I substances (except methyl bromide);

(2) Allow exempted production and import for certain essential uses and the consequent tracking of that production and import;

(3) Address industry and Federal concerns regarding the illegal import of controlled substances mislabelled as “used” that are undercutting U.S. markets;

(4) Respond to industry comments on the functioning of the program to streamline reporting and eliminate administrative inefficiencies;

(5) Satisfy U.S. obligations under the international treaty, the Montreal Protocol on Substances that Deplete the Ozone Layer (Protocol), to report data under Article 7;

(6) Fulfill statutory obligations under Section 603(b) of Title VI of the Clean Air Act Amendments of 1990 (CAA) for reporting and monitoring;

(7) Provide information to report to Congress on the production, use and consumption of class I and class II controlled substances as statutorily required in Section 603(d) of Title VI of the CAA.

EPA informs respondents that they may assert claims of business confidentiality for any of the information they submit. Information claimed confidential will be treated in accordance with the procedures for handling information claimed as confidential under 40 CFR Part 2, Subpart B, and will be disclosed only if EPA determines that the information is not entitled to confidential treatment. If no claim of confidentiality is asserted when the information is received by EPA, it may be made available to the public without further notice to the respondents (40 CFR 2.203).

The information collection requirements for this action have an estimated reporting burden averaging 23.3 hours per response. This estimate includes time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed and completing the collection of information.

The estimate includes the time needed to comply with EPA's reporting requirements, as well as that used for the completion of the reports under the amended regulations.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

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.

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. The accelerated phaseout regulations are administered and enforced solely by the Federal government, and are not currently delegated to State or local governments. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

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 final 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. This rule extends an exemption used by large, multinational corporations that either produce, import or export class I, group VI ozone-depleting substances. It has no effect on tribal governments. Thus, Executive Order 13175 does not apply to this rule.

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

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)) because it is not a significant regulatory action under Executive Order 12866.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective January 30, 2003.

Under section 307(b)(1) of the Clean Air Act, EPA hereby finds that these regulations are of national applicability. Accordingly, judicial review of this action is available only by the filing of a petition for review of this action in the United States Circuit Court of Appeals for the District of Columbia Circuit within 60 days of publication. Under section 307(b)(2) of the Act, the requirements that are the subject of today's rule may not be challenged later in judicial proceedings brought to enforce these requirements.

The information in this section is organized as follows:

After evaluating the petition, EPA proposed, on July 12, 2002 to exclude the Tokusen waste from the lists of hazardous waste under §§ 261.31 and 261.32 ( see 65 FR 75897). The EPA is finalizing:

(1) The decision to grant Tokusen's petition to have its wastewater treatment sludge excluded, or delisted, from the definition of a hazardous waste, subject to certain continued verification and monitoring conditions; and

(2) the decision to use the Delisting Risk Assessment Software to evaluate the potential impact of the petitioned waste on human health and the environment. The Agency used this model to predict the concentration of hazardous constituents released from the petitioned waste, once it is disposed.

Tokusen's petition requests a delisting for an F006 listed hazardous waste. Tokusen does not believe the petitioned waste meets the criteria for which EPA listed it as a hazardous waste. Tokusen also believes no additional constituents or factors could cause the waste to be hazardous. EPA's review of this petition included consideration of the original listing criteria and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4) (hereinafter all sectional references are to 40 CFR unless otherwise indicated). In making the final delisting determination, EPA also evaluated the petitioned waste against the listing criteria and factors cited in §§ 261.11(a)(2) and (a)(3). Based on this review, the EPA agrees with the petitioner that the waste is nonhazardous with respect to the original listing criteria. If the EPA had found, based on this review, that the waste remained hazardous based on the factors for which the waste was originally listed, EPA would have proposed to deny the petition. The EPA evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. The EPA considered whether the waste is: (1) Acutely toxic; (2) the concentration of the constituents in the waste; (3) their tendency to migrate and to bioaccumulate; (4) their persistence in the environment once released from the waste; (5) plausible and specific types of management of the petitioned waste; (6) the quantities of waste generated; and (7) waste variability. The EPA believes the petitioned waste does not meet these criteria or the listing criteria. EPA's final decision to delist waste from Tokusen's facility is based on the information submitted by Tokusen in its petition, including descriptions of the dewatered WWTP sludge and analytical data from the Conway, Arkansas facility.

This exclusion applies to the waste described in the petition only if the requirements described in Table 1 of 40 CFR part 261 and the conditions contained herein are satisfied.

Tokusen currently sends the petitioned waste (dewatered WWTP sludge) to Envirite Corporation, a hazardous landfill in Harvey, Illinois. If the delisting exclusion is finalized, Tokusen will dispose of the sludge in a permitted solid waste landfill. At this time, Tokusen is planning to dispose of the delisted sludge at Waste Management Industrial Landfill in Little Rock, Arkansas.

This rule is effective December 31, 2002. The Hazardous and Solid Waste Amendments of 1984 amended section 3010 of RCRA, 42 USCA 6930(b)(1), allow rules to become effective in less than six months after the rule is published when the regulated community does not need the six-month period to come into compliance. That is the case here because this rule reduces, rather than increases, the existing requirements for persons generating hazardous waste. This reduction in existing requirements also provides a basis for making this rule effective immediately, upon publication, under the Administrative Procedure Act, pursuant to 5 USCA 553(d).

Because EPA is issuing this exclusion under the Federal RCRA delisting program, only States subject to Federal RCRA delisting provisions would be affected. This would exclude two categories of States: States having a dual system that includes Federal RCRA requirements and their own requirements, and States who have received EPA authorization to make their own delisting decisions.

We allow states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA, 42 USCA 6929. These more stringent requirements may include a provision that prohibits a federally issued exclusion from taking effect in the State. Because a dual system (that is, both Federal (RCRA) and State (non-RCRA) programs) may regulate a petitioner's waste, we urge petitioners to contact the State regulatory authority to establish the status of their waste under the State law. Delisting petitions approved by the EPA Administrator under 40 CFR 260.22 are effective in the State of Arkansas only after the final rule has been published in the Federal Register and the rule has been adopted and approved by the Arkansas Pollution Control and Ecology Commission in Regulation No. 23.

