The rulemaking has the simple aim of issuing a new general license to facilitate the import of major nuclear reactor components. Because the NRC believes that this action should not cause controversy, the NRC is using the direct final rule process for this rule. The amendment in this rule will become effective on August 11, 2003. However, if the NRC receives significant adverse comments on this direct final rule by June 27, 2003, the NRC will publish a document that withdraws this action. In that event, the comments received in response to these amendments would then be considered as comments on the companion proposed rule published elsewhere in this Federal Register , and the comments will be addressed in a later final rule based on that proposed rule. Unless the modifications to the proposed rule are significant enough to require that it be republished as a proposed rule, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

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

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

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

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

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

(3) The comment causes the staff to make a change (other than editorial) to the rule.

Increasingly, NRC licensees need to import nuclear reactor vessel closure heads (which are not currently manufactured in the United States) to replace vessel closure heads at NRC-licensed reactors. Under the NRC's regulations governing the import and export of nuclear equipment in 10 CFR Part 110, this item, constituting a significant part of the reactor pressure vessel, is categorized as a “major component” of a nuclear reactor, along with three other significant parts of a nuclear reactor. See 10 CFR 110.2 (definition of “Utilization facility”); 10 CFR Part 110, Appendix A (defining “Reactor pressure vessels”). The NRC's regulations currently require a specific license for importing and exporting any of these four major components of a nuclear reactor into and out of the United States. See 10 CFR 110.5 and 110.20(a)(2).

In anticipation of requests for imports of reactor vessel closure heads and possibly other major components, the NRC reexamined the need for a specific license authorization for import of major components into the United States. After consultation with the U.S. Department of State, the NRC has concluded that major components of a nuclear reactor should be permitted to be imported into the United States under general license, provided that legally binding arrangements are in place establishing that the import is for end-use by a 10 CFR Part 50 or Part 52 licensee. The NRC believes that such a general license will facilitate domestic reactor licensees' obtaining needed major components for safety-related maintenance and refurbishing of the reactor by permitting import of these items. The NRC has determined that the promulgation of this general license will not be inimical to the common defense and security or constitute an unreasonable risk to the public health and safety and will otherwise meet applicable statutory requirements.

The NRC emphasizes that the amendment set forth in this rule does not apply to exports of those components addressed in this regulation.

The National Technology Transfer and Advancement Act of 1995, Public Law 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 direct final rule, the NRC is adopting a general rule for a certain category of imports. This action does not constitute the establishment of a standard for which the use of a voluntary consensus standard would be applicable.

The NRC has determined that this direct 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 regulation.

This direct final rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget, approval number 3150-0036.

If a means used to impose an information collection does not display a currently valid OMB control number, the NRC may not conduct or sponsor, and a person is not required to respond to, the information collection.

The NRC already controls imports of major components of utilization facilities. Currently, the NRC's import regulations in part 110 require a specific license to import these components into the United States. The NRC's sole objective in developing the revision is to facilitate imports of major nuclear reactor components for end-use in safety-related maintenance and refurbishment efforts at NRC-licensed reactors by reducing the unnecessary burdens imposed by specific licensing. The direct final rule accomplishes this objective by permitting imports of major components to be made under general license. There are no alternatives for achieving the stated objective. By facilitating maintenance of NRC-licensed reactors, this NRC rulemaking action will have a positive impact on protection of the public health and safety and the common defense and security and, at the same time, reduce unnecessary regulatory burdens. In this respect, the NRC believes that no persons will be adversely affected by this rule.

As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the Commission certifies that this direct final rule will not have a significant economic impact on a substantial number of small entities. The rule affects only companies importing major components for end-use at nuclear power plants. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act (5 U.S.C. 601(3)), or the Size Standards established by the NRC (10 CFR 2.810).

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

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 Home Mortgage Disclosure Act (HMDA; 12 U.S.C. 2801-10) has three purposes. One is to provide the public and government officials with data that will help show whether lenders are serving the housing needs of the neighborhoods and communities in which they are located. A second purpose is to help public officials target public investment to promote private investment where it is needed. A third purpose is to provide data that assist in identifying possible discriminatory lending patterns and enforcing antidiscrimination statutes.

HMDA accordingly requires certain depository and for-profit nondepository lenders to collect, report, and disclose data about originations and purchases of home purchase loans, home improvement loans, and refinancings. Lenders must also report data about applications that did not result in originations.

The Board's Regulation C (12 CFR part 203) implements HMDA. Regulation C generally requires that lenders report data about:

• Each application or loan, including the application date; the action taken and the date of that action; the loan amount; the loan type and purpose; and, if the loan is sold, the type of purchaser;

• Each applicant or borrower, including ethnicity, race, sex, and income; and

• Each property, including location and occupancy status.

Lenders report this information to their supervisory agencies on an application-by-application basis using a loan application register format (HMDA/LAR) set forth in appendix A to the regulation. Each application must be recorded within 30 calendar days after the end of each calendar quarter in which final action is taken (such as origination or purchase of a loan, or denial or withdrawal of an application) on the lender's HMDA/LAR. Lenders must make their HMDA/LARs—with certain fields redacted to preserve applicants' privacy—available to the public. The Federal Financial Institutions Examination Council (FFIEC), acting on behalf of the supervisory agencies, compiles the reported information and prepares an individual disclosure statement for each institution, aggregate reports for all covered lenders in each metropolitan area, and other reports. These disclosure statements and reports are available to the public.

The Board published final revisions to Regulation C on February 15, 2002, and June 27, 2002 (“the 2002 revisions”). 67 FR 7222; 67 FR 43218. The 2002 revisions include, among other things, requirements that lenders report the difference between a loan's annual percentage rate (APR) and the yield on Treasury securities with comparable maturity periods, if the difference equals or exceeds thresholds set by the Board; whether a loan is subject to the Home Ownership and Equity Protection Act (HOEPA); the lien status of applications and loans; and whether an application or loan involves a manufactured home. Certain definitions have also been revised. The definition of an application has been revised to include a request for preapproval as defined in the regulation, for purposes of reporting denials of such requests and identifying loan applications that result from a request for preapproval. The definition of a home improvement loan and the definition of a refinancing have been revised to provide more consistent and useful data. In addition, the 2002 revisions require lenders to request information on applicants' ethnicity, race, and sex in applications taken by telephone, and conform the collection of data on ethnicity and race to standards established by the Office of Management and Budget (OMB) in 1997.

The 2002 revisions were initially scheduled to take effect on January 1, 2003. In May 2002 the Board delayed the effective date, with two exceptions, to January 1, 2004. 67 FR 30771, May 8, 2002. The Board based its decision on a determination that some HMDA reporters, especially the largest ones, would not be able to fully implement the revised rule by January 1, 2003, without jeopardizing the quality and usefulness of the data and incurring substantial additional implementation costs that could be avoided by a postponement. The two exceptions related to telephone applications and to census tract data: (1) for all applications taken on or after January 1, 2003, lenders must ask telephone applicants for information on the applicant's race or national origin and sex; and (2) for all applications and loans reported on lenders' 2003 HMDA/LARs, lenders must use the census tract numbers and corresponding geographic areas from the 2000 Census.

On March 7, 2003, the Board proposed for comment rules on how to report data for applications received before January 1, 2004, but for which final action is taken in 2004. The rules are set forth in a new comment added to section 203.4 of the Staff Commentary to Regulation C. The Board received approximately 40 comments on the proposed comment. Most industry commenters supported the proposal's flexibility in providing that lenders may, but need not, use revised definitions and identify applications relating to manufactured homes for applications received before January 1, 2004. Industry commenters expressed varying views on the conversion rules for reporting information on ethnicity, race, and sex, and the requirement to report the rate spread beginning January 1, 2004, as discussed below.

Community groups generally opposed the comment, arguing that it would delay the effective date of the 2002 revisions. A few industry commenters opposed the comment on the grounds that flexibility could pose training problems for lenders and could impose additional programming costs if lenders must distinguish between applications received in 2003 and all other applications. Some of these commenters believed that the 2002 revisions should apply only to applications received on or after January 1, 2004.

The Board is adopting the comment substantially as proposed. Under the comment, lenders (1) will not have to indicate whether a loan applied for in 2003 involved a request for preapproval or related to a manufactured home; and (2) may, at their option, apply the current definitions of a home improvement loan and a refinancing in reporting loans applied for in 2003 and acted upon in 2004. The Board believes that the benefit of obtaining data on these items does not warrant the burden associated with revising systems to begin recording the necessary information before January 1, 2004. A lender may, however, opt to begin recording the information before January 1, 2004. If it does, the lender must be generally consistent in its approach; for example, a lender that opts to apply the revised definition of a home improvement loan must do so for all applications received in 2003 and reported in 2004.

The comment provides that lenders must follow special rules for reporting applicants' race and ethnicity for transitional applications, to take account of the changed categories. One technical clarification relating to the sex of a co-applicant has been made, as discussed below.

The Board proposed no transition rules for reporting the type of purchaser, whether a loan is subject to HOEPA, the lien status of applications and originated loans, and the rate spread, because information about these items is available at the time of final action. The final comment provides some flexibility in the case of the rate spread. For the reasons discussed below, lenders will not be required to report the rate spread for loans in which the rate lock occurs before January 1, 2004.

The affected data items are discussed below, in the order in which they appear on the revised HMDA/LAR.

Currently lenders must report in the “loan purpose” field whether an application or loan involves a one-to four-family dwelling or a multifamily dwelling, and manufactured homes are reported as one-to four-family dwellings. The 2002 revisions add a new field for “property type” and require lenders to identify applications and loans that involve manufactured homes. The final comment provides, as proposed, that for applications received before January 1, 2004, and acted upon in 2004, lenders may, but need not, indicate whether an application involves a manufactured home; lenders may report the property type as one-to four-family.

Regulation C requires lenders to report home improvement loans and refinancings. The definitions of a home improvement loan and a refinancing were substantially revised in the final rules adopted in 2002. A home improvement loan is defined in § 203.2(f) as a loan intended in whole or in part for home improvement and that the lender classifies as a home improvement loan. Under the 2002 revisions, dwelling-secured loans for home improvement purposes must be reported as home improvement loans beginning in 2004, whether or not the loans are classified as home improvement loans. Loans for home improvement purposes that are not dwelling-secured will continue to be reported only if the lender classifies the loans as home improvement loans.

A refinancing is defined as a transaction in which a new obligation satisfies and replaces an existing obligation by the same borrower. Currently, the commentary to § 203.1(c) allows lenders to select from among four scenarios in deciding which refinancings to report:

(1) The existing obligation was a home purchase or home improvement loan, as determined by the lender (for example, by reference to available documents);

(2) The applicant states that the existing obligation was a home purchase or home improvement loan;

(3) The existing obligation was secured by a lien on a dwelling; or

(4) The new obligation will be secured by a lien on a dwelling.

The proposed comment provided that for applications received before January 1, 2004, but for which final action is taken on or after January 1, 2004, lenders may continue to apply the current definitions. Based on comments received and its own analysis, the Board is adopting the guidance as proposed. The comment permits lenders, at their option, to apply the revised definitions to applications received before January 1, 2004.

Under the 2002 revisions, beginning in 2004, lenders must identify whether an application for a home purchase loan is a request for preapproval as defined in the revised regulation. Lenders must also report information on requests for preapproval that are denied; lenders may, but are not required to, report requests for preapproval that are approved but not accepted by the applicant.

The proposed comment provided that lenders may, but need not, report requests for preapproval received before January 1, 2004, that do not result in a traditional loan application. In addition, the proposed comment provided that lenders may, but need not, identify requests for preapproval as such if they were received before January 1, 2004. The Board is adopting the comment as proposed. Thus, for applications received before January 1, 2004, lenders will be permitted to use the code for “Not Applicable” in the preapproval field on the HMDA/LAR.

Ethnicity and Race. The 2002 revisions included changes to the requirement to collect information about an applicant's ethnicity and race, and to the codes that must be used to report this information on the HMDA/LAR. These changes were made to conform collection of information under Regulation C to standards established by OMB in 1997. Under the proposed transition rules, lenders would report monitoring data collected during 2003 on the 2004 LAR in accordance with conversion rules set forth in proposed comment 4(a)-4(iv).

Most commenters supported the proposed comment requiring lenders to convert the data on ethnicity and race to the new OMB standards. Some lenders suggested that the Board provide a table showing the conversion rules for information on ethnicity and race. Community groups, on the other hand, believed that the proposed comment was an unwarranted delay in the effective date of the 2002 revisions. In addition, a few lenders believed that transition rules are unnecessary, if the 2002 revisions are applied only to applications received on or after January 1, 2004.

Some industry commenters supported the conversion rules, but requested additional guidance. For example, some lenders asked whether they could begin to use the revised ethnicity and race categories to take applications before January 1, 2004. Some of these commenters stated that they wanted to program their systems to collect data using the revised categories in October 2003, because making changes to their data collection and processing systems after November 1, 2003, could result in system disruption and difficulty in generating year-end reports. These lenders stated that if they were not permitted to use the revised categories in the fall of 2003, they would prefer to continue to use the current categories through February 2004, and convert the data using the conversion rules provided by the Board.

Other lenders requested guidance that would allow them to report “NA” for ethnicity and race on applications received during the first quarter of 2004 on application forms that have not been updated to reflect the revised rules on collecting information on ethnicity and race. For example, a lender might receive an application by mail in early 2004 that had been mailed out to an applicant in 2003 using the current format for reporting race or national origin. In addition, some lenders noted that brokers might want to use up all of their old forms and thus might continue to use the current format even for applications received in 2004. These commenters suggested that the Board allow lenders to convert applications taken on the current form to the revised rules through April 1, 2004.

