This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. This rule will not preempt any state or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of the rule. The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Accordingly, AMS has prepared this initial regulatory flexibility analysis. Interested parties are invited to submit information on the regulatory and informational impacts of this action on small businesses.

Available information provided by the California Pistachio Commission (CPC) show that there are 647 California pistachio producers and 19 California handlers of pistachio nuts, most of which are also growers or have grower members. Additional information provided by CPC show that 445 California pistachio producers (69% of the total) produce less than 100,000 pounds per year; 100 producers (15%) produce more than 100,000 and less than 250,000 pounds; 43 growers (7%) produce more than 250,000 and less than 500,000 pounds; and 59 producers (9%) grow more than 500,000 pounds. U.S. grade standards for pistachios would normally be used at the sales level of marketing, which is ordinarily carried out at the processor/packer level or after processing has been completed. Pistachio nuts may be marketed by multiple commodity marketing firms.

The California Department of Food and Agriculture Resource Directory 2002, reports that California accounted for more than 99 percent of domestic pistachio production. More current information available to the Department indicates that California has 97 percent of domestic production with Arizona at 2 percent and New Mexico with less than 1 percent.

Small agricultural service firms, which include handlers (packers, brokers, distributors, importers, etc. ), have been defined by the Small Business Administration (SBA) (13 CFR 121.601) as those having annual receipts of less than $5,000,000 and small agricultural producers are defined as those having annual receipts of less than $750,000. The pistachio industry is characterized by growers that produce from .1 to more than 500 acres. Approximately 9 percent of the California pistachio growers receive more than $550,000 annually. Only a portion of these producers would meet SBA's definition of a small agricultural producer. At least 12 of the California pistachio handlers (or 63 percent of the total) could be considered small businesses under SBA's definition. We would expect that similar size determinations would hold for the remainder of domestic production.

This rule will: More closely align the grade names with other tree nut commodities and current industry recognized marketing terms, reduce the tolerance for internal defects for the purpose of providing a higher degree of quality assurance to consumers, relax the level of light stain on the shell, more objectively define when nuts are damaged by various factors, and establish two additional grades which reflect the industry's marketing of in-shell byproducts. The benefits of this rule are not expected to be disproportionately greater or smaller for small handlers or producers than for large entities.

This action will make the standards more consistent and uniform with current industry terms and practices. This action would not impose substantial direct economic cost, record keeping, or personnel workload changes on small entities, and it would not alter the market share or competitive position of these entities relative to large businesses. USDA has not identified any Federal rules that currently duplicate, overlap, or conflict with this rule. In addition, under the Agricultural Marketing Act of 1946, the use of these standards is voluntary.

Alternatives were considered for this action. One alternative would be to not issue a rule. However, the need for revisions have increased as a result of changing marketing characteristics by industry, several years of work with the industry to assess market and grower implications, and other input from all sectors of the pistachio industry and government. Since the purpose of these standards is to expedite the marketing of pistachio nuts in the U.S., not revising the standards would result in disuse of national standards and confusion in terms of industry marketing and the proper application of the grade standards.

The proposed rule, the United States Standards for Grades of Pistachio Nuts in the Shell and the United States Standards for Grades of Shelled Pistachio Nuts was published in the Federal Register on May 23, 2003 (68 FR 28141). A comment period of thirty days was issued which closed on June 23, 2003.

One e-mail comment was received. The commenter stated that the United States Standards for Grades of Pistachio Nuts in the Shell contain a tolerance for “damage by other means,” but do not contain a definition for “damage by other means.” However, “damage by other means” is not a specific defect. This tolerance is provided for all defects that are not specifically covered by other tolerances. Therefore, a definition for “damage by other means” is not necessary.

This rule would revise the United States Standards for Grades of Pistachio Nuts in the Shell and the United States Standards for Grades of Shelled Pistachio Nuts that were issued under the Agricultural Marketing Act of 1946. These standards are voluntarily used by industry as a common trading language to market pistachio nuts under established and known specifications. In some transactions, the buyer and seller may establish their own specifications for the sale, use portions of the U.S. standards while altering other portions to fit the sale and needs of the parties, or use the U.S. standards as written.

At the time of its 1998 request to AMS, the CPC issued “industry standards” based on the requested changes and encouraged California pistachio nuts to be marketed under those standards. The use of the voluntary “industry standards” for national and international marketing with official certification by USDA inspectors based on these standards has continued for three marketing seasons. The changes herein are based on the standards currently being used by the industry to market U.S. grown pistachio nuts nationally and internationally.

The United States Standards for Grades of Pistachio Nuts in the Shell and the United States Standards for Grades of Shelled Pistachio Nuts were developed in 1986 and 1990, respectively. At that time, the U.S. pistachio industry was beginning to compete in a global market. As the industry has grown in numbers of growers and processors and in volume, the current grade standards have been regularly used as a basis of marketing. In recent years, foreign and domestic buyers have developed customers that have uses for nuts which have specifications outside the scope of the U.S. grade standards. In addition, U.S. marketers have begun to offer for sale byproduct forms of pistachio nuts for which there are no uniform marketing specifications in the form of recognized grade standards.

AMS received a request to update and revise the United States Standards for Grades of Pistachio Nuts in the Shell and the United States Standards for Grades of Shelled Pistachio Nuts from the CPC. The CPC is the State-approved marketing agent for the California pistachio industry and represents nearly all commercial pistachio producers and handlers in California. AMS and its State cooperator in California have been closely working with CPC and its members since 1994 to review and update the industry grade standards. Official inspection services, with these U.S. grade standards as the basis, have been used by the industry since the inception of the standards.

Currently, the majority of U.S. pistachio production, and more than 30 percent of worldwide pistachio production, originates from California. The California industry, in cooperation with the CPC, began a comprehensive review of the current standards in 1994. As this process evolved, the industry tested possible revision theories through hands-on testing in the packing plants, through consumer preference studies, and through public meetings with processors, growers and other interested parties. This was initiated in order to review the standards and meet the marketing needs of the U.S. pistachio industry and the preferences of industry buyers and the general public. As a result of this study, the CPC, acting on behalf of California growers and shippers, requested an amendment to the standards.

This rule revises the standards to more closely align the grade names with other tree nut commodities and current industry recognized marketing terms, reduce the tolerance for internal defects for the purpose of providing a higher degree of quality assurance to consumers, relax the level of light stain on the shell, more objectively define when nuts are damaged by various factors, and establish two additional grades which reflect the industry's marketing of in-shell byproducts. These changes are intended to update the standards to maintain their usefulness as they are applied to today's marketing challenges, both nationally and internationally.

Therefore, AMS amends the United States Standards for Grades of Pistachio Nuts in the Shell and the United States Standards for Grades of Shelled Pistachio Nuts as follows:

This administrative rule is governed by the provisions of Sections 556 and 557 of Title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Order 12866.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any state or local laws, regulations, or policies, unless they present an irreconcilable conflict with the rule.

The Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may request modification or exemption from such order by filing with the Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with the law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, the Department would rule on the petition. The Act provides that the District Court of the United States in any district in which the handler is an inhabitant, or has its principal place of business, has jurisdiction in equity to review the Department's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Agricultural Marketing Service has considered the economic impact of this action on small entities and has certified that this rule will not have a significant economic impact on a substantial number of small entities. For the purpose of the Regulatory Flexibility Act, a dairy farm is considered a “small business” if it has an annual gross revenue of less than $750,000, and a dairy products manufacturer is a “small business” if it has fewer than 500 employees.

For the purposes of determining which dairy farms are “small businesses,” the $750,000 per year criterion was used to establish a production guideline of 500,000 pounds per month. Although this guideline does not factor in additional monies that may be received by dairy producers, it should be an inclusive standard for most “small” dairy farmers. For purposes of determining a handler's size, if the plant is part of a larger company operating multiple plants that collectively exceed the 500-employee limit, the plant will be considered a large business even if the local plant has fewer than 500 employees.