EPA has also authorized some States (for example, Louisiana, Georgia, Illinois) to administer a RCRA delisting program in place of the Federal program, that is, to make State delisting decisions. Therefore, this exclusion does not apply in those authorized States. If Tokusen transports the petitioned waste to or manages the waste in any State with delisting authorization, Tokusen must obtain delisting authorization from that State before they can manage the waste as nonhazardous in the State.

A delisting petition is a request from a generator to EPA or another agency with jurisdiction to exclude, or delist, from the RCRA list of hazardous waste, waste the generator believes should not be considered hazardous under RCRA.

Under 40 CFR §§ 260.20 and 260.22, facilities may petition the EPA to remove their wastes from hazardous waste regulation by excluding them from the lists of hazardous wastes contained in §§ 261.31 and 261.32. Specifically, § 260.20 allows any person to petition the Administrator to modify or revoke any provision of parts 260 through 265 and 268 of Title 40 of the Code of Federal Regulations. Section 260.22 provides generators the opportunity to petition the Administrator to exclude a waste from a particular generating facility from the hazardous waste lists.

Petitioners must provide sufficient information to the EPA to allow the EPA to determine that the waste to be excluded does not meet any of the criteria under which the waste was listed as a hazardous waste. In addition, the Administrator must determine, where he/she has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste.

On October 24, 2001, Tokusen petitioned the EPA to exclude from the lists of hazardous waste contained in §§ 261.31 and 261.32, a waste by-product (stabilized sludge from the wastewater treatment plant in Conway, Arkansas) which falls under the classification of listed waste because of the “derived-from” rule in RCRA, 40 CFR 261.3. Specifically, in its petition, Tokusen, located in Conway, Arkansas, requested that EPA grant an exclusion for 670 cubic yards annually of dewatered WWTP sludge generated from electroplating operations. The resulting waste is listed, in accordance with § 261.3(c)(2)(i) ( i.e. , the “derived-from” rule). The waste code of the constituents of concern is EPA Hazardous Waste No. F006. The constituents of concern for F006 are cadmium, hexavalent chromium, nickel, and cyanide (complexed).

Specifically, in its petition, Tokusen requested that EPA grant a conditional exclusion for 670 cubic yards annually of dewatered WWTP sludge.

To support its petition, Tokusen submitted:

(1) Historical information on past waste generation and management practices;

(2) Results of the total constituent list for 40 CFR part 264, appendix IX volatiles, semivolatiles, metals, pesticides, herbicides, and PCBs;

(3) Results of the constituent list for appendix IX on Toxicity Characteristic Leaching Procedure (TCLP) extract for volatiles, semivolatiles, and metals;

(4) Analytical constituents of concern for F006;

(5) Results from total oil and grease analyses;

(6) Multiple pH testing for the petitioned waste.

The EPA received public comments on August 6, 2002, from a business student with Florida International University.

The student raised concerns that EPA had reached a quick decision to remove the waste from the hazardous list based on data submitted by the company. Also, the student felt more concrete evidence was needed to delist the waste. She stated that no evidence was given as to any test that proves or disproves hazardous content.

Response: F006 is a listed hazardous waste but the regulations in § 260.22 give individual facilities like Tokusen the ability to petition for “delisting.” The procedures outlined in §§ 260.20 and 260.22 provide EPA with the framework to consider these decisions. EPA believes that Tokusen has provided all the data requested in §§ 260.20 and 260.22 and meets the requirement for excluding the waste at this particular facility.

Tokusen provided analytical data for 5 representative samples of the sludge it has petitioned for delisting. This data has undergone review for quality control and quality assurance and EPA believes that the hazardous constituents detected through the Toxicity Characteristics Leaching Procedures (TCLP) as well as the Total analyses indicated the waste constituent concentrations do not pose a threat to human health and environment based on the risk assessment determined using the Delisting Risk Assessment Software (DRAS). We believed the potential effects determined from the DRAS model that if this waste were released into the environment, it is within the acceptable [protectiveness] risk range of 10 −5 to 10 −6 . Also EPA has required the company to submit samples quarterly for the first year and samples annually each subsequent year while the company is in business to demonstrate that the waste does not exceed the constituent levels listed in Table 1.

Under Executive Order 12866, EPA must conduct an “assessment of the potential costs and benefits” for all “significant” regulatory actions. The final rule to grant an exclusion is not significant, since its effect, if promulgated, would be to reduce the overall costs and economic impact of EPA's hazardous waste management regulations. This reduction would be achieved by excluding waste generated at a specific facility from EPA's lists of hazardous waste, thereby enabling this facility to manage its waste as nonhazardous. There is no additional impact therefore, due to this final rule. Therefore, this proposal would not be a significant regulation and no cost/benefit assessment is required. The Office of Management and Budget (OMB) has also exempted this rule from the requirement for OMB review under section (6) of Executive Order 12866.

Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an agency is required to publish a general notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis which describes the impact of the rule on small entities ( i.e. , small businesses, small organizations, and small governmental jurisdictions). No regulatory flexibility analysis is required, however, if the Administrator or delegated representative certifies the rule will not have any impact on small entities.

This rule if promulgated, will not have an adverse economic impact on small entities since its effect would be to reduce the overall costs of EPA's hazardous waste regulations. Accordingly, I hereby certify that this regulation, if promulgated, will not have a significant economic impact on a substantial number of small entities. This regulation therefore, does not require a regulatory flexibility analysis.

Information collection and recordkeeping requirements associated with this final rule have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1980 (Public Law 96-511, 44 U.S.C. 3501 et seq. ) and have been assigned OMB Control Number 2050-0053.

Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, which was signed into law on March 22, 1995, EPA must prepare a written statement for rules with Federal mandates that may result in estimated costs to State, local, and tribal governments in the aggregate, or to the private sector of $100 million or more in any one year. When such a statement is required for EPA rules, under section 205 of the UMRA, EPA must identify and consider alternatives, including the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. EPA must select that alternative, unless the Administrator explains in the final rule why it was not selected, or it is inconsistent with law. Before EPA establishes regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must develop under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, giving them meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising them on compliance with the regulatory requirements. The UMRA generally defines a Federal mandate for regulatory purposes as one that imposes an enforceable duty upon State, local, or tribal governments or the private sector. The EPA finds that this final delisting decision is deregulatory in nature and does not impose any enforceable duty upon State, local, or tribal governments or the private sector. In addition, the final delisting does not establish any regulatory requirements for small governments and so does not require a small government agency plan under UMRA section 203.

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 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, the Comptroller General of the United States prior to publication of the final rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will become effective on the date of publication in the Federal Register .

Under Executive Order 12875, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a state, local, or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget a description of the extent of EPA's prior consultation with representatives of affected state, local, and tribal governments, the nature of their concerns, copies of written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of state, local, and tribal governments “to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.” This rule does not create a mandate on state, local or tribal governments. The rule does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) of Executive Order 12875 do not apply to this rule.

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

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to meaningful and timely input” in the development of regulatory policies on matters that significantly or uniquely affect their communities of Indian tribal governments. This rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Under section 12(d) if the National Technology Transfer and Advancement Act, the Agency is directed 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, business practices, etc.) developed or adopted by voluntary consensus standard bodies. Where available and potentially applicable voluntary consensus standards are not used by EPA, the Act requires that Agency to provide Congress, through the OMB, an explanation of the reasons for not using such standards.

This rule does not establish any new technical standards and thus, the Agency has no need to consider the use of voluntary consensus standards in developing this final rule.

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001 et seq. ; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives a 6-month, 90-day, and 30-day notification addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless they take remedial action.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987 Comp.; p. 252.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991 Comp.; p. 309.

You can get an electronic copy using the Internet by—

(1) Searching the Department of Transportation's electronic Docket Management System (DMS) Web page http://dms.dot.gov/search;

(2) Accessing the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html; or

(3) Visiting the TSA's Laws and Regulations Web page at http://www.tsa.dot.gov/law_policy/law_policy_index.shtm.

In addition, copies are available by writing or calling the individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to identify the docket number of this rulemaking.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires TSA to comply with small entity requests for information or advice about compliance with statutes and regulations within TSA's jurisdiction. Any small entity that has a question about this document may contact the person listed in For Further Information Contact for information. You can get further information regarding SBREFA on the Small Business Administration's Web page at http://www.sba.gov/advo/laws/law_lib.html.

The terrorist attacks of September 11, 2001, led Congress to enact the Aviation and Transportation Security Act (ATSA), Pub. L. 107-71, November 19, 2001. ATSA created the Transportation Security Administration (TSA) and transferred responsibility for aviation security from the Federal Aviation Administration (FAA) to TSA. On February 22, 2002, TSA published a final rule transferring the bulk of FAA's aviation security regulations to TSA and adding new security standards required by ATSA. 67 FR 8340. Regulations concerning aircraft operator security, including private charter operations, previously codified at 14 CFR part 108, are now codified at 49 CFR part 1544. Section 1544.101 requires aircraft operators to adopt and implement a security program, the components of which vary depending on the type of aviation operation, volume of passengers, departure and arrival location, and type of aircraft. Depending on these operational characteristics, the security program may include procedures for screening individuals and property, training screeners, maintaining perimeter security, protecting aircraft from unauthorized entry, completing background investigations on employees, and other security measures.

There are two types of private charters, which are defined in section 1540.5. First, private charters include any flight in which the charterer engages the total passenger capacity of the aircraft for carrying passengers, the passengers are invited by the charterer, the cost of the flight is borne entirely by the charterer, and the flight is not advertised to the public in any way, to solicit passengers. Second, private charters include any flight for which the total passenger capacity of the aircraft is used for the purpose of civilian or military air movement, conducted under contract with the U.S. government or a foreign government. A public charter is defined as any charter that is not a private charter.

Section 1544.101(f) sets forth the required security program components for private charter operations that enplane or deplane into a sterile area. Pursuant to § 1544.101(f), these operations must establish a program that includes acceptance and screening of individuals and accessible property (1544.201, 1544.207), use of metal detection devices (1544.209), use of X-ray systems (1544.211), security coordinators (1544.215), law enforcement personnel (1544.217), accessible weapons (1544.219), criminal history records checks (1544.229, 1544.230), training for security coordinators and crewmembers (1544.233), training for individuals with security-related duties (1544.235), bomb or air piracy threats (1544.303), security directives (1544.305), and all of subpart E concerning screener qualifications when the aircraft operator performs screening.

Since 1978, operators of public charters have been subject to the same security requirements as operators of aircraft in scheduled service. Private charters, however, have operated under different requirements. In private charters, the passengers choose to travel together. They may be related to one another in some way, such as being employed by the same company or on the same sports team, and so the risk that one passenger would endanger the others appeared to be low. Therefore, unless the private charter deplaned into or enplaned from a sterile area, the full panoply of security procedures did not apply. In the current threat environment, TSA believes it is necessary to reevaluate these relationships to ensure that an adequate level of security exists for private operations that do not make use of airport sterile areas. As was plainly illustrated in the September 11 attacks, terrorists may blend into their environment, interact with others easily, persistently seek out vulnerabilities in the system, and travel in groups in order to accomplish their goals more efficiently.

Therefore, TSA established additional security measures for private charters that do not use airport sterile areas to prevent the introduction of weapons, explosives, or incendiaries onto the aircraft that could enable an individual to commandeer the aircraft and use it to do harm. On June 19, 2002, TSA published a final rule that amended part 1544 by requiring all private charter operators using aircraft with a maximum certificated takeoff weight of 95,000 pounds or more (95,000 MTOW) to increase security measures. 67 FR 41635, June 19, 2002. TSA selected this class of aircraft because their size could cause great damage to targets on the ground. In addition, many of these aircraft are used in scheduled passenger service one day and in private charter service the next. While in scheduled passenger service, the operator and crew must operate in accordance with a full security program that requires securing the aircraft and screening individuals and their accessible property. TSA reasoned that these operators should ensure that all individuals and accessible property are screened, regardless of whether they are in private charter or scheduled service. Therefore, TSA added language in § 1544.101(f) to require non-government, private charter operators of aircraft with a 95,000 MTOW, regardless of where they deplane or enplane passengers, to ensure that the individuals on board and their accessible property are screened prior to boarding. Also, TSA added language to paragraph (f) requiring these private charter operators to comply with § 1544.225 regarding the security of aircraft and facilities. In order for individual property screening to be effective, operators must ensure that the aircraft is free of weapons, explosives, and incendiaries before individuals board. Private charter operators must have security measures in place to ensure the integrity of the aircraft.