The comment is adopted as proposed. The Board believes that converting data collected under the current rules to the revised OMB standards is necessary to ensure the quality and utility of the data. At the request of commenters, the conversion rules are presented in tabular format in section V of this notice.

The rules for converting information on race and ethnicity apply only to applications received in 2003. In the case of an application provided to an applicant in 2003 that is not returned to the lender until 2004, the existing commentary provides that the lender may consider such an application as received in 2003 if the date shown on the application is in 2003. See 203.4(a)-1. Thus lenders may use the conversion rules provided in the final comment if an application is provided to an applicant in 2003 and is dated in 2003, but is received by the lender in 2004. The conversion rules may not be used, however, where lenders or brokers continue to use loan application forms with the current race format on or after January 1, 2004. Lenders and brokers are responsible for ensuring that applications are taken on the appropriate form.

Sex. A few commenters pointed out that under the current rules lenders must use code 4 (Not Applicable), where the loan is a purchased loan, there is no co-applicant, or the co-applicant is not a natural person. Under the revised rules, code 4 is reserved for applications in which the co-applicant is not a natural person or the information is not available on a purchased loan, and a new code 5 is to be used where there is no co-applicant. The final comment provides that for applications received before January 1, 2004, in which there is no co-applicant, code 4 may be used on the 2004 HMDA/LAR for sex.

The Board did not propose transition guidance relating to the requirement to report the rate spread between the APR on the loan and the yield on Treasury securities with a comparable maturity. The Board did solicit comment, however, on whether there might be less burdensome alternatives to requiring lenders to use the rate lock date for applications received before and closed on or after January 1, 2004—for example, allowing them to use the date the application was received, the date of consummation, or a date specified by the Board (such as January 1, 2004) that would not require lenders to look back to an earlier period to calculate the rate spread. The Board noted that if lenders used the date of application or consummation, lenders would not have to modify their systems because they already capture these dates for current reporting requirements.

Some industry commenters supported requiring lenders to use the rate lock date to calculate the rate spread. These commenters noted that using the date of application or consummation could distort the pricing data. Other industry commenters urged the Board to allow lenders to use the date of application or of consummation. A few commenters suggested that the Board require lenders to report the rate spread only if the rate lock occurred on or after January 1, 2004. Still other industry commenters said that the Board should require rate spread information only if the application was received on or after January 1, 2004, because of difficulties in collecting the rate lock date and training personnel before then.

Based on the comments and on the Board's analysis, the final comment provides that lenders need not report the rate spread for any loan in which the rate lock occurs before January 1, 2004. The Board recognizes that lenders may not be able to track and report rate lock dates accurately until the 2002 revisions take effect, in January 2004. Although use of the application or consummation date might reduce burden to some degree because lenders are currently responsible for collecting and reporting them, their use of these dates in the rate spread system nonetheless would require special programming. The comment provides examples to illustrate when lenders must calculate and report the rate spread for applications received before January 1, 2004.

The Board did not propose any transition guidance for reporting requirements relating to type of purchaser, HOEPA status, and lien status because these data items do not impose a significant burden on lenders to “look back” to applications received prior to 2004. The majority of comments supported the Board's view. The Board is adopting the comment as proposed, without any exceptions for type of purchaser, HOEPA status, and lien status.

The rules in the final comment for converting information on race and national origin collected under the current regulation to the revised categories for ethnicity and race under the 2002 revisions are provided in tabular format in response to commenters' requests.

Regulation CC establishes the maximum period a bank may wait between receiving a deposit and making the deposited funds available for withdrawal. 1

Generally, a bank must make funds available for withdrawal within one or two days of deposit if the funds are deposited by certain types of checks that have a relatively low risk of being returned and the deposit meets the other conditions described at § 229.10(c) of Regulation CC. 2 Items generally subject to next- or second-day availability include checks drawn on the U.S. Treasury; U.S. Postal Service money orders; checks drawn on a Federal Reserve Bank or a Federal Home Loan Bank; checks drawn by a state or unit of general local government; cashier's, certified, or teller's checks; and checks drawn on the same branch or another branch of the depositary bank if both branches are located within the same Federal Reserve check processing region. A depositary bank also must give next-day availability for up to the first $100 of any check or checks deposited on the same banking day that are not otherwise subject to the next-day availability rule.

For checks that are not subject to the next- or second-day availability rules discussed above, depositary banks generally must provide faster availability for funds deposited by a “local check” than by a “nonlocal check”. A check drawn on a bank is considered local if it is payable by or at a bank located in the same Federal Reserve check processing region as the depositary bank. A check drawn on a nonbank is considered local if it is payable through a bank located in the same Federal Reserve check processing region as the depositary bank. Otherwise, a check is nonlocal.

Appendix A to Regulation CC contains a routing number guide that assists banks in determining the maximum permissible hold periods for most deposited checks. 3 The appendix lists the 9-digit routing numbers for U.S. Treasury checks, postal money orders, and checks drawn on Federal Reserve Banks and Federal Home Loan Banks. Appendix A also lists each Federal Reserve check processing office and the first four digits of the routing numbers, known as the Federal Reserve routing symbol, of the banks that are served by that office. Banks whose Federal Reserve routing symbols are grouped under the same office are in the same check processing region and thus are local to one another.

Over the past few years, the Federal Reserve Banks and Federal Home Loan Banks have changed their check-related operations, including the routing numbers they use. The Board accordingly is updating appendix A to delete retired routing numbers and insert newly added ones.

With respect to the Federal Reserve Bank routing number list, the Board is deleting routing numbers 0112 0048 8 and 0214 0950 9; correcting the placement of two existing routing numbers, 0220 0026 6 and 0519 0002 3; and adding a new routing number, 0711 0711 0.

With respect to the Federal Home Loan Bank routing number list, the Board is deleting the following numbers: 0640 0091 0; 0654 0348 0; 0724 1338 2; 0820 0125 0; 1020 0603 8; 1030 0362 9; 1040 0019 7; 1130 1750 8; 1211 3994 4; and 1222 4014 6. In addition, the Board is adding the following numbers: 0430 1862 2 and 1240 0287 4.

The Board also has reorganized and clarified the existing introductory text of appendix A.

These amendments become effective July 28, 2003.

A Federal Reserve study released in 2002 found that the number of checks written in the United States had declined from approximately 50 billion annually in the mid-1990s to about 40 billion annually in 2002. Correspondingly, the number of checks processed by the Federal Reserve Banks has also declined in recent years. The Federal Reserve Banks have decided to reduce the number of locations at which they process checks in response to this changing trend in check usage and to position themselves more effectively to meet the cost recovery requirements of the Monetary Control Act of 1980. Thirteen Reserve Bank offices will no longer process checks, and the checks currently processed at those offices will be processed at other nearby offices, as follows:

Because this restructuring will reduce the number of check processing regions, some banks that now are nonlocal to one another will become local. As a result, the status of some nonlocal checks in the affected regions will change. Specifically, some checks that are drawn on and deposited at banks located in the affected regions that currently are nonlocal checks will become local checks subject to faster availability schedules. Banks in the affected regions therefore might need to realign their internal operating systems to reflect the restructuring. Depending on their funds availability practices, banks also might need to modify their funds availability schedules and related disclosures to reflect any improved availability of funds resulting from the restructuring. Section 229.18(e) of Regulation CC requires that banks notify account holders who are consumers within 30 days of implementing a change that improves the availability of funds.

The restructuring of Reserve Bank check processing operations will take place in several phases, beginning in the second half of 2003 and ending in late 2004. The Board will amend appendix A in connection with each phase of the restructuring to delete the name of the office(s) that will no longer process checks and transfer the affected Federal Reserve routing symbols to another check processing office. 5 The Board will announce each phase of the restructuring and the associated amendments to appendix A at least 60 days prior to the effective date of the amendment in order to give affected banks ample time to make processing changes, and, if necessary, amend their availability schedules and related disclosures and provide their customers with notice of any changes to their availability schedules.

Before Commissioners: Pat Wood, III, Chairman; William L. Massey, and Nora Mead Brownell.

1. The Federal Energy Regulatory Commission (Commission) is amending part 157, subpart F, of its regulations to enable natural gas interstate pipeline companies to replace mainline facilities using a route other than the existing right-of-way, and to commence construction without 45-day prior notice and without project cost constraints, when immediate action is required to restore service in an emergency due to a sudden unanticipated loss of natural gas or capacity for protection of life or health or for maintenance of physical property. In addition, the Commission is revising reporting requirements so that a natural gas company acting under part 157 in responding to an emergency would submit a report describing intended actions to the Commission in advance of commencing construction, rather than reporting actions taken under part 157 after the fact, as is currently the case. The Commission revises part 157 to state that the requirement to provide landowners with 30-day prior notice is met if all affected landowners grant easements. The Commission is also amending part 153 to specify that the regulatory revisions related to emergency reconstruction will apply to facilities subject to Section 3 of the Natural Gas Act (NGA). Finally, the Commission is amending part 375 of its regulations to delegate authority to waive certain landowner notice requirements and to make certain judgments in the field regarding the construction and operation of gas facilities. An important objective of the proposed rule is the reconciliation of the Commission's regulatory responsibilities under its enabling statutes and federal environmental and safety laws with the need to protect persons and property.

2. On January 17, 2003, the Commission issued a notice of proposed rulemaking (NOPR), 1 seeking comments on how it might facilitate the restoration of gas service in an emergency due to a sudden unanticipated loss of gas or capacity threatening loss of life, impairment of health, or damage to property. The NOPR was prompted, in part, by Commission and energy industry attention to operational safety concerns, in particular, the potential impacts of deliberate damage to energy facilities. On April 22, 2002, staff from the Commission and from the Department of Transportation Office of Pipeline Safety (OPS) jointly convened a technical conference to consider whether and how to clarify, expedite, and streamline permitting and approvals for interstate pipeline reconstruction following a sudden unanticipated service disruption. 2 Efforts to ensure the security of the nation's energy infrastructure have generally focused on maintaining the physical integrity of facilities and preparing to respond to accidents, such as excavation that breaches a buried pipe, natural disasters, such as earthquakes and landslides, and foreseeable equipment failure. The conference broadened this focus to consider how best to respond to damage due to a deliberate effort to disrupt the flow of natural gas.

3. At the conference, Commission and OPS staff provided an overview of current regulatory processes and presented examples of recent natural gas emergencies. Conference participants—representing federal, state, and local agencies, energy industry sectors, trade groups, and interested individuals—suggested various means to speed the reconstruction of interstate gas facilities, including: revising existing legislative mandates, revising Commission regulations, and enhancing coordination among federal, state, and local entities. A transcript of the conference and the comments subsequently submitted are contained in the record in Docket No. AD02-14-000. 3

4. In general, it appears the Commission's existing authorities and policies are sufficient, and sufficiently flexible, to enable pipelines to respond to emergencies in a timely manner. However, in view of the April 2002 conference, and comments in response to the January 2003 NOPR, the Commission has identified circumstances under which its present practices could constrain a pipeline from implementing a timely response. Accordingly, as discussed below, the Commission is amending its regulations to better enable pipelines to recover from an emergency interruption in service.

5. Timely comments in response to the NOPR were filed by the American Gas Association (AGA); Duke Energy Gas Transmission (Duke); INGAA; KM Pipelines;  4 KO Transmission Company (KO Transmission); MidAmerican Energy Company (MidAmerican); NiSource Pipelines (NiSource);  5 Northern Natural Gas Company (Northern Natural); the Process Gas Consumers Group (Process Gas Consumers); the Public Service Commission of the State of New York (New York PSC); and Williston Basin Interstate Pipeline Company (Williston Basin). Untimely comments were submitted by the United States Department of the Interior, Fish and Wildlife Service (FWS) and the Public Utilities Commission of Ohio (Ohio PUC), which we accept, as to do so will not delay, disrupt, or otherwise prejudice this proceeding.

6. In the NOPR, we requested comments on the adequacy of the Commission's existing authority to expedite the restoration of service following an emergency gas disruption, and whether the expansion of authority proposed would be sufficient to meet pipelines' emergency reconstruction requirements. In the NOPR, we described a situation where a pipeline could experience damage to its facilities, and then be unable to gain access to the site of the damage (for example, access may be obstructed in the case of a landslide, or restricted in the case of an investigation). In such circumstances, we seek to ensure that pipelines have authority adequate to be able to restore service rapidly. In particular, we question whether a traditional NGA Section 7(c) certificate application will prove practical, since even with accelerated processing of the application, the optimal time line to take action will inevitably be extended. An NGA Section 7(c)(1)(B) temporary certificate may be issued with dispatch, but may be inadequate if repairs require more than minor enlargements or extensions of existing facilities. Under § 2.55 of our regulations, a pipeline can replace or repair facilities, but only within the footprint of the existing facilities, and where costs are expected to exceed $7.5 million, 6 only after 45 days advance notice to the Commission. In view of these constraints, we have elected to expand the scope of construction currently allowed under part 157, subpart F, of our regulations.

7. Almost all interstate gas pipelines now hold part 157 blanket certificates that permit the automatic construction, operation, abandonment, replacement, and rearrangement of certain “eligible facilities.” To facilitate pipelines” capability to act expeditiously to respond to an emergency, 7 we propose to expand the scope of “eligible facilities” to include mainline facilities that require a new right-of-way, and system modifications such as adding compression, that could compensate for impaired gas flows. Further, for emergency reconstruction, we propose to lift the current $21 million project cost limit and forego the prescribed 45-day public notice requirement. 8 In addition to the 45-day public notice, a gas company acting under blanket authority is required to make a good faith effort to notify all affected landowners 30 days prior to commencing construction or at the time it initiates easement negotiations. We retain this landowner notification requirement, but as stated in the January 2003 NOPR, once a company has contacted landowners, we will consider a company request to waive the remainder of the 30-day landowner notice period. 9

8. The expanded reconstruction authority applies to activities required to restore service for protection of life or health or for maintenance of physical property in an emergency due to a sudden unanticipated loss of gas or capacity. INGAA and Duke are concerned that under this criteria, “eligible facilities” as defined under § 157.202 of the Commission's regulations would not include repairs or replacement to respond to damage that did impair a company's ability to meet contractual commitments, but that did not present a direct threat to life, health, or property.