In June 2001, there were 12,748 producers pooled on, and 57 handlers regulated by, the Upper Midwest order. Based on these criteria, the vast majority of the producers and handlers would be considered as small businesses. The adoption of the proposed pooling standards serves to revise established criteria that determine those producers, producer milk, and plants that have a reasonable association with, and are consistently serving the fluid needs of, the Upper Midwest milk marketing area and are not associated with other market-wide pools concerning the same milk. Criteria for pooling are established on the basis of performance levels that are considered adequate to meet the Class I fluid needs and, by doing so, determine those that are eligible to share in the revenue that arises from the classified pricing of milk. Criteria for pooling are established without regard to the size of any dairy industry organization or entity. The criteria established are applied in an identical fashion to both large and small businesses and do not have any different economic impact on small entities as opposed to large entities. Therefore, the amendments will not have a significant economic impact on a substantial number of small entities.

A review of reporting requirements was completed under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). It was determined that these amendments would have no impact on reporting, recordkeeping, or other compliance requirements because they would remain identical to the current requirements. No new forms are proposed and no additional reporting requirements would be necessary.

This action does not require additional information collection that requires clearance by the Office of Management and Budget (OMB) beyond currently approved information collection. The primary sources of data used to complete the forms are routinely used in most business transactions. Forms require only a minimal amount of information which can be supplied without data processing equipment or a trained statistical staff. Thus, the information collection and reporting burden is relatively small. Requiring the same reports for all handlers does not significantly disadvantage any handler that is smaller than the industry average.

Prior documents in this proceeding:

Notice of Hearing: Issued June 5, 2001; published June 11, 2001 (66 FR 31185).

Tentative Final Decision: Issued February 8, 2002; published February 14, 2002 (67 FR 7040).

Interim Final Rule: Issued April 16, 2002; published April 22, 2002 (67 FR 19507).

Final Decision: Issued June 18, 2003; published June 24, 2003 (68 FR 37674).

The findings and determinations hereinafter set forth supplement those that were made when the Upper Midwest order was first issued and when it was amended. The previous findings and determinations are hereby ratified and confirmed, except where they may conflict with those set forth herein.

The following findings are hereby made with respect to the Upper Midwest order:

(a) Findings upon the basis of the hearing record. Pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the applicable rules of practice and procedure governing the formulation of marketing agreements and marketing orders (7 CFR Part 900), a public hearing was held upon certain proposed amendments to the tentative marketing agreement and to the order regulating the handling of milk in the Upper Midwest marketing area.

Upon the basis of the evidence introduced at such hearing and the record thereof it is found that:

(1) The Upper Midwest order, as hereby amended, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;

(2) The parity prices of milk, as determined pursuant to section 2 of the Act, are not reasonable in view of the price of feeds, available supplies of feeds, and other economic conditions which affect market supply and demand for milk in the marketing area, and the minimum prices specified in the order, as hereby amended, are such prices as will reflect the aforesaid factors, insure a sufficient quantity of pure and wholesome milk, and be in the public interest; and

(3) The Upper Midwest order, as hereby amended, regulates the handling of milk in the same manner as, and is applicable only to persons in the respective classes of industrial and commercial activity specified in, a marketing agreement upon which a hearing has been held.

(b) Additional Findings. It is necessary in the public interest to make these amendments to the Upper Midwest order effective September 1, 2003. Any delay beyond that date would tend to disrupt the orderly marketing of milk in the aforesaid marketing area.

The amendments to these orders are known to handlers. The final decision containing the proposed amendments to these orders was issued on June 18, 2003. These proposed amendments are identical to the amendments in the Interim Final Rule published in the Federal Register on April 22, 2002 (67 FR 19507) regulating the handing of milk in the Upper Midwest marketing area.

The changes that result from these amendments will not require extensive preparation or substantial alteration in the method of operation for handlers. In view of the foregoing, it is hereby found and determined that good cause exists for making these order amendments effective September 1, 2003. It would be contrary to the public interest to delay the effective date of these amendments for 30 days after their publication in the Federal Register . (Sec. 553(d), Administrative Procedure Act, 5 U.S.C. 551-559.)

(c) Determinations. It is hereby determined that:

(1) The refusal or failure of handlers (excluding cooperative associations specified in Sec. 8c(9) of the Act) of more than 50 percent of the milk, which is marketed within the specified marketing area, to sign a proposed marketing agreement, tends to prevent the effectuation of the declared policy of the Act;

(2) The issuance of this order amending the Upper Midwest order is the only practical means pursuant to the declared policy of the Act of advancing the interests of producers as defined in the order(s) as hereby amended;

(3) The issuance of the order amending the Upper Midwest order is favored by at least two-thirds of the producers who were engaged in the production of milk for sale in the marketing area.

On June 6, 2003, FSIS published an interim final rule, “Control of Listeria monocytogenes in Ready-to-Eat Meat and Poultry Products,” (68 FR 34208), which will become effective October 6, 2003. The rule establishes regulations that require official establishments that produce RTE meat and poultry products to prevent product adulteration by the pathogenic environmental contaminant L. monocytogenes. Under the new regulations, all establishments that produce RTE meat and poultry products that are exposed to the environment after lethality treatments and that support the growth of L. monocytogenes are to have controls that prevent product adulteration by L. monocytogenes in their hazard analysis and critical control point (HACCP) plans, in their sanitation standard operating procedures, or in prerequisite programs. Establishments are also required to maintain and share with FSIS data and information relevant to their controls for L. monocytogenes. Additionally, the new regulations permit an establishment to make claims on the labels of the RTE products regarding the processes used to eliminate or reduce L. monocytogenes or suppress or limit its growth in the products.

The workshops are designed to provide an overview of the final rule to owners and managers of small and very small Federal and State establishments. In addition, the workshops will give all stakeholders a more in-depth understanding of the three compliance alternatives, the sampling provisions, recordkeeping requirements, the use of labeling claims, how to comply with the validation provisions of the regulations, and how to prepare supporting documentation for their hazard analyses. The meeting will also provide the opportunity to discuss additional ways of ensuring that small and very small plants receive the assistance they need to successfully respond to the final rule.

Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to better ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it and make copies of this Federal Register publication available through the FSIS Constituent Update. FSIS provides a weekly Constituent Update, which is communicated via Listserv, a free e-mail subscription service. In addition, the update is available on-line through the FSIS Web page located at http://www.fsis.usda.gov. The update is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, recalls, and any other types of information that could affect or would be of interest to our constituents/stakeholders. The constituent Listserv consists of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals that have requested to be included. Through the Listserv and Web page, FSIS is able to provide information to a much broader, more diverse audience.

For more information contact the Congressional and Public Affairs Office, at (202) 720-9113. To be added to the free e-mail subscription service (Listserv) go to the “Constituent Update” page on the FSIS Web site at http://www.fsis.usda.gov/oa/update/update.htm. Click on the “Subscribe to the Constituent Update Listserv” link, then fill out and submit the form.

When Federal Election Commission attorneys take a deponent's sworn testimony at an enforcement deposition authorized by 2 U.S.C. 437d(a)(4), only the deponent and his or her counsel may attend. Under historic practice, the deponent has the right to review and sign the transcript. 11 CFR 111.12(c) (applying Fed. R. Civ. P. 30(e) to Commission enforcement depositions). However, a deponent who is also a respondent is not currently allowed to obtain a copy of, or take notes when reviewing, his or her own transcript unless and until the General Counsel has transmitted, pursuant to 2 U.S.C. 437g(a)(3), a brief recommending that the Commission find probable cause to believe that the respondent has violated or is about to violate the Federal Election Campaign Act of 1971, as amended (“the Act”), or Chapters 95 or 96 of Title 26, U.S. Code. The Office of General Counsel does not currently offer other deponents an opportunity to obtain their transcripts; once the entire matter has been closed, other deponents can copy the transcript at their own expense if the transcript is made part of the public record.