For most passenger screening under part 1544, the passenger is screened before entering a sterile area. The gate at which the passenger boards the aircraft is typically within the sterile area. Subpart B of part 1540 contains rules that apply to many persons, including airport operators, airport tenants, aircraft operators, foreign air carriers, indirect carriers, employees of these entities, passengers, and individuals at airports. In order to make clear who must comply with screening procedures, § 1540.107 requires all individuals who enter sterile areas to submit to screening. For private charter screening, however, there may be no sterile area. Accordingly, TSA amended § 1540.107 to make clear that individuals on private charters must submit to screening before boarding an aircraft. Similar changes were made to § 1540.111(a)(1), which provides that an individual may not have a weapon, explosive, or incendiary when screening begins.

TSA received more than 100 comments in response to the request for comments issued with the rule in June. After consideration of these comments and additional analysis, TSA believes that the current threshold for determining which aircraft should be subject to the screening requirement does not adequately capture the larger aircraft TSA intended to cover. The weight threshold of 95,000 MTOW, although a reasonable measure of aircraft size, is awkward in practical application. In some cases, this figure divides an aircraft type into two groups: those certified to takeoff at weights over 95,000 pounds and those certified at weights under 95,000 pounds. Therefore, larger aircraft that TSA intends to cover in this rule fall out of the standard. For instance, early models of the DC-9 aircraft are certified to takeoff with weights less than 95,000 pounds, even though these aircraft can seat 70 passengers and appear to be nearly identical to subsequent models with a MTOW in excess of 95,000 pounds that are subject to the screening requirement.

In addition, as a result of comments, TSA reviewed an international security standard that was established to determine when hardened cockpit doors should be required. This standard applies to aircraft that weigh in excess of 45,500 kg. (100,309.3 pounds), or with 61 or more seats. This standard, by using both weight and seating configuration, captures the anomalies discussed above and in greater detail below that the 95,000 MTOW threshold does not cover. Many commenters suggested a seating configuration threshold and many suggested the international standard. TSA agrees that the international standard is a more complete approach to private charter security and so is amending the rule to incorporate it.

Finally, TSA received many comments from charter operators and small airports concerning the difficulties of scheduling charter service to accommodate the presence of TSA screeners. Most charters depend on flexibility in location and hours of operation to remain economically viable. If TSA requires all private charter operators to use TSA screeners and TSA screening checkpoints, charter operators will lose their flexibility and economic vitality. As a result of these comments, TSA is affirmatively authorizing the use of non-TSA screeners under certain circumstances.

When TSA issued the rule in June 2002 establishing a weight threshold to determine which private charter passengers must be screened, the agency requested comments from the industry and interested parties. Approximately 100 entities responded and commented primarily on five areas: confusion about the definition of “private charter,” the unique operational difficulties charters may face, small airport concerns, issues specific to Alaskan operators, and the weight threshold. A summary of the comments follows, arranged by subject matter.

Some organizations requested clarification of the definition of “private charter.” The complete definition can be found in 49 CFR 1540.5. To summarize, a non-government, private charter is any aircraft operator flight in which the charterer engages the total passenger capacity of the aircraft, the cost of the flight is borne by the charterer and not directly or indirectly by any passenger, and the flight is not advertised in any way to solicit passengers. Also, government private charters include operations in which the total passenger capacity is used for government civilian or military air travel. The rule exempts government charters from the screening requirement, unless they enplane from or deplane into a sterile area. Government charters, such as a Department of Defense flight, have security procedures in place that adequately address security risks. Also, the passengers on these government charters may be required to carry weapons, which would be prohibited in other passenger operations.

Several commenters expressed concern about the adverse impact the rule will have on private charter operations. Comment: Private charters often use small airports in remote locations where there is no terminal or baggage check area. If the final security program requires typical screening checkpoints and magnetometers, charters would be forced to alter their network of operations entirely and use large airports where standard security procedures are in place. Also, charter operators would have to change their hours of operation to depart only when established screening checkpoints were in operation. These changes will undermine the flexibility and economic benefits charters offer to passengers, organizations, and small airports. Some organizations that make use of private charters on a regular basis, such as professional and collegiate sports teams, must travel to and from remote locations frequently and at odd hours. Altering these charter operations dramatically would impose significant barriers to completing normal business activities. Many charter operators use Fixed Base Operators (FBO) to handle administrative and operational issues at small airports. However, there are only two FBOs in the country that have screening facilities available for charter operations. If the final security program required these operators to conduct all screening at established screening checkpoints, additional facilities must be constructed and installed, which would impose significant financial burdens and time delays. Response: As is discussed in greater detail below, TSA will authorize procedures to prevent these difficulties.

The commenters also asserted that private charters possess unique characteristics that diminish the risk of dangerous or unlawful acts. Comment: Typically, charter clientele are “known” to the charter operators or to each other. They work together or play on the same sports team, and so the likelihood that someone unknown or with suspect motives would commandeer the aircraft or injure passengers is remote. Also, the charter clientele often are “high profile” individuals who generate crowds and confusion in airport terminals. Consequently, additional security may be necessary and existing security officers are diverted from their standard duties. Further, sports teams travel with medical personnel and equipment that is needed in-flight. Some of this equipment may not be permitted in the aircraft cabin under standard screening procedures. The professional sports teams typically have security procedures in place to ensure that passengers' baggage is placed in a secure area and that only designated passengers are permitted to board the aircraft. All of these unique qualities warrant special procedures for private charter operations. Response: As is discussed in greater detail below, TSA will authorize use on non-TSA screeners to prevent these difficulties. We note that TSA does permit some medical equipment that otherwise would be prohibited on scheduled flights, and will work with the sports teams to consider what medical equipment should be permitted in the cabin.