9. NiSource objects to describing an emergency as a “sudden unanticipated” loss of gas or capacity, characterizing “sudden” as an unnecessary qualification. NiSource would curtail the definition of an emergency to an “unanticipated” loss of gas or capacity.

10. The Process Gas Consumers Group, representing industrial end users, believes that the economic harm a factory may incur due to an interruption in gas deliveries should be construed as property damage qualifying for reconstruction authorization under the emergency blanket regulations. To this end, the Process Gas Consumers Group endorses expanding § 157.205(a) and § 157.208 of our regulations to include reconstruction “activity required to restore service in an emergency due to a sudden unanticipated loss of natural gas supply or capacity in order, for example, to prevent loss of life, impairment of health, economic harm to end users, or damage to property.”

11. Restricting the expanded part 157 authority to emergencies that require an immediate response for protection of life or health or for maintenance of physical property is deliberate. Circumstances that frustrate a pipeline's capability to meet certain customer needs—but that do not otherwise pose a direct threat to life, health, or property—are most appropriately addressed, as has been the case until now, under the terms of a pipeline's existing tariff and our non-emergency rules and regulations. Rather than expanding the definition of emergency to include economic damages, as the Process Gas Consumers Group proposes, we suggest such damages, particularly business losses due to disrupted gas deliveries to end users, may be managed by being insured against, or by employing dual fuel capabilities, or by addressing parties' responsibilities in the terms of service. We seek to keep emergencies focused on threats to life, health, or property, and including economic damage in the definition of emergency risks is an inappropriate expansion of the new regulatory provisions, given that a reasonable argument might be made that any gas curtailment constitutes a threat to economic welfare. In view of this, we will not enlarge the definition of emergency to include economic damage.

12. To emphasize that an emergency be precipitated by events which a company could not be expected to predict or prepare for, we retain both “sudden” and “unanticipated.” We note this definition of emergency is consistent with that of § 284.262(2) of our regulations, which also defines an emergency as a “sudden unanticipated loss of natural gas supply or capacity.”

13. INGAA, Duke, and Williston Basin observe that the NOPR focuses on reconstruction that necessitates a pipeline's deviating from its existing right of way, and ask that in the final rule the Commission explicitly apply the expanded emergency blanket authority, i.e. , waiver of prior notice and lifting the project cost cap, to construction within the existing right of way. INGAA and Duke propose that the § 157.202(b)(2)(i) definition of “eligible facilities” read as follows:

14. The New York PSC observes that in addition to rebuilding to replace damaged facilities, it may be possible, and potentially more efficient, to restore essential service by making modifications to undamaged portions of a pipeline's system. To allow for such modifications, the New York PSC would expand “eligible facilities” to include construction intended to redirect gas flows on a pipeline's system.

15. To ensure that the expanded authority is employed prudently, FWS recommends that § 157.202(B)(2)(i) apply “only when the construction within the existing footprint may be prohibited due to natural disasters, or acts of national security.”

16. KM Pipelines state that from an operational standpoint, compressors and storage facilities are integral parts of mainline systems, and so argues that compressors and storage facilities should be explicitly included within the meaning of mainline facilities. Duke asks that the Commission clarify that the emergency blanket provisions will cover conventional storage facilities.

17. INGAA requests the Commission specify that when replacing damaged facilities, a pipeline need not duplicate the damaged facilities, but may make use of components of “substantially similar capacity.” INGAA points out that emergency repairs can be made most rapidly by using supplies readily available in inventory. INGAA therefore requests regulatory leeway to use substantially similar accessible supplies when duplicate replacement supplies are not readily available. INGAA observes that § 2.55(b)(ii) of the Commission's regulations already specifically accepts the substitution of approximately equivalent components.

18. Our aim is to enable a company to recover from an emergency as soon as possible, and we assume recovery will be quickest (and most cost effective) when a company can repair or replace damaged facilities within the original footprint, since such efforts can be expected to minimize the need for easements and environmental approvals. Thus, we expect that reconstruction within the right-of-way will, when possible, be preferred. However, although an existing right-of-way may remain accessible, we can envision circumstances where new construction along a new right-of-way could be the more rapid means to restore service. We therefore want to offer pipelines options when rebuilding, and for this reason, we will not adopt the FWS proposal that we permit pipelines to use the new blanket authorization to reconstruct on a new right-of-way only when the existing right-of-way is unavailable. We clarify that although the NOPR emphasized the applicability of expanded emergency blanket authority to reconstruct outside of an existing right-of-way, we also intend for emergency blanket authorization to apply to reconstruction within the existing right-of-way. Consequently, we find no need to alter the revised regulatory language as suggested by INGAA, Duke, and Williston Basin.

19. As proposed, we will add “the modification of facilities to rearrange gas flows or increase compression” to § 157.202(b)(2)(i), as we find this phrase better expresses our intent to make it possible for a damaged pipeline to rely on the new emergency blanket provisions to modify its system as needed to restore service. We are concerned that absent this additional description of potential authorized actions, the emergency blanket provisions could be construed as restricting a pipeline to either the repair or replication of damaged facilities, with the sole exception of rerouting a mainline. Such an interpretation could constrain a pipeline's emergency recovery efforts, thereby prolonging service shortfalls, and thereby limit the utility of the new blanket regulations and undermine our aim to speed recovery efforts. Thus, if a pipeline finds it is able to restore interrupted service faster by adding new facilities—such as compression at an undamaged site or equipment to enhance storage withdrawals—than by replacing or repairing damaged facilities, we want pipelines to have emergency blanket authority to add such facilities. Further, if a pipeline can safely adjust operating parameters or can rearrange facilities on its system in order to compensate for a service interruption, the emergency blanket regulations should permit such modifications. Accordingly, we will add “the modification of facilities to rearrange gas flows or increase compression” to those actions permitted under emergency blanket authority. This revision may be interpreted as encompassing the redirection of gas flows, as requested by the New York PSC.

20. We note that in an emergency, pipelines are to focus on the immediate restoration of services essential for protection of life or health or for maintenance of physical property; thus, “the modification of facilities” applies only those modifications devoted to this priority. In reviewing pipelines' advance notice of emergency reconstruction, we will consider whether the described activities are consistent with this priority.

21. INGAA and Duke propose to employ emergency authorization to restore pre-existing service. We stress that unless a company's inability to fulfill its service contracts presents a direct threat to life, health, or property, no emergency exists, and where no emergency exists, it would be inappropriate to invoke emergency authority. We reiterate our observation in the NOPR that this “enlargement in the scope of permissible actions under part 157, subpart F, is restricted to actions necessary to restore service after an interruption due to an emergency event,” and does not apply to “circumstances [that] would not qualify as an emergency.”  10 However, provided an incident causing an interruption in service qualifies as an emergency, we clarify that a company may rely on the expanded blanket emergency provisions to replace or rearrange facilities in order to reinstate service up to the level it previously provided.

22. We believe it is reasonable to permit a pipeline to employ the most readily available materials in an emergency. The public interest in restoring service should not wait on the delivery of an order for new materials that match the damaged facilities. Accordingly, we clarify that in an emergency a pipeline may use components of substantially similar capacity. The current regulations implicitly permit such substitutions. As INGAA comments, the ‘substantially similar capacity’ allowance is the § 2.55(b)(ii) standard.”  11 Section 157.202(b)(2)(i) of our regulations expands upon this, allowing “replacements that do not qualify under § 2.55(b) of this chapter because they will result in an incidental increase in the capacity of main line facilities.” Provided replacement facilities that differ from the original facilities result in no more than an incidental increase in capacity, we expect such replacements will be acceptable under the expanded emergency blanket certificate authorization. We note that the § 157.207 report of intended action under emergency blanket authority should serve, inter alia, to inform the Commission of circumstances that merit the use of replacement facilities that are not a one-to-one match for a system's existing facilities.

23. INGAA, Duke, and NiSource support the proposal to omit the § 157.203(a) 45-day public notice period for emergency reconstruction, and urge the Commission to similarly exempt pipelines from the § 157.203(d) 30-day landowner notice requirement. Noting the Commission's stated willingness to consider requests to waive the 30-day landowner notice, the parties nevertheless view this approach as uncertain and time consuming, and favor omitting the § 157.203(d) landowner notice. INGAA and Duke contend this notice is unnecessary, as it is duplicative of a pipeline's obligation to either obtain voluntary easements from landowners or obtain easements through condemnation proceedings.

24. Northern Natural believes that in an emergency that threatens life, health, or property, the public interest in prompt remedial action should outweigh the landowners' interest in notification. 12 Therefore, Northern Natural recommends that the Commission modify § 157.203(d)(3) to exclude landowner notice in an emergency; with emergency construction limited to the minimal disturbance needed to restore service and to landowners directly impacted. Alternatively, Northern Natural suggests that landowner notification and construction be allowed to take place concurrently.

25. Duke, Northern Natural, and KM Pipelines are concerned that efforts to negotiate in good faith with landowners to obtain easements prior to exercising eminent domain authority could delay reconstruction. Recognizing that the mechanics and pace of this judicial process are outside of the Commission's domain, Duke asks the Commission to “acknowledge * * * the need for and benefit of an expedited eminent domain process” in an emergency, so as to encourage courts to facilitate expedited entry onto lands and Congress to modify statutory limitations. Northern Natural similarly urges the Commission to coordinate regulatory and statutory changes with other agencies to expand powers of eminent domain and blanket waivers, and “employ its maximum allowable authority to expedite the process in an emergency.” KM Pipelines encourage the Commission to seek legislative revisions so that in an emergency, environmental statutes and related regulations may be waived to allow for immediate reconstruction. KM Pipelines propose that such revisions provide for the Commission to declare an emergency exists, after which pipelines will be able to obtain an expedited court condemnation order to gain access to land, with a separate determination on compensation to follow at a later date.

26. It is necessary to find the proper balance between facilitating the immediate restoration of service in an emergency, via a new right-of-way if necessary, and safeguarding the due process rights of affected landowners, but we believe eliminating landowner notice shifts the balance too far. The landowner notice requirements protect the public interest by ensuring that property rights are respected and that any necessary new easements adhere to applicable state procedures. 13 Thus, we will retain the § 157.203(d) requirement that a pipeline make a good faith effort to provide all affected landowners with 30-day notice. We note that regardless of the Commission's regulations, landowners must be contacted for the purpose of obtaining an easement, and this contact may serve as notice for the purpose of complying with § 157.203(d) of our regulations.

27. We suggest that the greater the magnitude and urgency of an emergency, the more persuasive pipelines may be in negotiating voluntary easements. Involuntary easements compelled through the exercise of the right of eminent domain are subject to state law, and we suggest that the nature of the emergency may influence the willingness of state authorities to intervene to expedite their procedures. In view of this, we are not willing to forego prior notice to landowners, as requested, in its entirety.

28. We nevertheless believe that modifications may be made to the landowner notice requirements to speed the process while retaining relevant landowner protections. Under § 157.203(d) of our current regulations, a landowner, once notified in accordance with § 157.6(d)(2) and § 157.203(d)(2) of our regulations, may waive the 30-day aspect of the prior notice requirement. We will expand this and revise § 157.203(d) to state that “For activity required to restore service in an emergency, the 30-day prior notice period is satisfied in the event a company obtains all necessary easements.” We believe that once a company has reached voluntary agreements with all landowners affected by a new right-of-way, there is no remaining landowner interest to be protected by awaiting the expiration of the remainder of the 30-day prior notice period. In addition, we will provide the Director of the Office of Energy Projects (OEP) with the authority to waive landowner notice requirements, as necessary or appropriate, by adding a new § 375.308(w)(5), to state that the OEP Director, or the Director's designee, has the delegated authority to take appropriate action on “Requests for waiver of the landowner notification requirements in § 157.203(d) of this chapter.”

29. We agree with those comments that stress the need for pipelines to be able to obtain new right-of-way to build around damaged portions of pipe. That said, as commenters observe, the mechanics and pace of the process of obtaining a new easement by right of eminent domain are beyond the scope of this Commission's jurisdiction. 14 Consequently, we are unable to commit to effecting changes in other agencies' regulations or our own statutory authority. We nevertheless can and do commit to working with local, state, and federal authorities to coordinate and expedite emergency reconstruction efforts.

30. In the NOPR, we noted that under the existing § 157.207 reporting requirements, companies submit a retrospective annual report describing the projects completed under blanket authority during the prior year. Because the expanded emergency blanket authority provisions omit the requirement that companies give 45-day prior notice for public comment on projects costing more than $7.5 million, we modified this section to require that companies intending to rely on emergency blanket authority submit an advance report to the Commission describing their preparations and plans before commencing reconstruction.

31. NiSource does not object to notifying the Commission prior to proceeding with emergency reconstruction activities, as long as the Commission acknowledges and accepts that the initial description of the problem and remedial plan may be inexact and subject to change in light of the incomplete information and urgency inherent in an emergency.

32. Northern Natural observes that § 260.9(b) allows companies to deliver notices of gas service disruptions to the Commission “by any electronic means” and asks that if the Commission retains an emergency advance report requirement, it should permit pipelines to deliver this report by electronic means. Further, Northern Natural seeks clarification that the advance report filing applies only to emergency activities under the proposed expanded blanket authority, and will not be interpreted to apply to activities that come under current no-notice blanket authority. Northern Natural worries that an emergency may disrupt communications between pipelines and governmental agencies.