The Commission recently invited the public to comment on various aspects of the agency's enforcement practices, including whether and when transcripts of depositions should be released and to whom. See “Enforcement Procedures,” Notice 2003-9, 68 FR 23311 (May 1, 2003). One possible change in practice included in the notice was for the Office of General Counsel to routinely allow deponents who are also respondents to procure immediately a copy of their own transcripts unless, on a case-by-case basis, the General Counsel concluded (or the Commission concluded, on the recommendation of the General Counsel) that it was necessary to the successful completion of the investigation to withhold the transcript until completion of the investigation.

On June 11, 2003, the Commission held a public hearing on its enforcement practices. At the hearing, counsel for the regulated community suggested changes to the agency's enforcement procedures, including its deposition policy. Some of those testifying suggested that deponents be allowed to obtain copies of their own depositions immediately after the deposition, contrary to the historic practice. Several of these commenters also noted that the Commission's practice regarding depositions contrasts with that of some other civil law enforcement agencies during the investigative stage of their proceedings.

The Commission is governed, in part, by the Administrative Procedure Act (APA). Under the APA, “[a] person compelled to submit data or evidence is entitled to retain or, on payment of lawfully proscribed costs, procure a copy or transcript thereof, except that in a nonpublic investigatory proceeding the witness may for good cause be limited to inspection of the official transcript of his testimony.” 5 U.S.C. 555(c). One example of “good cause” recognized by courts is a concern that witnesses still to be examined might be coached. See Commercial Capital Corp. v. SEC , 360 F.2d 856, 858 (7th Cir. 1966). In the past, all open investigations have been considered as falling within the APA's good-cause exception based on the potential for deponents to share their testimony with third parties. The Commission and its Office of General Counsel have also been mindful of the Federal Election Campaign Act's requirement that ongoing investigations be kept confidential. 1

Other federal agencies that conduct nonpublic investigations have adopted policies that interpret the APA's good-cause exception more narrowly. For example, in 1964 the Federal Communications Commission adopted a policy whereby: “In any matter pending before the Commission, any person submitting data or evidence, whether acting under compulsion or voluntarily, shall have the right to retain a copy thereof, or to procure a copy * * * of any transcript made of his testimony, upon payment of the charges therefor to the person furnishing the same, which person may be designated by the Commission. The Commission itself shall not be responsible for furnishing the copies.” 47 CFR 1.10. In 1972, the Securities and Exchange Commission adopted its current rule on this subject, which is similar to the FCC's. See 17 CFR 203.6. Likewise, the practice of the Commodity Futures Trading Commission is governed by 17 CFR 11.7(b), which states: “A person compelled to submit data or evidence in the course of an investigatory proceeding shall be entitled to retain or, upon payment of appropriate fees * * * procure a copy or transcript thereof, except that the witness may for good cause be limited to inspection of the official transcript of his testimony.”

After carefully reviewing the comments submitted to it on this matter and considering the experience of other federal agencies regarding deposition transcripts in nonpublic investigations, the Commission hereby announces that, from the date of publication of this notice, it will permit deponents in enforcement matters to obtain, upon request to the Office of General Counsel, a copy of the transcript of their own deposition. The Commission has determined that it can maintain the integrity of its investigations even if current practice is altered, so long as access to transcripts may still be denied upon determination that good cause exists for doing so, and so long as third-party witnesses (or deponents who are also respondents in matters with multiple respondents) are granted access to their transcripts subject to the confidentiality requirements of the Act.

Accordingly, in all matters open and pending before the Commission on or after the date of publication of this notice, a deponent may, in writing, request a copy of his or her own deposition transcript. The request may be made at any time after the deposition concludes. The Office of General Counsel will review the request and, absent good cause to the contrary, it will notify the deponent and the court reporter in writing that the deponent may obtain a copy of the transcript, at his or her own cost, from the court reporter. If the Associate General Counsel or her deputy determined that there was reason to invoke the good-cause exception, this Office would notify the deponent and the Commission. This change would not in any way affect 11 CFR 111.12(c).

Discussion

What events have caused this AD? The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, recently notified FAA that an unsafe condition may exist on all Shorts Models SC-7 Series 2 and SC-7 Series 3 airplanes. The CAA reports that the Model SC-7 airframe has undergone structural evaluations that have resulted in the establishment of an airplane service life limit.

Modifications, inspections, and replacements of certain life limited items have been identified to further extend the life of the aircraft.

What is the potential impact if FAA took no action? The life limits, if not complied with, could result in failure of the primary structural components and possibly result in structural failure during flight.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all Shorts Models SC-7 Series 2 and SC-7 Series 3 airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on November 13, 2002 (67 FR 68779). The NPRM proposed to establish a technical service life for these airplanes and allow you to incorporate modifications, inspections, and replacements of certain life limited items to extend the life limits of these airplanes.

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

What is the commenter's concern? One commenter states that the proposed issuance of this AD serves no safety benefit since all of the U.S. registered airplanes affected are already in compliance with the referenced service information, and no accidents have been reported as a result of any structural failures. The commenter recommends that FAA not issue this AD. We infer that the commenter recommends that FAA withdraw the NPRM.

What is FAA's response to the concern? We do not concur that the AD serves no safety benefit and that we should withdraw the NPRM. The FAA does not have confirmation that all of the U.S. registered airplanes are in compliance with the referenced service information. In addition, imported aircraft need to have the AD stated for a records checks during issuance of an airworthiness certificate. The actions referenced in the service information are not required when the service life limits are reached, unless required by AD.

Therefore, the AD is necessary to ensure the life limits are required. We are not changing the final rule AD action as a result of this comment.

What is the commenter's concern? Ten commenters state that issuing the AD would result in economic hardship to them. Specifically, these commenters communicated the following:

We infer that the 10 commenters want FAA to withdraw the NPRM.

What is FAA's response to the concern? The FAA does not concur that the NPRM should be withdrawn because of economic impact. We have no way of determining the number or extent of inspections, repairs, and replacements that would be necessary based on the owner/operator and manufacturer developed life extension program for the affected airplanes noted in the NPRM. Further, it is the owners'/operators' responsibility to propose an alternative method of compliance that provides an acceptable level of safety.

We are not changing the final rule AD action as a result of theses comments.

What is the commenter's concern? Five commenters state that the comment period length was insufficient, that additional time is necessary to obtain technical information from the manufacturer, that there is no urgent safety condition indicating the need for this AD, and that more time is needed to propose a more comprehensive inspection program.

We infer that the five commenters want FAA to extend the comment period of the NPRM and delay issuance of the AD.

What is FAA's response to the concern? We disagree that the comment period for the NPRM should be extended. The comment period ended on December 23, 2002. However, FAA has always accepted late comments. Based on the timing of the final rule, the public had more than six extra months to comment on the NPRM. The FAA agrees that no urgent safety of flight condition existed; if an urgent safety of flight condition exists for this type design, we would have determined that this regulation is an emergency regulation that must be issued immediately and that must become effective prior to public comment. Owners/operators who want to propose a more comprehensive inspection program are free to work with the manufacturer to develop a life extension program for the affected airplane(s) and submit a plan to the FAA as an alternative method of compliance.

We are not changing the final rule AD action as a result of these comments.

What is the commenter's concern? Six commenters state that inadequate/incorrect supporting data had been cited or used in the development of the NPRM, as follows:

What is FAA's response to the concern? The FAA disagrees that inadequate or incorrect supporting data has been considered in the development of the NPRM. Under the bilateral airworthiness agreement between the United Kingdom and the United States, the airworthiness authority (after coordination with the manufacturer), notified FAA that an unsafe condition exists or could develop on all Shorts Models SC-7 Series 2 and SC-7 Series 3 airplanes. The airworthiness authority reported that the Model SC-7 airframe has undergone structural evaluations that have resulted in the establishment of an airplane service life limit. Modifications, inspections, and replacements of certain life limited items were identified to further extend the life of the aircraft.

We have reviewed the available data and found the data adequate and correct. Therefore, we are not changing the final rule AD action as a result of these comments.

What is the commenter's concern? Several commenters state that the service difficulty history shows no structural problems of the type stated in the NPRM. We infer that the commenters feel the lack of a service difficulty history for the type design warrants the withdrawal of the NPRM.