Many commenters expressed concern about the fate of small airports that are unable to meet the level of security required in the charter rule. Comment: If these airports cannot facilitate new screening requirements, flights will be diverted to airports serving scheduled operations. This change would have an adverse economic impact on many communities. Also, large airports that become the beneficiaries of this change might not be staffed to handle security procedures adequately. One airport that serves a high number of private charters commented that the rule would not be effective as a stand-alone security mechanism, because screened charter passengers and their accessible property could be co-mingled with unscreened passengers and baggage on common ramp areas. Another regional airport urged TSA to develop a “trusted traveler” program to permit vetted passengers to bypass security prior to boarding. Response: The private charter security rule is not a “stand-alone” mechanism; there are additional security regulations that prevent unscreened passengers from entering airport sterile areas and areas that are designated as security identification display areas in airports. In addition, the final security program TSA issues for private charter operators will include procedures that prevent screened passengers from mingling with non-screened passengers. The “trusted traveler” program will be addressed in another rulemaking proceeding.

Commenters also urged TSA to adopt security procedures for private charters operating in Alaska that can accommodate the special characteristics of the Alaskan environment. Comment: Alaska has a limited highway system and vast terrain, so there is a high volume of intrastate air travel. For instance, private zinc and lead mines located north of the Arctic Circle in a remote section of Alaska are served exclusively by private charter service. The only road on the property runs to their port site; none exist to any other community. Alaska Airlines operates two private charters per week to the mines to rotate personnel and supplies. There are many similar situations in Alaska, where the need for accessible flexible air travel is great. Response: The procedures TSA will authorize in the final security program, such as permitting the use of non-TSA screeners, will provide adequate flexibility to private charter operators in Alaska to ensure that operations can continue as needed.

Comment: Many commenters asked for clarification on the kind of security procedures required by the rule and the security program.

Response: The process used to develop air carrier and airport security programs involves two distinct phases. The first is issuance of a rule that establishes minimum security standards that the operator or airport must meet. For the charter rule, TSA requires affected private charter operators to adhere to a TSA-approved security program that meets the standards of 49 CFR 1544.101(f) and 1544.103. Also, TSA requires affected private charter operators to ensure that passengers and their accessible property are screened prior to boarding. The second phase of the process involves developing a security program that sets forth the details and procedures used to meet the minimum rule standards. The security program is considered sensitive security information (SSI) and cannot be issued to the public, placed in the docket, or discussed with specificity in this document. TSA developed a standard security program and forwarded it to affected entities for comment. Each entity had an opportunity to comment on the standard program, which many have done in this proceeding, and requested changes to accommodate unique operations or characteristics. TSA may approve the changes or require the operator to adhere to the standard program. The details of the program that the commenters are seeking most likely exist in the final security program, which TSA cannot discuss in this document. However, they can be addressed privately between the affected operator and TSA staff.

The weight threshold is the factor that determines which private charter operators must screen passengers and accessible property. This issue generated many comments.

Comment: Some operators and manufacturers asked TSA to specify why 95,000 MTOW was selected. Some recommended that TSA redraw the line at 100,000 MTOW, which is part of the standard the International Civil Aviation Organization (ICAO) adopted in February 2002 to distinguish which cockpit doors must be reinforced to enhance security. Actually, the accurate ICAO standard requires reinforcing cockpit doors in aircraft with an MTOW of greater than 45,500 kg, (100,309.3 pounds), or with a seating capacity greater than 60. Some commenters asserted that TSA should include aircraft fuel capacity as part of the threshold, due to the damage fuel can cause on impact. Also, use of “more than 19 seats,” or “more than 75 seats” in addition to, or in place of the maximum takeoff weight, would be preferable to the standard established in June 2002.

One manufacturer and its customers claimed that the standard creates an inequity in the treatment of the Canadian-manufactured, Bombardier Aerospace Global Express. There are several MTOWs listed for the Global Express, some less than, some more than 95,000 MTOW. The U.S.-manufactured Gulfstream V is the Global Express' primary competitor, and has a 90,700 MTOW. Therefore, private charter operations in the Gulfstream are not subject to the screening requirement, but certain models of the Global Express are, pursuant to the current rule language. Bombardier asserted that the rule is discriminatory and constitutes an unfair trade practice.

Response: As is discussed in greater detail below, TSA believes that the current international standard, which combines weight and passenger seating capacity, is the standard to adopt for private charter operations.

TSA again analyzed charter operations, the existing aircraft fleet, and the existing standard, and determined that the threshold for passenger and carry-on baggage screening in private charter operations should be changed. TSA is amending the rule to adopt the ICAO standard, or private charter operations in aircraft with a MTOW greater than 45,500 kg., or with a passenger seating configuration of 61 or more. In pounds, the threshold is a MTOW greater than 100,309.3.

When TSA established 95,000 MTOW as the threshold, TSA sought to cover the larger aircraft that are used often in charter service. The degree to which certain aircraft are selected for charter service often depends on the number of aircraft in service, the number of runways and airports the aircraft is capable of using, and the likelihood that the operator is amenable to leasing the aircraft out to a group. For instance, the DC-9 series aircraft are used in approximately 300 flights per day. (Please note that there is no data available that distinguishes the number of charter flights from scheduled passenger service). These aircraft can operate from short runways because of the wing lift and significant engine thrust, which enables them to make use of nearly all airports. These aircraft have a maximum passenger seating configuration of more than 70 passengers, generally are not privately owned, and have the potential to be used in charter and scheduled service. When used in scheduled or public charter service, they must be operated under a full security program (49 CFR 1544.101(a)), which includes screening passengers and accessible property. TSA believes that the DC-9 series and similar aircraft constitute the class of aircraft that should be covered in this rule.