33. We accept that in attempting to restore service in response to an emergency, a pipeline's preparation and planning will not be as thorough and predictable as would be the case in describing a proposed non-emergency construction project. Accordingly, we do not expect to hold a pipeline to the precise parameters set forth in the advance report describing its intended emergency reconstruction.

Further, while we will expect a pipeline to submit as complete and accurate a report as is practical, as stated in the NOPR, we recognize that it will not be possible “to supply all the information routinely set forth in a standard annual blanket report.” 15 It is in part in anticipation of inevitable infirmities in an advance report that we expect a company undertaking emergency reconstruction to consult with the Commission during reconstruction, and to that end, where necessary, the Commission will have a staff member present on site.

34. In response to Northern Natural, we observe that the existing § 260.9 requirement to report serious service interruptions occurring on a pipeline system is not affected by the new regulations set forth herein. We acknowledge the utility of allowing an advance report, described in the new § 157.207 general reporting requirements, to be filed by electronic means. Accordingly, we will provide an electronic filing option for these advance reports via the eFiling link on the Commission Web site at www.ferc.gov. Companies filing advance reports in accordance with the emergency blanket certificate provisions should select the filing type “Notice/Report of Intent to Use Emergency Procedures” from the eFiling System Filing Type Selection menu for Gas. If the report cannot be electronically filed due to file size or content restrictions ( e.g. , large maps) in the Commission's eFiling system, then the report may be submitted on CD ROM. We will post procedures for filing these advance reports on our Web site and update those procedures as the eFiling system expands to accommodate more complex filings.

35. We clarify that the requirement for advance notice only applies, as described in § 157.207, “[i]n the case of an emergency due to a sudden unanticipated loss of natural gas supply or capacity.” When a pipeline is acting under existing non-emergency blanket authority, the existing annual report requirement applies, as do the existing project cost limit and 45-day prior notice requirements. Pursuant to the existing blanket regulations, non-emergency projects under the current $7.5 million cost cap qualify for automatic no-notice authorization.

36. INGAA urges that the Commission work with other relevant governmental entities in order to coordinate the environmental review process to expedite permits and approvals needed to effect pipeline repairs. INGAA observes that for emergency actions subject to an EIS—but not for emergency actions subject to an EA—the Commission may consult with CEQ with the aim of developing alternative NEPA compliance arrangements. 16 To address this regulatory asymmetry, INGAA proposes that the Commission expressly waive its requirement that an EA be prepared in the case of an emergency.

37. NiSource suggests that “[t]he presence of a Commission Staff inspector (with stop work authority)” on site may prove “inconsistent with the emergency response action environment that will dominate the construction project.” 17 However, if the Commission chooses to send a representative to oversee emergency reconstruction, NiSource requests that the representative have broad authority to grant on-site variances, including variances of the Commission's environmental construction guidelines.

38. The Ohio PUC advocates deploying Commission staff to the affected site to coordinate with other federal, state, and local agencies to review routing and environmental mitigation. FWS recommends Commission staff be present and actively involved where reconstruction cuts a new right-of-way.

39. FWS asks that we clarify the applicability of the environmental compliance conditions of § 157.206(b) to actions proceeding under the expanded emergency blanket provisions. In addition, FWS proposes that the Commission introduce an emergency action plan into its certification of interstate pipeline facilities that would include the consideration of alternative right-of-way routes, surveyed in advance to determine areas of environmental sensitivity, and list contact numbers for the appropriate agencies' field offices.

40. Under § 380.4(a)(21) of our regulations, certain activities authorized under the part 157, subpart F, blanket certificate regulations are categorically excluded from environmental review. However, construction projects subject to prior notice under § 157.208(b) normally require an EA. 18 In addition, in all cases, projects constructed under blanket certificate authorization are subject to the environmental conditions of § 157.206(b). That section requires that the certificate holder adopt specific siting and maintenance provisions, that the project activities are consistent with all applicable environmental statutes, regulations, and compliance plans, and that the project “shall not have a significant adverse impact on a sensitive environmental area.”

41. Construction performed under the emergency rule adopted herein is subject to the environmental requirements of § 157.206(b). Among other things, these provisions require all authorized activities to be consistent with applicable environmental laws, impose limits on compressor noise, require companies to adopt the environmental mitigation conditions set out in § 380.15 of the Commission's regulations, and prohibit any activity that would have an adverse effect on a sensitive environmental area. To the extent that a company cannot comply with the § 157.206(b) requirements, the company cannot rely on blanket certificate authority to complete the project, and would have to seek separate authorization. In addition, as provided in the new § 385.308(x)(7) discussed below, the regulations established herein specifically delegate to the OEP Director the authority to ensure the protection of environmental resources during the course of construction. This includes authority to employ staff with stop work authority to monitor construction activities. Under all of these circumstances, we find that a project undertaken in accordance with these expanded emergency blanket regulations, including the specified environmental limitations, will not constitute a major federal action significantly affecting the quality of the human environment and will not require a separate EA prior to construction.

42. We do not share NiSource's concern that having Commission Staff on site might impede emergency reconstruction efforts. To the contrary, we expect the presence of Commission Staff with authority to ensure compliance with environmental mitigation measures, including the authority to grant on-site variances to enable a company to adopt alternative means to meet environmental requirements, will speed reconstruction efforts. Accordingly, we will amend our § 375.308 regulations to specify that a staff member designated by the OEP Director, present on the emergency construction site as necessary or appropriate, shall have delegated authority sufficient to ensure environmental protection. Specifically, we will add a new § 375.308(x)(7), to state that the OEP Director, or the Director's designee, has the delegated authority to “Take whatever steps are necessary to ensure the protection of all environmental resources during the construction or operation of natural gas facilities, including authority to design and implement additional or alternative measures and stop work authority.”

43. Recognizing that recovery from a gas emergency will call for actions and authorizations by entities other than this Commission, comments plead for a plan for inter-governmental interaction. The nature of an emergency as a sudden unanticipated event makes advance identification of the relevant authorities that will need to be involved in responding to an emergency, and the role each will play, impractical. Nevertheless, we can name those regional entities that are most likely to be involved in recovery efforts, and as a first step to facilitate communication and coordination, we will make contact information for these entities available via our Web site. 19

44. FWS requests clarification with respect to § 157.206 of our regulations. As stated in the NOPR, the applicable conditions set forth in § 157.206(b) describe environmental requirements that must be satisfied as a prerequisite to construction under both the existing blanket authority and the expanded emergency blanket authority. FWS suggests that the Commission's certification authorization could incorporate an emergency action plan that would include surveying alternative routings. To a certain extent, we already do so in our NEPA consideration of alternatives to a proposed project. We agree with the principle that it is prudent to be prepared; however, since there is no way to predict if, when, or where damage might occur along the vast array of interstate gas facilities, we find it impractical to attempt to undertake an environmental inventory of possible alternative routing in advance of an actual incident. However, we agree with FWS that reconstruction efforts can be expedited by having relevant entities' contact information readily available, and to this end, we will compile, post, and update such information on our Web site.

45. As proposed, under the expanded emergency blanket authority, a pipeline can invoke the expanded blanket authority, inform the Commission of its intended emergency reconstruction activities, and unless the Commission objects, go forward. In the NOPR we asked whether affirmative Commission authorization or a short review period ( e.g. , three days) should be required before a pipeline would be permitted to act under emergency blanket authority.

46. INGAA, Duke, Northern Natural, KM Pipelines, Williston Basin, and KO Transmission state that to be able to respond as rapidly a possible in an emergency, blanket authorization for construction outside of an existing right-of-way should be self-implementing. These parties see no need for the Commission to first verify that an emergency exists, and then approve a pipeline's proposed emergency response, before permitting a pipeline to act.

47. INGAA believes that there is no cause for the Commission to assess a pipeline's reconstruction proposal for a period of time before breaking ground, because the Commission may rely on a representative on site to oversee repairs. Williston Basin agrees, and adds that the on-site Commission representative, in conjunction with the advance report describing emergency activities, should provide the Commission with adequate information and oversight.

48. Instead of granting pipelines self-implementing authority to undertake emergency repairs outside an existing right-of-way, FWS and the Ohio PUC propose the Commission should first declare that an emergency requiring immediate action exists, with the Commission's declaration serving as the trigger and authorization for emergency reconstruction activities. FWS recommends that the Commission have five calendar days from receiving notice of an emergency interruption in service to decide if circumstances merit rebuilding along a new right-of-way.

49. KO Transmission recommends allowing pipelines to commence reconstruction prior to contacting the Commission. 20 If an emergency incident occurs when Commission offices are closed, KM Pipelines propose permitting a pipeline to go forward with construction, with a report describing its remedial action to be submitted when Commission offices reopen. Alternatively, KN Pipelines suggest the Commission provide for some means of filing a report on emergency reconstruction when its offices are closed.

50. Instead of submitting a prospective plan of reconstruction to the Commission, the Process Gas Consumers Group suggests the Commission designate a contact person with the authority to immediately approve or disapprove emergency reconstruction activities. In the event of disapproval, the company could then submit its plan to the Commission, with the Commission taking up to three days to review the plan and the rationale for initial disapproval by the designated staff member.

51. NiSource does not object, in principle, to obtaining Commission confirmation that an emergency exists, as long as doing so does not delay the pipeline's response. To this end, NiSource suggests the Commission create a “rapid response” staff, capable of confirming that an emergency exists, assisting in formulating a plan to reconstitute service, and providing waivers as warranted—all within a 24-to 36-hour time frame. NiSource contends that involving the Commission in this manner could preclude after-the-fact challenges to the pipeline's emergency actions.

52. MidAmerican and the New York PSC endorse the proposal for prior notice to the Commission. The New York PSC believes it is prudent for the Commission to verify that the circumstances in fact constitute an actual emergency, and to assess the scope and impact of the proposed response. MidAmerican is concerned that if no-notice self-implementation is permitted, pipelines might take the opportunity to upgrade, rather than merely replace or repair, their damaged facilities. MidAmerican adds that in view of the public interest in a rapid restoration of interrupted service, in no circumstances should the Commission's review of a pipeline's advance report filing take more than three days.

53. In view of the comments, we will limit the revisions to our blanket certificate regulations to those proposed in the NOPR, and not require either Commission affirmation that emergency conditions exist or a time-out interval during which we review a pipeline's proposed emergency response. In effect, we will allow pipelines self-implementing authority to act to immediately reconstitute service for the protection of life or health or for maintenance of physical property in an emergency due to a sudden unanticipated loss of natural gas or capacity. We retain the requirement that a pipeline submit an advance report of intended emergency reconstruction activities. In part, advance notice in an emergency serves the same purpose as the public notice requirement does for construction under a blanket certificate in a non-emergency in that it enables the Commission to confirm that the planned activities are consistent with environmental, safety, and land acquisition requirements. In addition, the Commission can consider whether the planned activities are narrowly tailored to restoring service as soon as possible and ensure that reconstruction will not include any system modifications that are not essential to alleviate threats to life, health, or property. Once an advance report is submitted, a company may proceed with its emergency reconstruction activities. Our consideration of the company's notice of planned reconstruction, and identification of any necessary modifications, will proceed concurrently with reconstruction activities.

54. In an emergency, in the interests of safety and environmental protection, a company acts immediately to limit damage and stabilize its system, and the new advance report provision is unrelated to actions taken in the context of this initial emergency response. The new advance report provision only comes into play after a company has isolated damaged facilities, assessed the status of its system, and formed a plan for recovery. Because currently effective provisions already authorize companies to act in an emergency and are effectively self-implementing, asking a company to describe how it intends to restore interrupted service in no way inhibits companies' existing capability (and obligation) to respond promptly to threats to the integrity of their facilities. 21 We have yet to encounter a situation whereby a company is prevented from immediately undertaking essential action in response to an emergency because Commission offices are closed. Hence, we do not anticipate a need to provide a means to present an advance report of planned reconstruction during non-business hours. However, if we find a delay in communicating with the Commission has inhibited urgently needed action, whether it be action pursuant to this expanded emergency blanket authority or in another time-critical context, we will seek a means to remedy any such delay and can do so in a way that supplements this rule.

55. INGAA and Duke propose the Commission modify part 153 to specifically apply the emergency reconstruction provisions to import, export, and LNG terminal facilities. INGAA explains that because these facilities are subject exclusively to NGA Section 3, and not NGA Section 7, such facilities would be unaffected by the proposed expansion of the part 157 blanket certificate regulations.

56. MidAmerican would have the Commission expand the scope of the proposed rule to include not only authority for a pipeline to rebuild its own damaged facilities, but also for a damaged pipeline to make use of undamaged (or less damaged) facilities of another pipeline in the same region, or where more efficient in terms of time and cost, undertake new construction on another pipeline system's facilities to provide additional capacity to meet its own customer needs.

57. We strive to respond with dispatch when any portion of the energy infrastructure is damaged, including facilities subject exclusively to NGA Section 3. We have adopted and applied certain NGA Section 7 conditions governing construction, operation, and rates to ensure that NGA Section 3 facilities are in the public interest, and we will do so in this case to enable timely repairs in the event of damage to such facilities. 22 To this end, we add § 153.13, to state that “The provisions of subpart F of part 157 of this chapter that permit reconstruction for the purpose of immediately restoring interrupted service for the protection of life or health or for maintenance of physical property in an emergency due to a sudden unanticipated loss of gas supply or capacity are applicable to facilities subject to Section 3 of the Natural Gas Act.”