What is FAA's response to the concern? The FAA disagrees that the lack of a service difficulty history is sufficient to justify the withdrawal of the NPRM. The manufacturer and the airworthiness authority have stated that the life limit should be reduced based on their analyses and technical expertise.

The FAA has examined these findings, reviewed all available information, and determined that AD action should be taken. Therefore, we are not changing the final rule AD action as a result of these comments.

What is the commenter's concern? Two commenters state that certain airplanes have an operational history profile (operating at lesser gross weight than considered by the manufacturer and foreign airworthiness authority) that does not warrant reduction in life limits as would be required in the AD. The FAA infers that commenters want the withdrawal of the proposed NPRM or adjustment of the life limits for certain aircraft of the affected type design.

What is FAA's response to the concern? The FAA disagrees that certain airplanes' operational history profiles warrant withdrawal of the NPRM or changes in the life limits. The manufacturer and the foreign airworthiness authority have determined that AD action is needed, and FAA confirms this need for AD action.

The owners/operators of affected airplanes are free to work with the manufacturer to develop a life extension program for the affected airplanes and submit a plan to the FAA.

We are not changing the final rule AD action as a result of these comments.

What is the commenter's concern? The commenter states the argument that the manufacturer should not be using a 35-year old safe life process to determine life limits for aircraft of this type design. Further, newer non-destructive inspection (NDI) techniques are available. The FAA infers that the commenter wants the NPRM withdrawn or increased life limits for certain aircraft.

What is FAA's response to the concern? We disagree that the NPRM should be withdrawn or that there should be increased life limits for certain aircraft. Although newer NDI techniques do exist, no NDI procedures have been proposed for this issue that we have determined will detect the fatigue before it occurs. We will consider NDI procedures proposed as part of an alternative method of compliance.

We are not changing the final rule AD action as a result of this comment.

What is the commenter's concern? One commenter states that FAA has not provided FOIA requested information. We infer that the commenter wants the NPRM withdrawn or a supplemental NPRM issued with the public allowed to review the requested information and to provide public comments with a new comment period.

What is FAA's response to the concern? The FAA disagrees that the NPRM should be withdrawn or a supplemental NPRM issued. The FAA handles FOIA requests independently of ADs. We have determined that an unsafe condition exists and that AD action is necessary to correct it.

Therefore, we are not changing the final rule AD action as a result of this comment.

What is the commenter's concern? Commenters state that all affected airplanes have incorporated the requirements of the referenced service information. Also, one service bulletin was issued in 1978. FAA infers that the commenters believe the NPRM should be withdrawn because they believe all airplanes in the United States have complied with the service information and the service bulletin issued in 1978 without a related AD action until now.

What is FAA's response to the concern? The FAA disagrees that the NPRM should be withdrawn. Assurance that all airplanes are in compliance with service information is not justification to not issue an AD. The original type certificate did not include service life limits. The only way to mandate these limits on all airplanes, including those getting future airworthiness certificates, is through AD action.

We are not changing the final rule AD action as a result of these comments.

What is the commenter's concern? The commenter states that, because the aircraft looks good and has been operated under favorable conditions, (1) there should be an in-depth study of the AD; (2) initial life limits for the aircraft should be 30,000 cycles; and (3) a recommended plan of inspection should be implemented. The FAA infers that the commenter wants the NPRM withdrawn or a supplemental NPRM issued with a life limit of 30,000 cycles and a recommended plan of inspection proposed.

What is FAA's response to the concern? We disagree that the NPRM should be withdrawn or a supplemental NPRM issued. We have determined that the AD as proposed addresses the unsafe condition. The referenced life extension program could be proposed as an alternative method of compliance provided details are included that show an acceptable level of safety. A detailed method and thresholds for cracks and inspection intervals would have to be proposed.

We are not changing the final rule AD action as a result of these comments.

What is FAA's final determination on this issue? After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We have determined that these minor corrections:

How many airplanes does this AD impact? We estimate that this AD affects 22 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? The impact of this AD will be not being able to operate the airplane past the established service life limit. The following paragraphs present cost if you choose to extend the life limit.

We estimate the following costs to accomplish the aircraft life extension prescribed in Shorts Service Bulletin No. 51-51 on 19 aircraft:

We estimate the following to accomplish the aircraft life extension prescribed in Shorts Service Bulletin No. 51-52 for the 6 aircraft serial numbers 1845, 1847, 1883, 1889, 1943, and 1960:

Three of these 6 airplanes will also incorporate Shorts Service Bulletin No. 51-51 and are part of the 19 airplanes subset of the total set of 22 airplanes in the U.S. registry.

What would be the compliance time of this AD? The compliance time of this AD is upon accumulating the applicable life limit or within the next 90 days after the effective date of this AD, whichever occurs later.

Why is the compliance time of this AD presented in flights, hours TIS and calendar time? The unsafe condition on these airplanes is a result of the combination of the number of times the airplane is operated and how the airplane is operated (for example, weight carried). Airplane operation varies among operators. For example, one operator may operate the airplane 100 flights or 50 hours TIS in 3 months and carrying low weights while it may take another operator 12 months or more to accumulate 100 flights or 50 hours TIS while carrying heavy weights. For this reason, we have determined that the compliance time of this AD will be specified in flights, hours time-in-service (TIS), and calendar time in order to assure this condition is not allowed to go uncorrected over time.

Does this AD impact various entities? The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

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

Has FAA taken any action to this point? A ground fire on the left-hand engine nacelle caused by a cracked crossfeed valve that had leaked fuel on a PIAGGIO Model P-180 airplane caused FAA to issue AD 2003-03-14, Amendment 39-13038 (68 FR 5815, February 5, 2003).

AD 2003-03-14 currently requires you to inspect and determine whether any firewall shutoff or crossfeed valve with a serial number in a certain range is installed and requires you to replace or modify any valve that has a serial number within this range. The modification consisted of reworked valves that were re-identified with an “A” at the end of the serial number. This AD allows the pilot to check the logbook and does not require the inspection and replacement requirement if the check shows that one of these valves is definitely not installed.

What has happened since AD 2003-03-14 to initiate this proposed action? The Ente Nazionale per l' Aviazione Civile (ENAC), which is the airworthiness authority for Italy, recently notified FAA of the need to change AD 2003-03-14. The ENAC reports that the valve manufacturer was not correctly incorporating the modification on reworked valves and that these modified valves need to be replaced.

Is there service information that applies to this subject? PIAGGIO has issued Service Bulletin No. ASB80-0191, dated February 27, 2003. Included as part of this service bulletin is Electromech Technologies SB 484-3 AB, dated February 18, 2003.

What are the provisions of this service information? The service information includes:

—A list of those Electromech part number (P/N) fuel valves that are affected by the unsafe condition;

—Procedures for determining whether one of the affected fuel valves is installed; and

—Instructions for replacing or modifying any affected fuel valve.

What action did the ENAC take? The ENAC classified this service bulletin as mandatory and issued Italian RAI-AD 2003-119, dated April 3, 2003, in order to ensure the continued airworthiness of these airplanes in Italy.

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

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

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

—The unsafe condition referenced in this document exists or could develop on other PIAGGIO Model P-180 airplanes of the same type design that are on the U.S. registry;

—The fuel valves modified per AD 2003-03-14 should also be replaced;

—The actions specified in the previously-referenced service information should be accomplished on the affected airplanes; and

—AD action should be taken in order to correct this unsafe condition.

What does this AD require? This AD supersedes AD 2003-03-14 with a new AD that requires you to replace any firewall shutoff or crossfeed valve with a serial number in a certain range even if it has been modified per AD 2003-03-14.

How does the revision to 14 CFR part 39 affect this AD? On July 10, 2002, FAA published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs FAA's AD system. This regulation now includes material that relates to special flight permits, alternative methods of compliance, and altered products. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

Will I have the opportunity to comment prior to the issuance of the rule? Because the unsafe condition described in this document could result in an engine fire, we find that notice and opportunity for public prior comment are impracticable. Therefore, good cause exists for making this amendment effective in less than 30 days.