TSA also selected 95,000 MTOW for the rule published in June 2002, because it had been used previously by FAA and TSA as a benchmark to distinguish larger aircraft. For instance, pursuant to the authority set forth in Special Federal Aviation Regulation (SFAR) 91, TSA issued a notice to certain all-cargo carriers with 95,000 MTOW that required them to adopt additional security measures.

Maximum certificated takeoff weight is the maximum weight at which the FAA has determined an aircraft can take off, and is derived from engineering data, aircraft weight, acceleration, lift, and performance testing. The aircraft manufacturer must submit design and performance figures to the FAA in order to be certified to fly at certain weights, speeds, seating configurations, fuel capacity, and so on. The MTOW is established during this process, based on a review of the engineering data and actual performance testing, and is listed on the FAA's Type Certificate Data Sheet (TCDS). Over time, manufacturers may conduct additional performance testing to prove to FAA that the aircraft can be operated safely at a higher MTOW or speed, or with more cargo. In order to increase these operational limits, the aircraft must undergo additional performance testing and may be structurally modified. These subsequent MTOW figures are then listed on the TCDS as the authorized takeoff weight.

A review of the aircraft that fall within this standard indicates they are used prevalently, would generate significant impact damage, carry a high number of passengers, and have significant fuel capacity. This threshold captures aircraft in which it is unlikely that all passengers and crew know each other or share an affinity relationship, which is the group TSA intended to cover. It is less likely that a corporate jet with fewer than 20 seats would be chartered by a group of passengers that are strangers or do not know the crew.

TSA and FAA have also used seating configuration to categorize aircraft by size and use. Section 1544.101 establishes requirements for security programs based on seating configuration, and requires greater security measures for aircraft with a seating configuration of 61 or more in scheduled or public charter service. Seating capacity, like MTOW, is an indicator of aircraft size and the extent of damage the aircraft would cause if used in a terrorist act. It is also reasonable to assume that passengers in an aircraft with a large seating capacity are less likely to know one another and the crew than individuals traveling in a corporate jet. TSA has determined that it is appropriate to use both seating configuration and MTOW to determine which aircraft are subject to the rule, and therefore is adopting the ICAO standard for the threshold in this amendment to the rule and the seating configuration now used for scheduled and public charter service. By using both the seating capacity and MTOW, TSA will cover the target group of aircraft, but will exclude private corporate jets with a small seating capacity.

TSA is adding the seating configuration of 61 seats or more for several reasons. First, TSA believes it is important to cover the DC-9-10 series aircraft, which have a seating configuration of 79 through 109. Some of these aircraft have a MTOW under 95,000 and would not be subject to screening under the previous threshold. These aircraft were designed specifically to operate from short runways due to their high wing lift and powerful engine thrust. Consequently, they can operate at many small airports, which might be serviced by charter operators. There are approximately 47 DC-9-10 series aircraft currently registered with FAA, making their potential for use in charter operations worthy of consideration for enhanced security standards. By adding seating configuration to the security threshold, TSA will capture the larger, but lighter, charter aircraft. Many aircraft, although under 95,000 MTOW, have a seating configuration of more than 100 seats, and these passengers should undergo security screening.

As discussed previously, ICAO recently established a requirement to install reinforced cockpit doors in aircraft with an MTOW of 45,500 kg (100,309.3 pounds) or a passenger seating configuration of 61 or more. Many commenters urged TSA to adopt a standard based on seating configuration, and some commenters suggested that TSA adopt the weight limit used in the ICAO standard. For years, scheduled and public charter aircraft with a passenger seating configuration of more than 61 seats have been required to operate with a full security program, which includes passenger screening. (49 CFR 1544.101(a)).

Due to the addition of seating configuration as a threshold, there are aircraft covered by the rule now that were not covered when the rule was issued in June 2002. The following aircraft are included in the group of new aircraft covered: British Aerospace ATP, 146-100A and 146-200A; Fokker-F.28 Mark 0100, F.28 Mark 4000, F.28 Mark 0070; Bombardier DHC-8-401; McDonnell Douglas DC-9-10 series; and AVRO RJ85A. Any private charter operators that use these aircraft and do not operate aircraft covered by the rule issued June 2002, would not have anticipated the need to develop screening procedures or comment on the TSA standard security program. Therefore, TSA has established a compliance schedule for these operators to ensure that they have adequate time to prepare.

As discussed previously, many private charter operators use small airports that do not have established screening checkpoints or corresponding screening equipment. Also, many private charters operate at odd hours when airport terminals with screening checkpoints are not open. Many of the commenters raised this issue as a significant impediment to their ongoing viability, and urged TSA to permit screening by non-TSA personnel. However, a few commenters questioned TSA's ability to allow screening by non-TSA employees. TSA has determined that in certain cases, screening may be completed by screeners that are not TSA employees. TSA will authorize the use of non-TSA screeners in the security program, under certain circumstances. For instance, if checkpoint screening in an airport terminal is not available due to the time of day or location, non-TSA screeners might be used. Also, if using an established airport screening checkpoint creates logistical difficulties or disrupts ongoing screening activities in the airport, non-TSA screeners might be used by the private charter operators.

ATSA includes a requirement that Federal employees carry out passenger and property screening. However, an examination of other provisions of title 49 of the U.S. Code and the history of the screening requirement demonstrates that Congress did not intend to require screening on all flights. Congress has recognized that passenger and property screening has not been required with respect to all aircraft—in particular, the Under Secretary is specifically authorized to exempt unscheduled operations from 49 U.S.C. 44901. Congress recognized that other specific types of operations were not subject to screening requirements at the time it enacted ATSA, and imposed no such requirements.

TSA will authorize private charter operators to use non-TSA screeners who complete the TSA-approved screener training program. TSA has developed the training in modular format, and the non-TSA screeners who screen these private charter operations must receive training on the type of equipment and procedures they will be responsible for using. For instance, if the screening location is not equipped with a walk-through metal detector (WTMD), the screeners at this location are not required to complete the training module that addresses WTMD. The private charter security program will provide details concerning training for screeners in private charter operations.