58. We are not persuaded that there is a need for the Commission to coordinate multiple pipelines' cooperative response to an emergency, as MidAmerican proposes. We expect that the existing part 284, subpart I, regulations governing emergency gas sale, transportation, and exchange transactions, are adequate to enable one pipeline to rely on another to assist to respond to an emergency gas shortfall. 23

59. In the NOPR, we asked if expanded emergency blanket authority should be restricted, and apply only in response to emergencies due to natural disasters or deliberate damage. INGAA, AGA, Duke, Northern Natural, Process Gas Consumers Group, Shell Gas Transmission, NiSource, Williston Basin, the New York PSC, and KO Transmission maintain that regardless of the cause of a sudden unanticipated loss of gas or capacity, the effect is the same, namely, an urgent need to restore service. Accordingly, they ask that the Commission clarify that the proposed revisions will apply regardless of whether an emergency is the result of a natural disaster, equipment failure, human error, accident, or deliberate damage.

60. MidAmerican would restrict the applicability of the expanded blanket authority to “an emergency situation or act of deliberate damage.” For reconstruction requiring a new right-of-way, FWS would restrict expanded blanket authority specifically to natural disasters and acts of deliberate damage.

61. Comments convince us that it is appropriate to focus not on cause, but on effect. Consequently, we will not restrict the expanded blanket authority to emergencies attributable to deliberate damage. Besides, in the aftermath of an incident that interrupts service, it could prove counterproductive to have to first establish, for example, whether it was a meteor or a missile that breached a gas line. Thus, regardless of the reason, in an emergency due to a sudden unanticipated loss of gas or capacity, when immediate action is required for the protection of life or health or for maintenance of physical property, the new emergency blanket regulations will apply.

62. The Office of Management and Budget (OMB) regulations require that OMB approve certain information collection requirements imposed by agency rule. 24 This rule will not impact information collection. Accordingly, there is no cause to submit this rule to OMB for review under section 3507(d) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d).

63. The Commission is required to prepare an EA or EIS for any action that may have a significant adverse effect on the human environment. 25 The Commission has categorically excluded certain actions from these requirements as not having a significant effect on the human environment. 26 The actions herein fall within categorical exclusions in the Commission's regulations for rules that are clarifying, corrective, or procedural, for information gathering, analysis, and dissemination, and for sales, exchange, and transportation of natural gas that requires no construction of facilities. 27 Therefore, an environmental assessment is unnecessary and has not been prepared in this rulemaking.

64. The Regulatory Flexibility Act of 1980 (RFA)  28 requires agencies to prepare certain statements, descriptions, and analyses of proposed rules that will have significant economic impact on a substantial number of small entities. Agencies are not required to make such an analysis if a rule would not have such an effect. The Commission does not believe that this rule would have such an effect on small business entities, since the amendments to our regulations apply only to interstate pipelines, most of which are not small businesses. Accordingly, pursuant to section 605(b) of the RFA, the Commission certifies that this rule will not have a significant adverse impact on a substantial number of small entities.

65. In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( http://www.ferc.gov ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

66. From FERC's Home Page on the Internet, this information is available in the Federal Energy Regulatory Records Information System (FERRIS). The full text of this document is available on FERRIS in PDF and WordPerfect format for viewing, printing, and/or downloading. To access this document in FERRIS, type the docket number excluding the last three digits of this document in the docket number field.

67. User assistance is available for FERRIS and the FERC Web site during normal business hours by contacting FERC Online Support by e-mail at FERCOnlineSupport@ferc.gov or by telephone at 866-208-3676 (toll free) or TTY at 202-502-8659.

68. These regulations are effective July 14, 2003.

69. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B) and 553(d)(3), the Coast Guard finds that good cause exists for not publishing a NPRM and for making this rule effective less than 30 days after publication in the Federal Register . Because of the danger posed by low flying aircraft performing precision maneuvers and aerial stunts, special local regulations are necessary to provide for the safety of event participants, spectator craft and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event. The event will begin on May 23, 2003. There is not sufficient time to allow for a notice and comment period prior to the event. However, advance notifications will be made via the Local Notice to Mariners, marine information broadcasts, and area newspapers.

From May 23, through May 25, 2003, U. S. Naval Air Station Patuxent River will conduct a low-flying, high-speed aerial demonstration above a portion of the lower Patuxent River, between Fishing Point and the base of the breakwall marking the entrance to the East Seaplane Basin at the Naval Air Warfare Center Patuxent River. A fleet of spectator vessels is expected to gather near the event site to view the aerial demonstration. To provide for the safety of participants, spectators and other transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during the aerial demonstration.

The Coast Guard is establishing temporary special local regulations on specified waters of the lower Patuxent River between Fishing Point and the base of the breakwall marking the entrance to the East Seaplane Basin at the Naval Air Warfare Center Patuxent River. The regulated area is approximately 850 yards long and 700 yards wide. The temporary special local regulations will be in effect from 6 p.m. on May 23 until 5 p.m. on May 25, 2003. The effect will be to restrict general navigation in the regulated area during the event. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. The Patrol Commander will notify the public of specific enforcement times by Marine Radio Safety Broadcast. These regulations are needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 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 Homeland Security (DHS).

We expect the economic impact of this temporary final rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

Although this regulation prevents traffic from transiting a portion of the lower Patuxent River during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 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. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in the effected portions of the lower Patuxent River during the event.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only a short period, from 6 p.m. on May 23 to 5 pm. on May 25, 2003. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule will have a significant economic impact on it, please submit a comment ( see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule will economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this temporary rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the address listed under ADDRESSES.

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 will not create an environmental risk to health or risk to safety that might 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 and 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.

To help the Coast Guard establish regular and meaningful consultation and collaboration with Indian and Alaskan Native tribes, we published a notice in the Federal Register (66 FR 36361, July 11, 2001) requesting comments on how to best carry out the Order. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

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 analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine parade permit are specifically excluded from further analysis and documentation under those sections. An “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. In keeping with the requirements of 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this regulation effective less than 30 days after publication in the Federal Register . The precise location of the event necessitating promulgation of this safety zone and other logistical details surrounding the event were not finalized until a date fewer than 30 days prior to the event. Delaying the effective date of this rule would be contrary to the public interest because doing such would prevent the Coast Guard from maintaining the safety of the participants of the event and users of the waterway.

The Coast Guard is establishing a temporary safety zone on the navigable waters of the Colorado River in Laughlin, Nevada in support of the marine event Laughlin River Days. The marine event Laughlin River Days involves vessels racing at high speeds on an established course on the Colorado River in Laughlin, NV. This temporary safety zone is necessary to provide for the safety of the participants and spectators of this event, the participating vessels, and to protect other users of this waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative.

This temporary safety zone is necessary to provide for the safety of the participants, spectators, and sponsor vessels of the Laughlin River Days boat race. This temporary safety zone is also necessary to protect other vessels and users of the waterway.

This temporary safety zone consists of the navigable waters of the Colorado River between Davis Dam and the Laughlin Bridge. The limits of this safety zone are as follows: from that portion of the Colorado River, starting at Davis Dam, mile marker 276, to the Laughlin Bridge, mile marker 274.1.

Persons and vessels will be prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative.

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 Homeland Security (DHS).

Due to the temporary safety zone's short duration of two days, its limited scope of implementation, and because vessels will have an opportunity to request authorization to transit, the Coast Guard expects the economic impact of this rule to be so minimal that full regulatory evaluation under paragraph 10(e) of the regulatory policies and procedures of the DHS is unnecessary.

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.

For the same reasons set forth in the above Regulatory Evaluation, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule is not expected to have a significant economic impact on any substantial number of entities, regardless of size.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), the Coast Guard wants 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 your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact Lieutenant Commander Rick Sorrell, U.S. Coast Guard Marine Safety Office San Diego at (619) 683-6495.

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 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. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation.

Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

On February 14, 2003, we published a notice of proposed rulemaking (NPRM) entitled Safety Zone Regulation; Fort Vancouver Fireworks Display, Columbia River, Washington in the Federal Register (68 FR 7471). We received no letters commenting on the proposed rule. No public hearing was requested, and none was held.

The Coast Guard is establishing a temporary safety zone to allow a safe fireworks display. This event may result in a number of vessels congregating near the fireworks launching barge. The safety zone is needed to protect watercraft and their occupants from safety hazards associated with the fireworks display.

No comments were received from the public regarding this proposed rule.

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 Homeland Security (DHS). The Coast Guard expects the economic impact of this proposal to be so minimal that a full regulatory evaluation under the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the fact that the regulated area established by the proposed regulation will encompass less than one mile of the Columbia River for a period of only one and a half hours at night when vessel traffic is low.

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.

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit a portion of the Columbia River from 9:30 p.m. to 11 p.m. every July 4. This safety zone will not have significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only one and a half hours in the evening when vessel traffic is low. Traffic will be allowed to pass through the zone with the permission of the Captain of the Port or his designated representatives on scene, if safe to do so. Because the impacts of this proposal are expected to be so minimal, the Coast Guard certifies under 5 U.S.C. 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601-612) that this final 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 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Request for comments and assistance was published in the notice of proposed rulemaking for 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. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES.

On April 14, 2003, we published a direct final rule (68 FR 17990) and a parallel proposal (68 FR 18003) amending the standards of performance for stationary gas turbines (40 CFR part 60, subpart GG). The amendments codified several alternative testing and monitoring procedures that have routinely been approved by EPA. The amendments also reflected changes in emission control technologies and turbine design since the original promulgation of the rule on September 10, 1979.

We stated in the preamble to the direct final rule and parallel proposal that if we received significant material adverse comment on one or more distinct provisions of the direct final rule, we would publish a timely withdrawal of those distinct provisions in the Federal Register . The direct final rule stated that the deadline for submitting public comments was May 14, 2003, and that the effective date of the provisions would be May 29, 2003. The proposal also stated that if a public hearing was requested by April 24, 2003, the hearing would be held on May 14, 2003, at the New EPA Facility Complex in Research Triangle Park, North Carolina, at 10 a.m., and that the comment period would be extended until 30 days after the date of the public hearing.

In a proposed rule published elsewhere in this issue, EPA gives notice that since a public hearing was requested, the comment period has been extended until June 13, 2003, which clearly falls after what would have been the effective date of the direct final rule. We have decided to withdraw the entire direct final rule to avoid allowing the direct final rule to become effective before all public comments have been received. The EPA will promulgate a final rule in the near future that considers all of the comments received and any material testimony presented at the public hearing.

Accordingly, the entire direct final rule is withdrawn as of May 28, 2003. We will take final action on the proposed rule after considering the comments received. We will not institute a second comment period on this action.

This SUPPLEMENTARY INFORMATION is organized as follows:

The Environmental Protection Agency (EPA) first promulgated standards to regulate asbestos emissions on April 6, 1973 ( see 38 FR 8826), and added requirements for the control of asbestos emissions at inactive waste disposal sites on October 14, 1975 ( see 40 FR 48299). These standards have since been amended several times and re-codified in 40 CFR part 61, subpart M, “National Emission Standard for Asbestos” (Asbestos NESHAP). On June 28, 2002, NH DES submitted a partial rule substitution request to implement and enforce its regulation entitled “Management and Control of Asbestos Disposal Sites Not Operated After July 9, 1981” in lieu of some sections of the Asbestos NESHAP rule as they apply to certain inactive waste disposal sites. NH DES's request for approval was submitted pursuant to the provisions of 40 CFR part 63, subpart E and was found to be complete on July 30, 2002.

Under CAA section 112(l), EPA may approve State or local rules or programs to be implemented and enforced in place of certain otherwise applicable Federal rules, emissions standards, or requirements, when the State or local rules are determined to be no less stringent than the corresponding Federal rules or requirements. The Federal regulations governing EPA's approval of State and local rules or programs under section 112(l) are located at 40 CFR part 63, subpart E ( see 58 FR 62262, November 26, 1993, as amended at 65 FR 55810, September 14, 2000). Under these regulations, a State air pollution control agency has the option to request EPA's approval to substitute a State rule for the applicable section 112 Federal rule (National Emission Standard for Hazardous Air Pollutants (NESHAP)). Upon approval, the State agency is given the authority to implement and enforce its rule in place of the NESHAP.

Section 112(l)(5) of the Act requires that a State's NESHAP program contain adequate authorities to assure compliance with each applicable Federal requirement, adequate resources for implementation, and an expeditious compliance schedule. These are also requirements for an adequate operating permits program under 40 CFR part 70. On September 24, 2001, EPA promulgated full approval of the State's operating permits program as administered by NH DES ( see 66 FR 48806). In addition, on May 16, 2001, EPA provided “up-front” approval of NH DES's request to implement and enforce alternative requirements in the form of title V permit terms and conditions for subpart S, “National Emission Standards for Hazardous Air Pollutants from the Pulp and Paper Industry” (Pulp and Paper MACT I), and subpart MM, “National Emission Standards for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite and Stand-Alone Semichemical Pulp Mills” (Pulp and Paper MACT II) ( see 66 FR 27032). Under 40 CFR 63.91(d)(2), once a State has satisfied up-front approval criteria, it needs only to reference the previous demonstration and reaffirm that it still meets the criteria for any subsequent submittals. NH DES has affirmed that it still meets the up-front approval criteria.

Additionally, the “rule substitution” option requires EPA to “make a detailed and thorough evaluation of the State's submittal to ensure that it meets the stringency and other requirements” of 40 CFR 63.93 ( see 58 FR 62274). A rule will be approved if EPA finds: (1) The State or local rules are ‘no less stringent” than the corresponding Federal regulations, (2) the State or local government has adequate authorities to implement and enforce the rules, and (3) the schedule for implementation and compliance is “no less stringent” than the deadlines established in the otherwise applicable Federal rule. See 40 CFR 63.93(b). After reviewing NH DES's partial rule substitution request and equivalency demonstration for the Asbestos NESHAP as it applies to certain inactive waste disposal sites, EPA has determined this request meets all the requirements necessary for approval under CAA section 112(l) and 40 CFR 63.91 and 63.93.