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

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

How can I be sure FAA receives my comment? If you want us to acknowledge the receipt of your comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2003-CE-30-AD.” We will date stamp and mail the postcard back to you.

Why is the compliance time presented in calendar time instead of hours time-in-service (TIS)? The compliance of this AD is presented in calendar time instead of hours TIS because the affected shutoff and crossfeed valves are unsafe as a result of a quality control problem. The problem has the same chance of existing on an airplane with 50 hours TIS as it would for an airplane with 1,000 hours TIS. Therefore, FAA has determined that the compliance time of this AD should be presented in calendar time.

Does this AD impact various entities? These regulations will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, FAA has determined that this final rule does not have federalism implications under Executive Order 13132.

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

Document Availability: 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.

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.

User assistance is available for FERRIS and the FERC's Web site during normal business hours from our Help line at (202) 502-8222 or the Public Reference Room at (202) 502-8371 Press 0, TTY (202) 502-8659. E-Mail the Public Reference Room at public.referenceroom@ferc.gov .

The Federal Energy Regulatory Commission (Commission) is issuing this notice to update filing fees that the Commission assesses for specific services and benefits provided to identifiable beneficiaries. Pursuant to 18 CFR 381.104, the Commission is establishing updated fees on the basis of the Commission's Fiscal Year 2002 costs. The adjusted fees announced in this notice are effective September 22, 2003. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this final rule is not a major rule within the meaning of section 251 of Subtitle E of Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2). The Commission is submitting this final rule to both houses of the United States Congress and to the Comptroller General of the United States.

The new fee schedule is as follows:

Background

Generally, a civil aircraft arriving from a place outside of the United States is required to land at an airport designated as an international airport. Alternatively, the pilot of a civil aircraft may request permission to land at a specific airport and if landing rights are granted, the civil aircraft may land at that landing rights airport.

Section 236 of Pub. L. 94-573 (the Trade and Tariff Act of 1984), codified at 19 U.S.C. 58b, created an option for civil aircraft desiring to land at an airport other than an international or landing rights airport. A civil aircraft arriving from a place outside of the United States may ask for permission to land at an airport designated by the Secretary of the Treasury as a user fee airport.

Pursuant to 19 U.S.C. 58b, an airport may be designated as a user fee airport if the Secretary of the Treasury determines that the volume of business at the airport is insufficient to justify the availability of customs services at the airport and the governor of the state in which the airport is located approves the designation. Generally, the type of aircraft that would seek designation as a user fee airport would be one at which a company, such as an air courier service, has a specialized interest in regularly landing.

As the volume of business anticipated at this type of airport is insufficient to justify its designation as an international or landing rights airport, the availability of customs services is not paid for out of appropriations from the general treasury of the United States. Instead, the customs services are provided on a fully reimbursable basis to be paid for by the user fee airport on behalf of the recipients of the services.

The fees which are to be charged at user fee airports, according to the statute, shall be paid by each person using the customs services at the airport and shall be in the amount equal to the expenses incurred by the Secretary of the Treasury in providing customs services which are rendered to such person at such airport, including the salary and expenses of those employed by the Secretary of the Treasury to provide the customs services. To implement this provision, generally, the airport seeking the designation as a user fee airport or that airport's authority agrees to pay a flat fee annually and the users of the airport are to reimburse that airport/airport authority. The airport/airport authority agrees to set and periodically to review the charges to ensure that they are in accord with the airport's expenses.

Sections 403(1) and 411 of the Homeland Security Act of 2002 (“the Act,” Pub. L. 107-296) transferred the United States Customs Service and its functions from the Department of the Treasury to the Department of Homeland Security; pursuant to section 1502 of the Act, the President renamed the “Customs Service” as the “Bureau of Customs and Border Protection,” also referred to as the “CBP.”

The Commissioner of CBP, pursuant to § 122.15, Customs Regulations (19 CFR 122.15) designates airports as user fee airports pursuant to 19 U.S.C. 58b. Section 122.15 sets forth the list of designated user fee airports.

Thirty seven airports are currently listed in § 122.15. This document revises the list of user fee airports. It adds Williams Gateway Airport in Mesa, Arizona, and Roswell Industrial Air Center in Roswell, New Mexico, to this listing of designated user fee airports. It also corrects the location of McKinney Municipal Airport from Dallas, Texas, to McKinney, Texas.

Because no notice of proposed rulemaking is required for this final rule, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply. Agency organization matters such as this amendment are exempt from consideration under Executive Order 12866.

Because this amendment merely updates and corrects the list of user fee airports designated by the Commissioner of CBP in accordance with 19 U.S.C. 58b and neither imposes any additional burdens on, nor takes away any existing rights or privileges from, the public, pursuant to 5 U.S.C. 553(b)(B), notice and public procedure are unnecessary, and for the same reasons, pursuant to 5 U.S.C. 553(d)(3) a delayed effective date is not required.

The principal author of this document was Janet L. Johnson, Regulations Branch, Office of Regulations and Rulings, CBP. However, personnel from other offices participated in its development.

The International Organizations Immunities Act (the Act) (22 U.S.C. 288 et seq. ) generally provides that certain international organizations, agencies, and committees, in which the United States participates or otherwise has an interest and which have been designated by the President through appropriate Executive Order as public international organizations, are entitled to enjoy certain privileges, exemptions, and immunities conferred by the Act. The Department of State lists the public international organizations, designated by the President as entitled to enjoy any measure of the privileges, exemptions, and immunities conferred by the Act, in the notes following the provisions of Section 288.

One of the privileges provided for under the Act at 22 U.S.C. 288a is that the baggage and effects of alien officers, employees, and representatives—and their families, and servants—to the designated organization, are admitted free of duty and without entry. Those designated organizations entitled to this duty-free entry privilege are delineated at § 148.87(b), Customs Regulations (19 CFR 148.87(b)). Thus, the list of public international organizations maintained by Customs and Border Protection (CBP) is for the limited purpose of identifying those organizations entitled to the duty-free entry privilege; it does not necessarily include all of the organizations that are on the list maintained by the Department of State, which delineates all of the international organizations designated by the President regardless of the extent of the privileges conferred.

The last revision of the list of public international organizations at § 148.87(b) was in 1996 (T.D. 96-23), when the total number of designated international organizations became 69. Since 1996, eight Executive Orders have been issued each designating a new public international organization, as follows:

1. Executive Order 12956 of March 13, 1995, 60 FR 14199, 3 CFR 1996 Comp., p. 332, 31 Weekly Comp.Pres.Doc. 408, designated the Israel-United States Binational Industrial Research and Development Foundation;

2. Executive Order 12986 of January 18, 1996, 61 FR 1693, 3 CFR 1997 Comp., p. 156, 32 Weekly Comp.Pres.Doc. 77, designated the International Union for Conservation of Nature and Natural Resources with limited privileges; certain privileges, regarding immunity from suit and judicial process and search and seizure, were not extended;

3. Executive Order 12997 of April 1, 1996, 61 FR 14949, 3 CFR 1997 Comp., p. 179, 32 Weekly Comp.Pres.Doc. 596, designated the Korean Peninsula Energy Development Organization;

4. Executive Order 13042 of April 9, 1997, 62 FR 18017, 73 CFR 1998 Comp., p. 194, 33 Weekly Comp.Pres.Doc. 492, designated the World Trade Organization;

5. Executive Order 13049 of June 11, 1997, 62 FR 32472, 3 CFR 1998 Comp., p. 206, 33 Weekly Comp.Pres.Doc. 857, designated the Organization for the Prohibition of Chemical Weapons;

6. Executive Order 13052 of June 30, 1997, 62 FR 35659, 3 CFR 1998 Comp., p. 210, 33 Weekly Comp.Pres.Doc. 998, designated the Hong Kong Economic and Trade Offices;

7. Executive Order 13097 of August 7, 1998, 63 FR 43065, 3 CFR 1999 Comp., p. 205, 34 Weekly Comp.Pres.Doc. 1588, designated the Interparliamentary Union; and

8. Executive Order 13240 of December 18, 2001, 66 FR 66257, 3 CFR 2002 Comp., p. 824, 37 Weekly Comp.Pres.Doc. 1813, designated the Council of Europe in Respect of the Group of States Against Corruption (GRECO).