TSA will allow some flexibility in determining which individuals may act as screeners for private charter operations that do not use established screening checkpoints. TSA will consider such factors as the degree of independence the screener has in relation to the passengers, and the important duties the flightcrew must complete in preparation for departure. A system in which individuals screen their supervisors, close associates, or friends would not be advisable. This would require the screener to find and report prohibited or illegal items, which could lead to disciplinary action against a colleague or supervisor, or the loss of the charter contract. An arm's-length relationship between screener and passenger creates more effective and thorough screening. Also, the aircraft flightcrew typically have many safety and security responsibilities to complete prior to departure, which could make completion of the screening impossible or ineffective. Many commenters suggested that FBO employees, where present, are good candidates for screeners. Also, commenters suggested that other airport personnel, including local law enforcement personnel, may be appropriate candidates to conduct screening. TSA is aware of the fact that all affected entities must be able to complete the TSA-authorized training for screeners shortly after the final security program is released. The new compliance dates established in this rule amendment should accommodate the time needed to adequately train screening personnel.

This rule contains information collection activities subject to the Paperwork Reduction Act (PRA) (44 U.S.C. 3507(d)). In accordance with the PRA, the paperwork burden associated with the rule will be submitted to the Office of Management and Budget (OMB) for review. The PRA provides that 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 number for this information collection will be published in the Federal Register after it has been approved by OMB.

Need: This rule requires operators using aircraft in private charter operations with a maximum certificated takeoff weight greater than 100,309.3 pounds, or a seating configuration of 61 or more to ensure that individuals and their accessible property are screened prior to boarding.

Description of Respondents: All new and existing operators using aircraft in private charter operations with a maximum certificated takeoff weight greater than 100,309.3 pounds, or a seating capacity of 61 or more.

Burden: TSA does not currently have precise data on which aircraft operators have aircraft in private charter operations with a certificated takeoff weight greater than 100,309.3 pounds, or a seating configuration of 61 or more. TSA estimates that there are approximately 25 operators currently operating under 14 CFR part 121 (Domestic, Flag, and Supplemental Operations) that have no program in place and so will have a new paperwork burden under this rule. In addition, TSA estimates that there are approximately 45 operators operating under 14 CFR part 121 with some portion of a security program with existing paperwork procedures in place now. Also, there are airlines using aircraft with an original certificated takeoff weight of 100,309.3 pounds or more in charter service and in traditional commercial passenger service. These operators must currently do screening for commercial service, but will have an additional paperwork burden by now completing those screening activities for private charters. It is very difficult for TSA to determine what this new paperwork burden will be for these operators. Accordingly, TSA will calculate the paperwork burden using estimates assuming that 70 aircraft operators will be subject to this rule. Thus, these assumptions will overestimate the overall burden. In addition, TSA assumes no change in the number of aircraft operators over the next 10 years. Without this simplifying assumption, it would be impossible to estimate the total effect of these changes over the ten-year period.

Each air carrier subject to this rule will need to establish a program that provides for screening individuals and accessible property; training all employees with security-related duties; training all security coordinators and crewmembers; acknowledging receipt of, and distributing Security Directives and Information Circulars; and preparing, maintaining, and accommodating modifications to a security program. The total ten-year paperwork burden is approximately 6,820 hours at a cost of $165,900. The annual burden totals approximately 560 hours at a cost of $11,200.

TSA anticipates that the regulated entities will have to purchase no additional equipment.

This rulemaking was originally reviewed by the OMB. It is significant within the meaning of the Executive Order and DOT's policies and procedures. No regulatory analysis or evaluation accompanies this rule. TSA is in the process of determining whether this rule will have a significant economic impact on a substantial number of small entities as defined in the Regulatory Flexibility Act of 1980, as amended. TSA recognizes that this rule may impose costs on some affected operators, which stem from developing and implementing screening procedures and other security measures. However, given the current security threat, TSA believes it is necessary to require these enhanced security measures at this time. It is difficult to assess the costs of the rule until the final security program is completed, which TSA plans to finish shortly. TSA will assess the costs and benefits of the rule once the security program is in final form and place an economic analysis of it in the docket on or before January 24, 2003. TSA will make changes to the rule, if necessary, as a result of the economic analysis.

TSA has examined this rule under the principles and criteria of Executive Order 13132, Federalism. TSA has determined that this action will not have a substantial direct effect on the States, or the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, this final rule does not have federalism implications.

The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety and security, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. TSA has assessed the potential effect of this amendment and has determined that it will impose the same costs on domestic and international entities and thus has a neutral trade impact.

The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub. L. 104-4 on March 22, 1995, is intended to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement that assesses the effect of any Federal mandate found in a rulemaking action that may result in an expenditure of $100 million or more (adjusted annually for inflation) in any one year by State, local and tribal governments, in the aggregate, or by the private sector. Such a mandate is identified as a “significant regulatory action.” The Act does not apply to a regulatory action in which no notice of proposed rulemaking is published, as is the case in this proceeding. Accordingly, TSA has not prepared a statement under the Act.

TSA has reviewed this action for purposes of the National Environmental Review Policy Act of 1969 (42 U.S.C. 4321-4347) and has determined that this action will not have a significant effect on the human environment.

The energy impact of this rule has been assessed in accordance with the Energy Policy and Conservation Act (EPCA), Pub. L. 94-163, as amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined that this rule is not a major regulatory action under the provisions of the EPCA.

The Fishery Management Plan for the Atlantic Surfclam and Ocean Quahog Fisheries (FMP) requires NMFS, in consultation with the Mid-Atlantic Fishery Management Council (Council), to specify quotas for surfclams and ocean quahogs on an annual basis from a range that represents the optimum yield (OY) for each fishery. It is the policy of the Council that the levels selected allow sustainable fishing to continue at that level for at least 10 years for surfclams and 30 years for ocean quahogs. The Council must also consider the economic impacts of the quotas. Regulations implementing Amendment 10 to the FMP, published on May 19, 1998 (63 FR 27481), added Maine mahogany ocean quahogs to the management unit and provide that a small artisanal fishery for ocean quahogs in the waters north of 43°50′ N. lat. will have an annual quota within a range of 17,000 to 100,000 Maine bu (5,991 to 35,240 hectoliters (hL)) with an initial amount of 100,000 Maine bu (35,240 hL). As specified in Amendment 10, the Maine mahogany ocean quahog quota is in addition to the quota specified for the ocean quahog fishery.