In New Hampshire, virtually all known inactive waste disposal sites not operated after July 9, 1981, are concentrated in two neighboring communities, Nashua and Hudson. Due to dumping practices by a former asbestos manufacturing plant, over 250 sites are known to exist in these two areas on properties that are actively in use for residential, commercial, industrial, recreational and public purposes. The asbestos manufacturing plant operated in Nashua, and until the late 1970's disposed of its asbestos containing waste by delivering it to the property owners for use as fill ( i.e., in low-lying areas). The material exists in and around schoolyards, roadways, parking lots, and shopping centers as well as within wooded areas, along riverbanks, and within conservation areas.

The requirements of 40 CFR 61.151, the portion of the Asbestos NESHAP that applies to inactive waste disposal sites, were established with traditional industrial/commercial dumpsites in mind, rather than dumpsites spread throughout a developed and active community setting. Consequently, certain aspects of § 61.151 are not well suited for inactive waste disposal sites not operated after July 9, 1981 in New Hampshire.

For example, § 61.151 of the Asbestos NESHAP requires unfenced/non-posted sites to be covered with a minimum of six inches of soil if vegetated or a minimum of 24 inches of soil if not vegetated. If the site is not fenced and posted, other viable capping materials can be used but only with EPA approval pursuant to 40 CFR 61.151(c). This means that neither asphalt nor concrete can be used as a surface treatment without EPA approval. In these communities, asbestos waste is currently buried beneath parking lots, driveways, and sidewalks. NHDES is substituting performance based specifications for the “one-size-fits-all” cover specifications in 40 CFR 61.151.

As another example, 40 CFR 61.151(d) requires the owner/operator of an inactive waste disposal site to supply notice at least 45 days in advance of excavating or disturbing any asbestos-containing waste at the site. Due to the built-up nature of these inactive waste disposal sites, the need to disturb asbestos on short notice is a common occurrence and needs to be addressed. For instance, asbestos waste often must be disturbed to replace broken water lines as well as to repair or replace cover materials exposed due to storm water runoff. NHDES's proposed substitute rules reduce the length of the notice period but also require all persons who disturb asbestos waste to be qualified and to employ specific safe work practices and engineering controls.

In addition, the general provisions of 40 CFR part 61, subpart A generally apply to new stationary sources that are not yet constructed or to existing stationary sources that are actively operating. Inactive waste disposal sites are already constructed and are no longer operating or allowed to emit pollutants. Therefore, NHDES is proposing to substitute general requirements that are more relevant to inactive waste disposal sites. For example, the alternative rules address site monitoring, maintenance, and reporting requirements in a manner appropriate to closed nonoperating sources that by their nature cannot be constructed or modified to increase their emissions.

NH DES is seeking partial rule substitution because its alternative rules apply only to a subset of the inactive waste disposal sites subject to 40 CFR 61.151, namely those inactive waste disposal sites not operating after July 9, 1981.

On October 2, 1996, EPA approved New Hampshire's program under section 112(l)(5) and 40 CFR 63.91 for receiving delegation of section 112 standards that are unchanged from Federal standards as promulgated. This delegation mechanism only applied to part 70 sources ( see 61 FR 51370). On May 9, 2002, the NH DES submitted a request to EPA to receive straight delegation of authority to implement and enforce NESHAPs and New Source Performance Standards (NSPSs) for both major and area sources under a new delegation mechanism. NH DES sought to take delegation of these standards by incorporating the standards into NH DES's regulations. On September 19, 2002, EPA approved this delegation mechanism (see 67 FR 59001). Among other standards, NH DES incorporated by reference the Asbestos NESHAP, with the exception of 40 CFR 61.151, standard for inactive waste disposal sites for asbestos mills and manufacturing and fabricating operations.

NH DES did not request straight delegation of § 61.151 because it had submitted a partial rule substitution pursuant to 40 CFR 63.93 for a portion of that rule. NH DES's request for rule substitution applies only to those inactive waste disposal sites not operating after July 9, 1981 which are subject to 40 CFR 61.151 ( i.e., sites operated by certain asbestos mills, manufacturers, and fabricating facilities). NH DES's request seeks no change in delegation relative to inactive asbestos waste disposal sites operating after July 9, 1981 ( i.e., NH DES will continue to regulate such facilities according to § 61.151 standards).

EPA views the approval of NH DES's request to use its regulation for inactive waste disposal sites as a partial rule substitute for applicable requirements in the Asbestos NESHAP as a noncontroversial action since the State program is in operation and is no less stringent than the Asbestos NESHAP. EPA anticipates no adverse comments. Therefore, EPA is publishing this direct final rule without prior proposal. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal for this action should relevant adverse comments be filed. This action will be effective July 28, 2003, without further notice, unless EPA receives relevant adverse comments by June 27, 2003.

If EPA receives such comments, then it will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this rule. Any parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective July 28, 2003, and no further action will be taken on the proposed rule.

After reviewing the request for approval of the NH DES's Administrative Rules for Management and Control of Asbestos Disposal Sites not operated after July 9, 1981, EPA has determined that this request meets all of the requirements necessary to qualify for partial rule substitution approval under CAA section 112(l) and 40 CFR 63.91 and 63.93. EPA has determined that NH DES's asbestos rule is equivalent to or not less stringent than the Federal Asbestos NESHAP. Therefore, EPA hereby approves NH DES's rule to be used in place of the Federal Asbestos NESHAP, as it applies to those inactive waste disposal sites not operating after July 9, 1981, that are subject to 40 CFR 61.151. As of the effective date of this action, NH DES's asbestos rule is enforceable by the EPA and citizens under the CAA. Although NH DES has primary implementation and enforcement responsibility, EPA retains the right, pursuant to CAA section 112(l)(7), to enforce any applicable emission standard or requirement under CAA section 112.

The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.” This rule is not subject to Executive Order 13045, entitled, “Protection of Children from Environmental Health Risks and Safety Risks,” because it is not an “economically significant” action under Executive Order 12866.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

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.

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et. seq. generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental entities with jurisdiction over populations of less than 50,000. This final rule will not have a significant impact on a substantial number of small entities because approvals under 40 CFR 63.93 do not create any new requirements, but simply allows the State to implement and enforce equivalent requirements in place of the Federal requirements that EPA is already imposing. Therefore, because this approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

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

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector.

This Federal action allows New Hampshire to implement equivalent alternative requirements to replace pre-existing requirements under Federal law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

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 final 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. This action simply allows New Hampshire to implement equivalent alternative requirements to replace a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, Executive Order 13132 does 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 Federal action allows the State of New Hampshire to implement an equivalent regulation to replace pre-existing requirements under Federal law and does not have tribal implications. Thus, Executive Order 13175 does not apply to this rule.

Protection of Children From Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

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.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 28, 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 modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.

The modifications are made pursuant to Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq ., and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by the other Federal, State, or regional entities.

The changes in are in accordance with 44 CFR 65.4.

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

Regulatory Flexibility Act. The Mitigation Division Director for the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S, C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This interim 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.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

This is a summary of the Commission's Third Order on Reconsideration in CC Docket Nos. 00-256 and 96-45 released on May 8, 2003. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554.

1. The Commission addresses a Petition for Reconsideration of the MAG Order, 66 FR 59719, November 30, 2001, filed by the National Exchange Carrier Association (NECA), the National Rural Telecom Association, the Organization for the Promotion and Advancement of Small Telecommunications Companies, and the United States Telecom Association (collectively, the Joint Petitioners). The Joint Petitioners raise issues concerning the filing requirements for Interstate Common Line Support (ICLS), the new universal service support mechanism established in the MAG Order. In response to the concerns raised by the Joint Petitioners, the Commission grants their request to amend § 54.903(a)(4) of our rules to move the deadline for filing actual common line cost and revenue data from July 31st to December 31st of each year. The Commission also amends § 54.903(a)(3) of our rules to permit rate-of-return carriers to file updates of projected common line cost and revenue data on June 30th of each year. As discussed, these changes will promote more accurate and efficient distribution of ICLS while minimizing administrative burdens on rate-of-return carriers. Additionally, the Commission adopts several minor amendments to §§ 54.307, 54.902, and 54.903 of our rules in response to issues raised by the Joint Petitioners and on our own motion.

2. Filing of Actual Cost and Revenue Data. On reconsideration, the Commission grants the Joint Petitioners' request to change the filing date for actual cost and revenue data for the prior calendar year from July 31st to December 31st. The Commission finds that changing the filing date for actual cost and revenue data to December 31st will better serve the Commission's goals of minimizing administrative burdens on carriers and promoting accurate and efficient distribution of ICLS. A December 31st filing date will reduce administrative costs. The Joint Petitioners contend that, based on NECA's experience with the common line pooling process, many small carriers would have difficulty completing accurate cost studies by July 31st, whereas carriers have historically complied with a December 31st deadline. Moving the filing deadline to December 31st will reduce burdens on carriers and minimize the potential need for late filings and corrections. The resulting delay in the initiation of adjustments to ICLS as part of the ICLS true-up process will be mitigated by the measures the Commission adopts below to improve the accuracy of ICLS payments. In particular, permitting carriers to revise their projected data for the current and upcoming ICLS funding years on June 30th will mitigate the lag between projected and actual data filings and give carriers more meaningful opportunities to revise projections to adjust ICLS where necessary. Moving the deadline for filing actual cost and revenue data to December 31st also will not result in any delay in the completion of the ICLS true-up process. Under the current rules, ICLS true-up payments are spread over the calendar year following the filing of actual data. The Commission concludes that ICLS true-up payments instead can be distributed over the final two quarters of the calendar year without affecting fund stability.

3. Voluntary Updates of Projected Cost and Revenue Data. The Commission also concludes that certain modifications to § 54.903(a)(3), governing the filing of projected cost and revenue data, are warranted. Under the rules adopted in the MAG Order, carriers that wish to receive ICLS must, on March 31st, file projected data for the upcoming July 1st to June 30th funding year and may correct that data until April 10th. The Commission concludes that permitting carriers at their discretion to correct their projected data for the upcoming funding year until June 30th would better promote the accurate and efficient distribution of ICLS without increasing administrative burdens. Additionally, the Commission provides a voluntary opportunity for rate-of-return carriers to update on June 30th their projected data for the ICLS funding year ending on that date will promote the accurate and efficient distribution of ICLS.

4. The Commission will amend § 54.903(a)(3) of our rules for voluntarily updating the March 31st filing to replace the existing April 10th deadline with a June 30th deadline. The Commission agrees with NECA that this deadline extension will provide a more meaningful opportunity for carriers to revise their projections and, therefore, will increase the accuracy of ICLS for the coming funding year. Two major factors potentially affecting projections will be resolved by the June 30th prior to the start of each funding year. First, the Commission normally approves or modifies the common line average schedule settlements formula proposed by NECA by June 15th of each funding year. Because this formula functions in the same manner as the common line revenue requirement for average schedule carriers, the specific resolution of this formula could have a significant effect on the amount of prospective ICLS received by average schedule carriers. Second, NECA, as tariff agent on behalf of pooling carriers, continues to update projected cost and revenue data until its June 15th deadline for filing a common line tariff with the Commission. The new deadline the Commission adopts here will enable carriers to incorporate these updates into their ICLS filings, will permit calculation of more accurate ICLS amounts for the coming funding year, and will reduce the size of the true-ups required when actual cost and revenue data is available.

5. The Commission also concludes that permitting carriers, at their option, to update on June 30th their projected data for the past funding year will promote the Commission's goals of minimizing administrative burdens while promoting accuracy of ICLS payments. This update will provide carriers an additional opportunity, in advance of the true-up process, to recognize changed circumstances that may have affected their projections. This will have the effect of minimizing the size of the final true-up adjustments that will occur after actual cost and revenue data is filed. The Administrator shall reflect both the corrections to projections for the upcoming funding year and updates to projections for the past funding year through adjustments to ICLS payments made during the first two quarters of the following calendar year.

6. In light of the modifications the Commission adopts here, we eliminate the optional quarterly update of actual data adopted in the MAG Order. The quarterly update of actual data was intended to permit carriers to accelerate the true-up process by recognizing actual costs and revenues earlier than would otherwise be possible. However, based on further consideration, the Commission finds that the ability to update actual data on a quarterly basis will not be useful for most carriers. In addition, the quarterly update of actual data creates potential administrative costs that the measures the Commission adopts herein make unnecessary.

7. The Commission denies the Petition for Reconsideration's request to move the deadline for carriers to file projected data with USAC from March 31st to July 15th. At the time the Petition was filed, the Joint Petitioners contended that these changes were necessary because data used to develop projections were not available on March 31st. The Petition for Reconsideration further suggested that carriers instead be allowed to rely on NECA to submit aggregate projections for the common line pool on March 31st. NECA later indicated, however, that it had made changes to its own procedures that would ensure that carriers could make projections by March 31st, rendering unnecessary the request for the Commission to change the March 31st filing date. In addition, consistent with USAC's administrative obligations and the necessity of calculating per-line support amounts, ICLS payments for the coming funding year must be based on individual carrier data, not aggregate data. For these reasons, the Commission denies the Joint Petitioners' request. The Commission notes that, under the rules adopted in the MAG Order, a rate-of-return carrier may elect to rely on NECA, as its agent, to submit ICLS data to USAC on its behalf.