This brings the total number of designated international organizations listed at § 148.87(b) to 77. Accordingly, CBP is amending its list of designated public international organizations at § 148.87(b) to account for these eight additions.

This document also corrects an editorial error, i.e. , an international organization designated by T.D. 96-13 is incorrectly referenced; thus, the reference to the Border Environmental Cooperation Commission should read the Border Environment Cooperation Commission.

Because this amendment merely corrects the listing of designated organizations entitled by law to free entry privileges as public international organizations, pursuant to 5 U.S.C. 553(b)(B), good cause exists for dispensing with notice and public procedure thereon as unnecessary. For the same reason, good cause exists for dispensing with a delayed effective date under 5 U.S.C. 553(d) (1) and (3). Since this document is not subject to the notice and public procedure requirements of 5 U.S.C. 553, it is not subject to provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This document does not meet the criteria for a “'significant regulatory action”' as specified in E.O. 12866.

The principal author of this document was Gregory R. Vilders, Attorney, Regulations Branch, Office of Regulations and Rulings.

Section 313 of the Tariff Act of 1930, as amended, (19 U.S.C. 1313), concerns drawback and refunds. Drawback is a refund of certain duties, taxes and fees paid by the importer of record and granted to a drawback claimant upon the exportation, or destruction under Customs supervision, of eligible articles. The purpose of drawback is to place U.S. exporters on equal footing with foreign competitors by refunding most of the duties paid on imports used in domestic manufactures intended for export.

There are several types of drawback. Under section 1313(b), a manufacturer can recoup duties paid for imported merchandise if it uses merchandise of the same kind and quality to produce exported articles pursuant to the terms of the statute. Section 1313(b) reads, in pertinent part:

Manufacturing substitution drawback is intended to alleviate some of the difficulties in accounting for whether imported merchandise has, in fact, been used in a domestic manufacture. Section 1313(b) permits domestic or other imported merchandise to be used to make the export article, instead of the actual imported merchandise, so long as the domestic or other imported merchandise is of the “same kind and quality” as the actual imported merchandise.

Several recent court cases have examined the scope of the term “same kind and quality” as used in 19 U.S.C. 1313(b). See E.I. DuPont De Nemours and Co. v. United States, 116 F. Supp. 2d 1343 (Ct. Int'l Trade 2000). See also International Light Metals v. United States, 194 F.3d 1355 (Fed. Cir. 1999). In these cases, the courts held that a chemical element that is contained in an imported material that is dutiable on its value may be designated as same kind and quality merchandise for purposes of manufacturing substitution drawback pursuant to 19 U.S.C. 1313(b). The holding in DuPont necessitates apportionment as a necessary method of claiming a drawback entitlement under these circumstances. DuPont, 116 F. Supp. 2d at 1348-49.

On July 24, 2002, Customs and Border Protection (CBP), as its predecessor agency, the Customs Service, promulgated interim amendments to the Customs Regulations, published in the Federal Register (67 FR 48368) as T.D. 02-38, to implement the courts' holdings in DuPont and ILM. The interim amendments to the Customs Regulations were made to § 191.26 (19 CFR 191.26), which sets forth the recordkeeping requirements for manufacturing drawback. Paragraph (b) of this section describes the recordkeeping requirements for substitution drawback.

To implement the courts' interpretation of 19 U.S.C. 1313(b), T.D. 02-38 amended § 191.26(b) by adding language that explains how to apportion the duty attributable to same kind and quality chemical elements contained in ad valorem duty-paid imported materials for purposes of manufacturing substitution drawback. T.D. 02-38 also amended § 191.26(b) to provide an example of apportionment calculations.

In order for a drawback claimant to be able to ascertain what portion of the ad valorem duty paid on imported merchandise is attributable to a chemical element contained in the merchandise, an apportionment calculation is necessary. First, if the imported duty-paid material is a compound with other constituents, including impurities, and the purity of the compound in the imported material is shown by satisfactory analysis, that purity, converted to a decimal equivalent of the percentage, is multiplied against the entered amount of the material to establish the amount of pure compound. The amount of the element in the pure compound is to be determined by use of the atomic weights of the constituent elements, converting to the decimal equivalent of their respective percentages, and multiplying that decimal equivalent against the above-determined amount of pure compound. Second, the amount claimed as drawback based on a contained element must be taken into account and deducted from the duty paid on the imported material that may be claimed on any other drawback claim.

Five commenters responded to the solicitation of public comment published in T.D. 02-38. A description of the comments received, together with CBP's analyses, is set forth below.

Comment: Several commenters disagreed with CBP's interpretation that the court decisions in DuPont and ILM require an apportionment calculation to determine the proper drawback entitlement.

CBP's response: CBP maintains its view that the holdings in DuPont and ILM necessitate apportionment of the duty attributable to a chemical element contained in an ad valorem duty-paid imported material if this chemical element is the designated good in a drawback claim under 19 U.S.C. 1313(b). As noted above, the CAFC in ILM and the CIT in DuPont examined the scope of the term “same kind and quality” as used in 19 U.S.C. 1313(b) and determined that a chemical element contained in an imported material that is dutiable on its value may be designated as same kind and quality merchandise for purposes of manufacturing substitution drawback. In ILM, the CAFC stated that as there was “* * * no dispute as to the amount of titanium that was used in the scrap * * * the amount of drawback to which ILM would be entitled based upon the titanium in that scrap and the titanium in the imported sponge could be precisely determined.” Similarly, in DuPont, the CIT noted that because the amount of titanium in the feedstocks can be accurately determined, substitution of another feedstock for synthetic rutile is permitted. If either the CAFC or the CIT intended drawback to be permitted on all the titanium-containing raw materials, the courts would not have emphasized that calculation of the amount of titanium contained in the raw materials entitled the claimant to a specific amount of drawback. The courts clearly recognized that apportionment by relative weight was necessary to prevent the overpayment of drawback.

Comment: Several commenters noted that if apportionment is required, apportionment by relative value is a more appropriate calculation method than apportionment by relative weight. In a related comment, one commenter suggested that a drawback claimant should have the option to apportion duty using either relative value or relative weight.

CBP's response: CBP disagrees. As discussed above, the courts in both ILM and DuPont require apportionment by relative weight. Both of these courts held that the quantity, and not the value, of the sought material (the titanium) could be determined and consequently the amount of drawback could be determined. Moreover, there is no authority to apportion duty by relative value for a drawback claim per 19 U.S.C. 1313(b) when only one good results from the processing of the imported merchandise. If the sought material, i.e. , the titanium, was divided to make two articles, then relative value apportionment would be required.

Comment: One commenter submitted that apportionment by relative weight contradicts the drawback statute (19 U.S.C. 1313) because this section, at paragraph (a), provides drawback upon the “exportation or destruction under custom supervision of articles manufactured or produced in the United States with the use of imported merchandise, * * *.” The commenter noted that the sought element in DuPont (the titanium) is neither “used” nor “imported” because it is the feedstock containing the titanium that is “imported” and “used” within the meaning of section 1313(b). Another commenter stated that section 1313(b) provides no legal basis for apportionment under these circumstances.