Detailed background information regarding the development of these quotas for 2003 was provided in the preamble to the proposed rule published in the Federal Register at 67 FR 65938, October 29, 2002, and is not repeated here. The comment period for that rule ended on November 27, 2002. No comments were received during the comment period, and the final quotas for 2003, which are unchanged from those in the proposed rule, are shown in the table below. The 2003 quotas for both ocean quahogs and Maine mahogany quahogs are the same as the 2002 quotas. However, the 2003 surfclam quota is 4 percent higher than the 2002 quotas.

The FMP, which was implemented by publication of the final rule in the Federal Register on December 15, 1999 (64 FR 69888), divides management unit species into two categories: actively managed and monitored. Harvest guidelines for actively managed species (Pacific sardine and Pacific mackerel) are based on formulas applied to current biomass estimates. Biomass estimates are not calculated for species that are only monitored (jack mackerel, northern anchovy, and market squid).

At a public meeting each year, the biomass for each actively managed species is reviewed by the Pacific Fishery Management Council's (Council) Coastal Pelagic Species Management Team (Team). The biomass, harvest guideline, and status of the fisheries are then reviewed at a public meeting of the Council's CPS Advisory Subpanel (Subpanel). This information is also reviewed by the Council's Scientific and Statistical Committee (SSC). The Council reviews reports from the Team, Subpanel, and SSC, and then, after providing time for public comment, makes its recommendation to NMFS. The annual harvest guideline and season structure are published by NMFS in the Federal Register as soon as practicable before the beginning of the appropriate fishing season. The Pacific sardine season begins on January 1 and ends on December 31 of each year.

The Team meeting took place at the Southwest Regional Office in Long Beach, CA on October 8, 2002. A public meeting between the Team and the Subpanel was held at the same location that afternoon. The Council reviewed the report at its October-November meeting in Foster City, CA, where comments from its advisory bodies and the public were heard. A proposed rule was published in the Federal Register on November 25, 2002 (67 FR 7053), requesting public comments. The public comment period ended on December 10, 2002, and no comments were received.

Based on a biomass estimate of 999,871 metric tons (mt), the harvest guideline for Pacific sardine for January 1, 2003, through December 31, 2003, is 110,908 mt.

The FMP allocates the harvest guideline one-third for Subarea A, which is north of 35°40′ N. lat. (Pt. Piedras Blancas, CA) to the Canadian border, and two-thirds for Subarea B, which is south of 35°40′ N. lat. to the Mexican border. The harvest off Oregon and Washington has increased from 1 mt in 1998 to almost 38,000 mt in 2002. This expansion of sardine fisheries to the Pacific northwest has fostered a review of the current allocation system in the FMP with the aim of developing the most equitable distribution of the available resource between all users. The Council has directed its Team to analyze several alternatives to the current allocation system; however, unless and until the FMP is amended, the current allocation system will remain in effect. Therefore, the northern allocation for 2003 is 36,969 mt; the southern allocation is 73,939 mt. All Pacific sardine harvested beginning January 1, 2003, will be credited toward the 2003 harvest guideline.

When an allocation or the harvest guideline is reached, a landing allowance of sardine of up to 45 percent by weight of any landing of CPS is authorized by the FMP. An incidental allowance prevents fishermen from being cited for a violation when sardine occur in schools of other CPS, and it minimizes bycatch of sardine if sardine are inadvertently caught while fishing for other CPS. The Council recommended that the 45 percent incidental allowance be applied when an allocation or harvest guideline is reached.

The sardine population was estimated using a modified version of the integrated stock assessment model called Catch at Age Analysis of Sardine Two Area Model (CANSAR TAM). CANSAR-TAM is a forward-casting, age-structured analysis using fishery dependent and fishery independent data to obtain annual estimates of sardine abundance, year-class strength, and age-specific fishing mortality for 1983 through 2002. The modification of CANSAR-TAM was developed to account for the expansion of the Pacific sardine stock northward to include waters off the northwest Pacific coast. Information on the fishery and the stock assessment are found in the report Stock Assessment of Pacific Sardine with Management Recommendations for 2003 (see ADDRESSES ).

The formula in the FMP uses the following factors to determine the harvest guideline:

1. The biomass of age one sardine and above. For 2003, this estimate is 999,871 mt.

2. The cutoff. This is the biomass level below which no commercial fishery is allowed. The FMP established this level at 150,000 mt.

3. The portion of the sardine biomass that is in U.S. waters. For 2003, this estimate is 87 percent, based on the average of larval distribution obtained from scientific cruises and the distribution of the resource obtained from logbooks of fish-spotters.

4. The harvest fraction. This is the percentage of the biomass above 150,000 mt that may be harvested. The fraction used varies (5-15 percent) with current ocean temperatures. A higher fraction is used for warmer ocean temperatures, which favor the production of Pacific sardine, and a lower fraction is used for cooler temperatures. For 2003, the fraction was 15 percent based on three seasons of sea surface temperature at Scripps Pier, CA.

Based on the estimated biomass of 999,871 mt and the formula in the FMP, a harvest guideline of 110,908 mt was determined for the fishery beginning January 1, 2003. The harvest guideline is allocated one-third for Subarea A, which is north of 35°40′ N. lat. (Pt. Piedras Blancas, CA) to the Canadian border, and two-thirds for Subarea B, which is south of 35°40′ N. lat. to the Mexican border. The northern allocation is 36,969 mt; the southern allocation is 73,939 mt. If an allocation or the harvest guideline is reached, up to 45 percent by weight of Pacific sardine may be landed in any landing of Pacific mackerel, jack mackerel, northern anchovy, or market squid.

These final specifications are issued under the authority of, and NMFS has determined that they are in accordance with, the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and the regulations implementing the FMP at 50 CFR part 660, subpart I.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule for this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule. No comments were received regarding the economic impacts of this action. As a result, no regulatory flexibility analysis was prepared.