8. Collection of Projected and Actual Revenue Data. As requested by the Joint Petitioners, the Commission also amends our rules to clarify that carriers must file common line revenue data to permit calculation of ICLS. The Joint Petitioners correctly note that § 54.903(a)(3) and (a)(4) of the Commission's rules do not explicitly state that carriers must file revenue data in addition to cost data, even though revenue data is clearly necessary to calculate ICLS. The MAG Order unambiguously granted USAC authority to collect any data necessary to administer the ICLS mechanism, including revenue data, and the Commission does nothing here to change that. The Commission revises the rules only to more clearly state certain types of data that will be required. Accordingly, the Commission amends § 54.903(a)(3) and (a)(4) to clarify that the types of data that carriers must file thereunder include common line revenue data.

9. Apportionment of NECA Costs. The Commission denies the Joint Petitioners' request to amend § 69.603 to specify how NECA, as common line pool administrator, should apportion its administrative expenses among pooling carriers for the purposes of calculating individual study area common line revenue requirements. In the MAG Order, the Commission amended its rules to ensure that NECA's administrative costs are appropriately allocated after the implementation of the MAG Order's reforms. The Joint Petitioners request that the Commission further amend § 69.603(h)(2) of its rules to specify how NECA should apportion its Category I.B. costs—those costs assigned to the common line pool—among members of the common line pool. No comments were received on this issue, and, subsequently, NECA filed projected cost and revenue data with USAC which apportioned NECA Category I.B. expenses among its members. The Commission finds that NECA has appropriate discretion under the Commission's existing rules to determine how to apportion expenses among members of the common line pool in an equitable manner, and we see no need to amend our rules to prescribe a specific apportionment method at this time.

10. Miscellaneous issues. On our own motion, the Commission further amends our rules to correct three errors. First, the Commission amends § 54.902 to correct erroneous cross-references. Second, in order to conform our rules to the Commission's intent in the MAG Order, we amend § 54.307(a)(2) to include a reference to ICLS. Third, the Commission amends § 54.903(b)(3) to clarify that the reconciliation performed by USAC as part of its true-up process applies to the support amounts received by carriers, not their common line revenue requirements.

11. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was included in the MAG Notice . Additionally, a Final Regulatory Flexibility Analysis (FRFA) was included in the MAG Order . In compliance with the RFA, this Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) supplements the FRFA included in the MAG Order to the extent that changes to that Order adopted here on reconsideration require changes in the conclusions reached in the FRFA.

12. This Third Order on Reconsideration addresses a Petition for Reconsideration filed jointly by the National Exchange Carrier Association, the National Rural Telecom Association, the Organization for the Promotion and Advancement of Small Telecommunications Companies, and the United State Telecom Association (collectively, the Joint Petitioners). Section 254 of the Communications Act of 1934, as amended by the 1996 Act, requires the Commission to promulgate rules to preserve and advance universal service support. Pursuant to that mandate, the Commission, in the MAG Order, adopted reforms to the interstate access rate structure and universal service support mechanisms for rate-of-return carriers. In making these reforms, the Commission created the ICLS mechanism to provide explicit universal service support and adopted rules governing its administration. The Commission now concludes that certain changes to the rules governing ICLS's administration will promote more accurate and efficient distribution of ICLS while minimizing administrative burdens on rate-of-return carriers. In response to the concerns raised by the Joint Petitioners, the Commission grants their request to amend § 54.903(a)(4) of our rules to move the deadline for filing actual common line cost and revenue data from July 31st to December 31st of each year. The Commission also amends § 54.903(a)(3) of our rules to permit rate-of-return carriers to file updates of projected common line cost and revenue data on June 30th of each year. As discussed, these changes will promote more accurate and efficient distribution of ICLS while minimizing administrative burdens on rate-of-return carriers. Additionally, the Commission adopts several minor amendments to §§ 54.307, 54.902, and 54.903 of our rules in response to issues raised by the Joint Petitioners and on our own motion.

13. In response to the Joint Petitioners' Petition for Reconsideration, the Commission received one comment. However, after careful consideration, the Commission concludes that this comment does not raise significant small business-related issues.

14. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

15. In the previous FRFA at paragraphs 289-300 of the MAG Order, the Commission described and estimated the number of small entities that would be affected by the new universal service rules. These included local exchange carriers, interexchange carriers, competitive service providers, and providers of wireless telephony, rural radiotelephone service, fixed microwave services, and 39 GHz service. The rule amendment adopted herein may apply to the same entities affected by the rules adopted in that order. The Commission therefore incorporates by reference paragraphs 289-300 of the MAG Order.

16. This Third Order on Reconsideration makes several changes to the reporting requirements for rate-of-return carriers receiving ICLS, but creates few additional burdens. First, this Third Order on Reconsideration changes the existing annual filing date for actual common line cost and revenue data from July 31st to December 31st, but adds no new requirements with respect to that filing. Second, this Third Order on Reconsideration changes the existing deadline for filing voluntary corrections to projected common line cost and revenue data from April 10th to June 30th, but adds no new requirements with respect to that filing. The Commission also creates an opportunity for each carrier to voluntarily file an annual update to its projected data, but do not require a carrier to perform the update. In connection with these changes, the Commission also eliminates an existing opportunity for voluntary update of actual common line cost and revenue data on a quarterly basis. Third, the Commission amends our rules to clarify the data required for certain existing filing requirements, but do not require the reporting of any additional data beyond that already filed by carriers. These amendments apply equally to all entities affected, and therefore impose no different burdens on smaller entities.

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

18. The Commission notes that we do not find that this Third Order on Reconsideration creates a significant economic impact on small entities. The Commission could therefore meet our obligations under the RFA by certifying that there is no significant economic impact on small entities, rather than including this SFRFA. The Commission nonetheless includes this Supplemental FRFA to demonstrate that we have considered the impact of our action on small entities in adopting this Third Order on Reconsideration.

19. As noted, the amendment to our rules adopted in this Third Order on Reconsideration does not have a significant impact on small entities. Our actions are intended primarily to reduce administrative burdens on small carriers associated with the ICLS mechanism, while also promoting the accurate and efficient distribution of ICLS. Our actions respond to concerns raised by representatives of small carriers. The Commission does consider alternatives to the actions adopted herein but concluded that these alternatives would not reduce administrative burdens or increase the accuracy of ICLS as effectively as the measures we adopt. These alternatives include retaining the filing requirements currently codified in the Commission's rules, extending the current March 31st date for filing projected cost and revenue data to July 15th, and permitting carriers to update their projected data on a quarterly basis.

20. The Commission will send a copy of this Third Order on Reconsideration, including this Supplemental FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of this Third Order on Reconsideration, including this Supplemental FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Third Order on Reconsideration and Supplemental FRFA (or summaries thereof) will also be published in the Federal Register .

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

22. It is ordered that, pursuant to the authority contained in sections 1-4, 10, 201-202, and 254 of the Communications Act of 1934 as amended, and §§ 1.3 and 1.103 of the Commission's rules, this Third Order on Reconsideration is adopted.

23. It is further ordered that part 54 of the Commission's rules, is amended as set forth, effective June 27, 2003. The collections of information are contingent upon approval by the Office of Management and Budget as necessary.

24. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Third Order on Reconsideration, including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

In its current drug and alcohol testing procedures (49 CFR part 40), the Department sets forth criteria for determining when a specimen should be considered substituted (see § 40.93(b)). This provision states that:

These criteria, which are taken directly from Department of Health and Human Services (HHS) program documents, are important because, if an employee's specimen meets them, the employee will be regarded as having refused the drug test, typically with consequences equivalent to those for a positive test.

Substitution testing and criteria were controversial subjects during the rulemaking that created the current part 40. In the preamble to the final rule, the Department extensively discussed these issues (see 65 FR 79478-79481; December 19, 2000). The Department concluded, based on studies by HHS and the Department of Transportation, that the creatinine criterion of less than or equal to 5 mg/dL was appropriate. We concluded that it was very unlikely that employees could produce urine meeting that standard through physiological means.

Nevertheless, the current rule provides procedures through which a medical review officer (MRO) verifies tests that a laboratory reports as substituted, including a means through which an employee can demonstrate that there is a legitimate medical explanation for the laboratory result (§ 40.145). If the MRO, after evaluating the employee and receiving the recommendation of a referral physician and the results of a demonstration that the individual can produce a low-creatinine specimen by natural means, ultimately finds that there is a legitimate medical explanation, the MRO will cancel the test result.

More recently, however, information has evolved suggesting that the Department's treatment of substitution matters should be reconsidered. The Department has become aware of a small number of cases in which individuals appear to have had legitimate medical explanations for producing specimens with a creatinine level of less than or equal to 5 mg/dL. These explanations have involved showings by a few individuals that they can produce low-creatinine specimens in demonstrations for a referral physician. Also, there is an increasing consensus among scientific and medical experts in relevant fields that the 5 mg/dL standard may not be appropriate. That is, there is probably a very small, but not insignificant, number of individuals who may, under normal circumstances, produce urine with creatinine concentrations below that level.

This information was discussed at a conference sponsored by the Federal Aviation Administration in Tampa, Florida, on February 4-6, 2003. The conference brought together toxicologists, nephrologists and other physicians, MROs, technical experts in various fields, and DOT and HHS officials. Attendees at the conference generally agreed that it would be appropriate to lower the creatinine criterion. The purpose of doing so would be to largely eliminate the possibility that individuals who could naturally produce urine creatinine concentrations below that current standard would be identified as having substituted a specimen. As directed by the Senate Appropriations subcommittee with jurisdiction over the FAA, which expressed concern about the possibility of some employees inadvertently failing to meet current validity standards, the Department will shortly submit to that subcommittee a final report incorporating the material discussed at the conference. When the Department submits this report, we will also post it in the docket for this rulemaking.

The Department is continuing to work with HHS, laboratories, and other interested persons on issues related to substitution. This process may take considerable time. Meanwhile, the Department believes that it is sensible to take an interim step to minimize the possibility of individuals who can naturally produce urine with creatinine concentrations of less than or equal to 5 mg/dL being identified as having substituted their specimens. Consequently, in this interim final rule, we are taking the following steps.

1. We are directing laboratories to report to MROs, on Copy 1 of the Custody and Control Form (CCF) (also in the optional laboratory report), the creatinine and specific gravity quantifications for all DOT specimens that meet the regulatory substitution criteria. In these situations, laboratories will be required to include a notation on Copy 1 saying, for example, “Creatinine, 4.5 mg/dL; Specific Gravity, 1.001.” Note, however, that we are not changing existing substitution criteria (see § 40.93).

2. In making this report, laboratories would report quantitative values for creatinine only when the creatinine concentration in a specimen was above a laboratory's minimum detection limit. Anything below this limit would be reported as “creatinine not detected.” If MROs inquire what a particular laboratory's limit of detection is for a particular specimen, the laboratory should provide this information. It is our understanding that all HHS-certified laboratories have a limit of detection for creatinine of 1 mg/dL or less

3. When an MRO gets a report from the laboratory that the creatinine level in a specimen is less than 2 mg/dL or is “creatinine not detected,” the MRO will report the specimen to the employer as “substituted.” When the MRO gets a report from the laboratory that the creatinine level in a specimen is greater than or equal to 2 mg/dL but less than or equal to 5 mg/dL, the MRO will report the specimen to the employer as “dilute,” just as if the creatinine concentration were greater than or equal to 5 but less than 20 mg/dL (and also negative or positive, as provided in § 40.155).

4. When the MRO gets a report from the laboratory that the creatinine level in a specimen is 2 mg/dL or above but less than or equal to 5 mg/dL, the MRO—in addition to reporting the specimen to the employer as dilute—must take an additional step. This step is to direct the employer to require the employee to undergo an immediate recollection under direct observation. The employer must then ensure that this recollection takes place.

The rationale for changing the reporting procedure for specimens in the 2-5 mg/dL creatinine concentration range is to provide the maximum margin of safety to ensure that people who may naturally produce low creatinine levels—most cases that have been brought to the Department's attention have been in the 4.1-4.9 mg/dL range—will not be reported to employers as having substituted their specimens. The Department is aware that this procedural change may for a time slightly increase the risk of individuals attempting to substitute their specimens to evade detection of drug use. We believe that this risk is outweighed by the benefit of avoiding unfairly identifying persons as having substituted specimens. Because specimens in the specified range may create greater concern than less dilute specimens that a substitution may have been attempted, we believe that heightened scrutiny of these specimens is warranted. We believe that the requirement for recollection under direct observation is justified as a safeguard against tampering with specimens.

[Here, and in other places in the rule, where we express a quantitative value as a whole number ( e.g. , 2 or 5), we mean exactly that number ( e.g. , 2.0 or 5.0).]

This series of steps will not cause laboratories to change existing criteria or procedures, limiting burdens on them to the ministerial step of adding a brief notation of existing data on an existing form. Based on laboratories' experience, laboratories are likely to have to follow these procedures in only about 2000 out of the several million DOT specimens tested each year.

The Department wishes to provide guidance to program participants concerning some questions we anticipate may arise in the implementation of these amendments to part 40 and related provisions. First, there may be some substituted specimens in process on the date this amendment becomes effective. If a laboratory has tested a specimen, found that it meets the substitution criteria of § 40.93, but has not yet reported the substituted result to the MRO on the effective date of this amendment, the laboratory should report it as substituted with the quantitative creatinine and specific gravity values, as this amendment provides.

If an MRO has received a substituted result before the effective date of the amendment and has not yet reported the result to the employer on the effective date of the amendment, the MRO should request the quantitations from the laboratory before reporting the result to the employer. The MRO would then report the result to the employer as substituted or dilute, as this amendment provides.

If the employer received a substituted result from the MRO before the effective date of this amendment, the employer would continue to treat the result as substituted, as provided in part 40 prior to these amendments. The employer in this case is not required to go back to the MRO or laboratory and obtain the quantitations for creatinine and specific gravity.