CBP's response: CBP disagrees. The plain language of 19 U.S.C. 1313(b) permits drawback to be paid only on the sought element, and the sought element in both ILM and DuPont was the titanium. Section 1313(b) provides that an amount of drawback equal to that which would have been allowable had the merchandise used therein been imported is payable if imported duty-paid merchandise and any other merchandise (whether imported or domestic) of the same kind or quality are used in the manufacture or production of articles subsequently exported or destroyed. Clearly, per 19 U.S.C. 1313(b), the merchandise upon which drawback may be paid is the merchandise characterized as “same kind and quality.” It cannot be said that the various feedstocks used to provide the sought element in those cases are of the “same kind and quality,” but only that the titanium, as a discrete element contained in the feedstocks, was of the “same kind and quality” as required by section 1313(b). In ILM , the CAFC makes clear that the merchandise of the “same kind and quality” required by 19 U.S.C. 1313(b) was the sought element, titanium, and not the various feedstocks. ILM , 194 F.3d 1355 at 1367. Additionally, in applying the three factors promulgated by the CAFC in ILM , the CIT in Dupont stated:

Dupont , at 1348. Therefore, the court held that the titanium is the designated merchandise. Since titanium is an element, and an element is measured by its weight, apportionment by relative weight is required. Consequently, the apportionment of the duty attributable to a chemical element contained in ad valorem duty-paid imported merchandise must be calculated by the relative weights of the sought element and the feedstock used.

Comment: One commenter stated that since T.D. 82-36 (16 Cust. B. & Dec. 97, February 26, 1982) is specific as to “how to determine the quantity of imported merchandise to be designated, and therefore, the basis for the allowance of drawback,” apportionment by weight is not mandated by the court decisions.

CBP's response: CBP disagrees. The CAFC in ILM stated:

It is additionally noted that the ILM and the Dupont Courts found that the designated material was titanium, an element. The amount of an element is calculated by its weight.

Comment: One commenter suggested that since the drawback claimant does not separate the sought element from the feedstock, then it is the feedstock and not the sought element that must be the imported merchandise designated for drawback.

CBP response: CBP disagrees. The courts in ILM and Dupont held that the element was the material that met the same kind and quality requirement and therefore the element was the designated merchandise. The CAFC in ILM noted that it was not necessary to extract the sought element from the feedstock, and stated “* * * we see no reason why ILM should be required to undertake such an additional step [of extracting the titanium from the scrap] * * *” Both the ILM and Dupont Courts determined that since the amount of the sought element (the titanium) could be precisely determined, it was unnecessary to require that it be extracted as a discrete element before drawback was payable.

Comment: One commenter stated that CBP was incorrectly using the “same kind and quality” test to apportion the duties because this standard is only used for determining whether imported goods may be substituted for other goods.

CBP response: CBP disagrees. As discussed above, the only merchandise upon which drawback may be paid as per 19 U.S.C. 1313(b) is the imported duty-paid and designated merchandise characterized as “same kind and quality.” In ILM , the CAFC unequivocally stated that the merchandise of the “same kind and quality” required by section 1313(b) is the sought element—not the various feedstocks. ILM at 1367. Therefore, the CAFC found that the sought element, the titanium, was of the same kind and quality and thus only the titanium could be the designated merchandise.

Comment: One commenter stated that CBP's example of the apportionment calculation set forth in § 191.26(b)(4) is incorrect, and noted that CBP applies the $0.011 factor to each pound of titanium. The commenter submits that, in fact, each pound of material in the imported synthetic rutile, be it titanium, oxygen, or impurities, bears the same $0.02 duty.

CBP response: CBP agrees. The example in the interim amendments to § 191.26(b)(4), set forth in T.D. 02-38, is inconsistent with the liquidation instructions on which it was to have been based. Since the total duty on the imported synthetic rutile includes duty on its titanium content, the calculation should be $600 duty paid divided by 30,000 pounds synthetic rutile ($600 ÷ 30,000 = .02) duty per pound of imported rutile. Therefore, the example set forth in § 191.26(b)(4) is amended accordingly and set forth below in the regulatory text section of this document.

Comment: One commenter suggested that apportioning duty based on weight “encourages uneconomical activities, such as the export of waste and impurities in order to obtain drawback that would be due under value based methodologies.” The same commenter noted that this exportation of waste would result in an overpayment of duty and a doubling of drawback claims because each drawback claimant would file an additional claim for waste.

CBP response: CBP disagrees. No waste is generated from the designated merchandise, i.e. , the titanium. Additionally, even if waste were generated, it has been CBP's position based on long-standing court decisions that drawback is not allowable on the exportation of waste. In United States v. Dean Linseed-Oil Co., 87 Fed. 453, 456 (2nd Cir. 1898), cert. den., 172 U.S. 647 (1898), the court implicitly accepted the government's position that drawback was unavailable on the exportation of waste. CBP has continuously followed this position. See Precision Specialty Metals, Inc. v. United States, 116 F.Supp. 2d 1350 (Ct. Int'l Trade (2001).

Comment: One commenter stated that apportioning the duty by weight will be administratively difficult and burdensome. Another commenter stated that all the information necessary to perform the duty calculation required by § 191.26(b), as amended by T.D. 02-38, is not on the manufacturing certificate.

CBP response: The court instructed CBP to make the calculation to properly administer the statute. Therefore, CBP must follow the court's decision regardless of whether the requisite calculation is burdensome.

After analysis of the comments and further review of the matter, CBP has determined to adopt as a final rule, with the changes mentioned in the comment discussion and with additional non-substantive editorial changes, the interim rule published in the Federal Register (67 FR 48368) on July 24, 2002, as T.D. 02-38.

These regulations serve to add apportionment language to the Customs Regulations necessitated by recent decisions of the Court of International Trade and the Court of Appeals for the Federal Circuit, and to finalize an interim rule that is already in effect. In addition, the regulatory changes serve to benefit the public by providing specific information as to how a drawback claimant is to correctly make the requisite duty apportionment calculations when claiming manufacturing substitution drawback for a chemical element contained in ad valorem duty-paid imported merchandise. For these reasons, pursuant to the provisions of 5 U.S.C. 553(d)(1) and (3), CBP finds that there is good cause for dispensing with a delayed effective date.

Because no notice of proposed rulemaking was required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply. Further, these amendments do not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866.

The principal author of this document was Ms. Suzanne Kingsbury, Regulations Branch, Office of Regulations and Rulings, Bureau of Customs and Border Protection. However, personnel from other offices participated in its development.

On June 9, 1998, the Transportation Equity Act for the 21st Century (TEA-21) was signed into law. Section 1404 of the Act established a $500 million incentive grant program under 23 U.S.C. 163 to encourage States to adopt effective 0.08 BAC laws. Section 163 provided that the Secretary of Transportation shall make a grant to any State that has enacted and is enforcing a law that provides that any person with a BAC of 0.08 percent or greater while operating a motor vehicle in the State shall be deemed to have committed a per se offense of driving while intoxicated or an equivalent per se offense.

On September 3, 1998, NHTSA and the FHWA (the agencies) published a joint interim final rule, establishing the criteria that States must meet and the procedures they must follow to qualify for an incentive grant. See 63 FR 46881. On July 1, 1999, after considering the comments filed in response to the interim final rule, the agencies published a final rule implementing the Section 163 incentive grant program. See 64 FR 35568.

Before the Section 163 incentive grant program was signed into law, only 16 States had enacted laws that established 0.08 BAC as their per se limit. Between June 1998 and October 2000, only two additional States and the District of Columbia enacted and began enforcing 0.08 BAC laws that met all the Section 163 criteria.

In an effort to further reduce impaired driving injuries and fatalities, Congress created a new 0.08 BAC program in the DOT Appropriations Act of FY 2001. See Public Law 106-346—Appendix, sec. 351, 114 Stat. 1356A-34, 35. Section 351 of Public Law 106-346-Appendix (Section 351) provides for the withholding of Federal-aid highway funds from any State that has not enacted and is not enforcing a 0.08 BAC law by the beginning of FY 2004. This legislation did not alter the incentive grant program, which was established in TEA-21. That program will continue through FY 2003.

The DOT Appropriations Act of FY 2001 was signed into law on October 23, 2000. Since that date, twenty-six additional States have enacted conforming 0.08 BAC laws. As of August 15, 2003, forty-four States, the District of Columbia and the Commonwealth of Puerto Rico have enacted 0.08 BAC laws that meet all the requirements of Section 163. 1 See Table 1.