There could be situations in which a laboratory finds enough drug or metabolite in a specimen to report it as positive and at the same time determines that the specimen is substituted or, more likely, adulterated. Suppose, in such a situation, testing of the split does not confirm the substitution or adulteration finding. Program participants would still treat the test as a positive test for the drug.

Also, in order to reconfirm a substitution finding, it is not necessary for the laboratory testing the split to come to precisely the same quantitative result as the primary laboratory. Suppose the primary laboratory's quantitation for creatinine is 1.2 mg/dL. The second laboratory's quantitation is 1.8 mg/dL. Both results are less than 2 mg/dL. In this situation, we regard the initial result as having been reconfirmed. On the other hand, suppose the quantitation of creatinine by the first laboratory for the primary specimen is 1.9 mg/dL, and the quantitation of creatinine by the second laboratory for the split specimen is 2.3 mg/dL. In this case, the MRO would report the result of the split specimen as “dilute” (see numbered paragraph 3 above) with instructions to the employer to conduct an immediate recollection under direct observation.

We emphasize that, in the case where creatinine is reported as “creatinine not detected” (see amended § 40.97(e)(2)), the proper action for the MRO is to report the specimen to the employer as substituted. While the procedures of § 40.145 apply to such a case, § 40.151(i) tells MROs not to accept as a legitimate medical explanation for a substituted specimen an assertion that an employee can produce urine with no detectable creatinine.

This rule is not a significant rule under Executive Order 12866 or the Department of Transportation's Regulatory Policies and Procedures. Costs to laboratories and MROs will be minimal, since the rule merely makes a minor change in the way existing results are reported in a very small percentage of cases. There will be no significant burdens or economic effects on any of the participants in the drug testing process. Consequently, the Department certifies, under the Regulatory Flexibility Act, that this rule will not have a significant economic impact on a substantial number of small entities.

Under the criteria of section 553 of the Administrative Procedure Act, the Department has determined that prior notice and public comment on this rule are impractical, unnecessary, or contrary to the public interest. This is because, given the information now available to the Department, we have concluded that it is necessary to make an interim change immediately to avoid the possibility that individuals will be incorrectly reported as having substituted a specimen. For the same reason, the Department finds good cause to make this rule effective immediately.

I. Background

On March 25, 2003, the Research and Special Programs Administration (RSPA, we) published a final rule to enhance the security of hazardous materials transported in commerce (68 FR 14510). In this final rule, shippers and carriers of certain highly hazardous materials must develop and implement security plans. In addition, all shippers and carriers of hazardous materials must assure that their employee training includes a security component. The effective date of this final rule is March 25, 2003.

On April 30, 2003, OMB approved information collection for the development of and maintenance of security plans, OMB No. 2137-0612, “Hazardous Materials Security Plans”, until April 30, 2006. Because OMB approved the information collection after publication of the March 25, 2003 final rule, we are announcing the OMB approval and incorporating this new information collection approval into § 171.6, “Control numbers under the Paperwork Reduction Act.”, under OMB Control No 2137-0612.

OMB regulations (5 CFR 1320) implementing provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities ( see 5 CFR 1320.8(s)) and specify that no person is required to respond to an information collection unless it displays a valid OMB control number. In accordance with the Paperwork Reduction Act of 1995, RSPA has received OMB approval of the following ICR and § 171.6(b)(2) is revised by incorporating the following information collection:

OMB Control Number: 2137-0612.

Title: Hazardous Materials Security Plans.

This information collection approval expires on April 30, 2006. This information collection request was approved by OMB on April 30, 2003.

We are revising the table in paragraph (b)(2) to incorporate a new information collection, OMB No. 2137-0612, “Hazardous Materials Security Plans,” and the affected sections, which include a new part 172, subpart I—Security Plans and §§ 172.800, 172.802, and 172.804.

This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. This rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). Because of the minimal economic impact of this rule, preparation of a regulatory impact analysis or a regulatory evaluation is not warranted.

This final rule has been analyzed in accordance with the principles and criteria in Executive Order 13132 (“Federalism”). This final rule does not propose any regulation that: (1) Has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government; (2) imposes substantial direct compliance costs on State and local governments; or (3) preempts state law.

RSPA is not aware of any State, local, or Indian tribe requirements that would be preempted by correcting editorial errors and making minor regulatory changes. This final rule does not have sufficient federalism impacts to warrant the preparation of a federalism assessment.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this rule does not have tribal implications and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply.

I certify that this final rule will not have a significant economic impact on a substantial number of small entities. This rule makes minor editorial changes which will not impose any new requirements on persons subject to the HMR; thus, there are no direct or indirect adverse economic impacts for small units of government, businesses or other organizations.

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

There are no new information collection requirements in this final rule. This final rule announces the approval of information collection OMB No. 2137-0612, “Hazardous Materials Security Plans,” and incorporates this new OMB Control Number, Title, and Affected Sections into the Section 171.6 (b)(2) table in the HMR.

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

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

The 2003 red king crab bycatch allowance specified for Zone 1 of the BSAI trawl yellowfin sole fishery category, which is defined at § 679.21(e)(3)(iv)(B)(1), is 16,664 animals (68 FR 9907, March 3, 2003).

In accordance with § 679.21(e)(7)(ii), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2003 bycatch allowance of red king crab specified for the trawl yellowfin sole fishery in Zone 1 of the BSAI has been reached. Consequently, the Regional Administrator is closing directed fishing for yellowfin sole by vessels using trawl gear in Zone 1 of the BSAI.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to exceeding the 2003 bycatch allowance of red king crab specified for the trawl yellowfin sole fishery in Zone 1 of the BSAI, and therefore reduce the public's ability to use and enjoy the fishery resource.

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

This action is required by 50 CFR 679.21 and is exempt from review under Executive Order 12866.

NMFS manages the domestic groundfish fisheries of the GOA under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP under the Magnuson-Stevens Act. Regulations governing the groundfish fisheries of the GOA appear at 50 CFR parts 600 and 679.

The background regarding this action, including the Steller sea lion protection measures, the Council action, U. S. District Court orders, and the State of Alaska fishery restrictions, is detailed in the preamble to the proposed rule (68 FR 7750, February 18, 2003). This final rule removes restrictions on using pot gear for directed fishing for Pacific cod by vessels named on a Federal groundfish fishing permit in waters within 3 nm of Cape Barnabas and Caton Island. Accordingly, Table 5 to part 679 is revised by removing the 3 nm restriction in column 9 for Caton Island and Cape Barnabas.

No comments were received on the proposed rule.

This final rule revises Table 5 to part 679 from the proposed rule. Since the proposed rule was published on February 18, 2003, (68 FR 7750), NMFS published a correction to the Steller sea lion protection measures (SSL correction) at 68 FR 24615, May 08, 2003. The corrections to Table 5 in the SSL correction were not included in the proposed rule for this action. To ensure the corrections to Table 5 from the SSL correction remain in the Code of Federal Regulations, Table 5 in this final rule is revised from the proposed rule to include those revisions that were published in the SSL correction. For details on these revisions, see the preamble to the SSL correction (68 FR 24615).

The Administrator, Alaska Region, NMFS has determined that removing restrictions on directed fishing for Pacific cod using pot gear within 3 nm of Caton Island and Cape Barnabas is necessary for the conservation and management of the Pacific cod pot gear fishery and is consistent with the Magnuson-Stevens Act and other applicable laws.

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

Species listed under the Endangered Species Act (ESA) are present in the action area. This action is not expected to result in increases of Pacific cod harvest beyond those experienced with the opening of the State parallel fishery in these areas. With no additional removals of Pacific cod expected, informal ESA consultation completed on December 11, 2001, concluded that this action is not likely to adversely affect listed species or critical habitat.

NMFS has prepared a FRFA for this action pursuant to Section 604(a) of the Regulatory Flexibility Act. The need for and objectives of this action have been discussed earlier in detail in the preamble to the proposed rule (68 FR 7750, February 18, 2003).

NMFS prepared an IRFA that describes the impact this action may have on small entities. This action is necessary to provide consistency between State and Federal fishing restrictions and to relieve a potential burden on the Pacific cod pot gear fishing sector. This action is expected to affect six regulated small entities by removing a fishing restriction. These entities are the pot vessels fishing for Pacific cod in the waters within 3 nm of the two haulouts. This action does not impose new reporting, recordkeeping or other compliance requirements on regulated small entities. No Federal rules exist that duplicate, overlap or conflict with the proposed rule. This action does not have any adverse impacts on regulated small entities. No significant alternatives to the proposed rule exist that would have lower economic impacts on these entities.

Two alternatives were considered for the Caton Island and Cape Barnabas pot fishing vessels: (1) No exemption for these vessels (status quo) and (2) exempt pot fishing vessels from SSL closures from 0 to 3 nm around Caton Island and Cape Barnabas. Alternative 1 is the baseline alternative, and federally permitted vessels using pot gear for Pacific cod directed fishing would continue to be prohibited from fishing within 3 nm of the Caton Island and Cape Barnabas haulouts. Also, the status quo would not provide consistency between Federal and State regulations governing fishing restrictions within Steller sea lion protection areas. The preferred alternative would allow federally-permitted vessels used to participate in the GOA Pacific cod pot fishery to fish within 3 nm of the haulouts at Caton Island and Cape Barnabas. This would reduce the Pacific cod revenues placed “at risk” by the restrictions of the status quo alternative by up to $63,000. The areas in question are small parts of larger fishing areas, and fishermen may currently be making up a large part of the harvest foreclosed by the restrictions by fishing elsewhere. This alternative is not believed to create jeopardy for the Steller sea lions or adversely modify its critical habitat. This alternative would not trigger Executive Order 12866 significance criteria since the maximum revenue impact is likely to be $63,000 at the outside.

NMFS Alaska Fisheries Science Center (AFSC) data show that, in 2000, 252 pot catcher vessels and four pot catcher/processors fished for groundfish in the GOA. The numbers fishing near the waters that are opened under this action are smaller. An examination of the numbers of vessels fishing for Pacific cod with pot gear in state waters within the South Peninsula management area (the location of the Caton Island haulout) found 31 in 1999 and 51 in 2000. An examination of the numbers fishing in the Kodiak management area (the location of the Cape Barnabas haulout) found 41 in 1999 and 44 in 2000. An estimated six vessels actually fished within the Caton Island and Cape Barnabas haulouts in each of those years. Information on gross revenues from the AFSC indicates that all vessels fishing for Pacific cod with pots in the GOA are classified as small entities according to Small Business Administration criteria.

At its October 2001 meeting, the Council recommended SSL protection measures for 2002 and beyond. These measures were developed by a Council-appointed committee. In developing its recommendations, the SSL Committee first assessed the needs of Steller sea lions to avoid jeopardy or destruction or adverse modification of their critical habitat based on the best scientific information available. The SSL Committee then crafted groundfish fisheries management measures that first provided protection for Steller sea lions. If some flexibility existed, the measures were crafted to minimize adverse economic impacts to affected fishermen and fishing communities, as long as protection for Steller sea lions was maintained, as required by the ESA.

These recommendations included a revised harvest control rule for pollock, Pacific cod, and Atka mackerel; closed areas and seasons based on the location, fishery, and gear type; critical habitat harvest limits for the pollock and Atka mackerel fisheries in certain areas of critical habitat; and requirements to allow for monitoring of pollock, Pacific cod, and Atka mackerel directed fishing. The recommendations of the SSL Committee were further modified by the Council.

In November 2001, the Alaska Board of Fisheries (BOF) reviewed the Council's recommendation for Steller sea lion protection measures. These measures generally consist of fishery or gear specific directed fishing closures within 3, 10, or 20 nautical miles (nm) of Steller sea lion rookeries or haulouts. NMFS and the Council expected that the BOF would mirror these regulations in State waters during the parallel fisheries for pollock, Atka mackerel, and Pacific cod. This is necessary to implement the protection measures that included fishery prohibitions that extended into State waters.

The BOF responded by authorizing the Commissioner of the Alaska Department of Fish and Game, through emergency order, to open and close seasons and areas as necessary to mirror federal regulations for the purpose of protecting Steller sea lions. However, the BOF did provide two exemptions for vessels fishing for Pacific cod with pot gear around the Caton Island and Cape Barnabas haulouts.

The two exceptions in the parallel fishery would allow directed fishing for Pacific cod with pot gear between 0-3 nm of the Caton Island and Cape Barnabas haulouts. The proposed action recommended by the Council, and assessed in the 2001 Biological Opinion (BiOp), closed 0-3 nm to all gear types except vessels using jig gear. Thus, the BOF action authorizes pot gear fishing within 0-3 nm of two haulouts that was not considered or assessed in the 2001 BiOp.

The rationale stated by the BOF for this discrepancy was that few animals have been seen at these two sites over the last decade; these sites are haulouts instead of rookeries; and that other sites in the region would remain closed to pot gear fishing inside 3 nm of haulouts. Hook-and-line gear was not included in the exemption because this gear type is not authorized in the State-managed Pacific cod fishery.

Because the BOF action did not contain these Caton Island and Cape Barnabas closures, the SSL protection measures under state regulations were not consistent with Federal rules because they allowed vessels without a federal fishing permit to fish in those areas under Alaska State law. This resulted in conflicting Federal and State regulations, as well as being different from the action that was consulted on under the ESA. In November, 2001, NMFS informally consulted on these changes and determined that they were not of sufficient extent to re-initiate formal consultation under the ESA. NMFS informed the Council at its February 2002 meeting that no new scientific analyses were necessary in order to consider the BOF action on GOA haulouts, therefore, the Council requested that an analysis be developed immediately for an action to remove fishing restrictions around these sites.

A copy of the FRFA is available from NMFS (see ADDRESSES ).