On February 6, 2003, the agencies published a notice of proposed rulemaking (NPRM) in the Federal Register to define the criteria to be applied to determine what constitutes a valid 0.08 BAC law for purposes of the statute (68 FR 6091). The statute requires the Secretary to withhold from apportionment a portion of Federal-aid highway funds from any State that does not meet the Section 163 requirements, beginning on October 1, 2003. To avoid such withholding, a State must enact and enforce a law that provides that any person with a BAC of 0.08 percent or greater while operating a motor vehicle in the State shall be deemed to have committed a per se offense of driving while intoxicated or an equivalent per se offense. The Secretary has delegated the authority to define conforming 0.08 BAC laws to NHTSA and the authority to implement the 0.08 BAC sanction program to the FHWA.

As required by statute, if any State has not enacted and is not enforcing a conforming 0.08 BAC law by October 1, 2003, two percent of its FY 2004 Federal-aid highway apportionment under 23 U.S.C. 104(b)(1), 104(b)(3) and 104(b)(4) shall be withheld. These sections relate to the apportionments for the National Highway System, the Surface Transportation Program and the Interstate System (including resurfacing, restoring, rehabilitating and reconstructing the interstate system). The amount withheld would increase by two percent each year, until it reaches eight percent in FY 2007 and thereafter.

In the NPRM, the agencies proposed that the same criteria that had been applied since 1998 to determine whether a State had enacted and made effective a conforming 0.08 BAC law under the Section 163 incentive grant program, be applied also to the Section 163 sanction program. See 64 FR 35568. To meet the Section 163 criteria, a conforming 0.08 BAC law must contain the following elements:

A State must enact and enforce a law that establishes a BAC limit of 0.08 or greater that applies to all persons. The law can provide for no exceptions.

A State must set a level of no more than 0.08 percent as the per se limit for blood or breath alcohol concentration, thereby making it an offense for any person to have a BAC of 0.08 or greater while operating a motor vehicle.

A State must consider persons who have a BAC of 0.08 percent or greater while operating a motor vehicle in the State to have committed a per se offense of driving while intoxicated. In other words, States must establish a 0.08 “per se” law, that makes operating a motor vehicle with a BAC of 0.08 percent or above, in and of itself, an offense.

A State must enact and enforce a 0.08 BAC law that provides for primary enforcement. Under a primary enforcement law, law enforcement officials have the authority to enforce the law without, for example, the need to show that they had probable cause or had cited the offender for a violation of another offense. Any State with a law that provides for secondary enforcement of its 0.08 BAC provision will not meet the requirements of this part.

A State must establish a 0.08 BAC per se level under its criminal code. In addition, if the State has an administrative license revocation or suspension (ALR) law, the State must establish an 0.08 BAC per se level under its ALR law, as well.

The State's 0.08 BAC per se law must be deemed to be or be equivalent to the State's standard driving while intoxicated offense; that is, the State's non-BAC per se driving while intoxicated offense in the State.

A more detailed discussion of the six elements described above is contained in the rulemaking for the incentive grant program. See 64 FR at 46883-84.

To demonstrate compliance with this rulemaking, the agencies proposed that States be required to submit conforming certifications to the appropriate NHTSA Regional Administrator on or before July 15, to receive an incentive grant in FY 2003; and on or before September 30, to avoid the withholding of funds in FY 2004 and subsequent fiscal years.

In addition, the NPRM proposed not to require States in compliance with the Section 163 incentive grant program in FY 2003 to submit additional certifications for FY 2004, unless their law/s had changed in the interim.

Each State initially determined to be in noncompliance would, under the proposal, have until September 30 to rebut the initial determination or to come into compliance. The State would be notified of the agencies' final determination of compliance or noncompliance and the amount of funds to be withheld as part of the final notice of apportionments (which normally is issued on October 1 of each year).

The NPRM proposed an incremental approach to the withholding of funds apportionment for noncompliance. Specifically, the NPRM proposed that if a State is found to be in noncompliance on October 1, 2003, the State would be subject to a two percent withholding of its FY 2004 apportionment on that date. If a State is found to be in noncompliance on October 1 of any subsequent fiscal year, the withholding percentage would increase by two percent each year, until it reached eight percent in FY 2007 and thereafter. See Table 2.

In addition, the NPRM proposed that any State that comes into compliance with the requirements of Section 163 on or before September 30, 2007, would have their withheld funds restored to them. However, if a State is not in compliance with the requirements of Section 163 on October 1, 2007, any funds withheld from apportionment to the State would begin to lapse and would no longer be available for apportionment.

The NPRM was published on February 6, 2003. The agencies received five comments in response to it. Comments were received from two State agencies and three concerned individuals. The State comments were submitted by Judy E. Brown, Chief of the Texas Department of Public Safety (TXDPS), Driver License Division, and Frank J. Busalacchi, Secretary for the Wisconsin Department of Transportation (WIDOT).

To ensure that States had a full opportunity to raise any Federalism concerns, the agencies conducted an outreach program aimed at eliciting comments on the possible Federalism implications of this rule.

Since the incentive grant program was signed into law, States have had continuous contact with the agencies. States that were considering passing 0.08 BAC legislation were encouraged to submit copies of their proposals to the agencies' regional offices for review and initial comment. These legislative proposals were then forwarded to NHTSA's Office of Chief Counsel (OCC) to determine compliance with the requirements of Section 163. During this review process, OCC staff and staff from the Office of Injury Control Operations and Resources (ICOR) interacted with different State employees and officials by telephone and through electronic mail. These communications, both formal and informal, provided substantial opportunities for State and local officials to discuss and comment on program compliance and policy issues. Following a full review of all applicable State laws and implementing regulations, OCC notified States of their compliance with Section 163 by letter. Any State found not to be in compliance with Section 163 was notified of the reasoning behind this determination and reminded of the impending sanction program becoming effective in FY 2004.

The agencies also solicited comments in the NPRM, and following its publication, sent letters requesting comments on possible Federalism implications to several National organizations representing State and local officials. The six organizations included: The National Governors Association, National Conference of State Legislatures, International Association of Chiefs of Police, Governors Highway Safety Association, National Sheriff's Association, and the American Association of State Highway and Transportation Officials. NHTSA has not received any indication of concerns about the Federalism implications of this rulemaking from these representatives. In addition, none of these groups submitted comments in response to the NPRM.

In sum, the agencies have considered the impact of this action on State and local agencies. We have concluded that the effects on States and local agencies will be minimal and consist of changes that States make as a matter of course when amending a State law. Furthermore, the agencies received no comments from State or local agencies to indicate otherwise. Accordingly, the agencies do not believe that this final rule raises any Federalism issues and no changes to this document are required.

The agencies received few comments to the NPRM. In particular, the agencies received no comments or objections to the compliance criteria proposed in the NPRM. Accordingly, these portions of the NPRM are being adopted without change.

The agencies received some comments and questions regarding procedural aspects of the NPRM. Texas, which has had a conforming 0.08 BAC law since September 1, 1999, commented on the proposed certification process. Specifically, the TXDPS commented favorably on the proposed certification process, stating that the “proposed certifications will legitimately serve NHTSA's goal of ascertaining state compliance for the purpose of Federal-aid highway and grant funds distribution.” Accordingly, TXDPS indicated that it has no objections or additional comments regarding the agencies' proposal.

WIDOT requested clarification regarding “the mechanics and timeline of the process to restore withheld funding.” Specifically, WIDOT noted that Section 1225.9 of the proposed rule did not specify “the manner in which withheld funds would be restored to a state that comes into compliance following September 30, 2003.” In its comments, WIDOT indicated that it presumed that the certification process detailed in Section 1225.7 of the proposed rule would be used for restoration of withheld funds. However, WIDOT noted that the rule did not specify that this would be the case. In addition, it remarked that the NPRM did not indicate “how quickly the restored funding will be available to a compliant state.”

In response to these comments, the agencies have decided to modify the regulation by adding new provisions to the sections regarding “Certification requirements for sanction program” and “Period of availability of withheld funds.” The agencies have determined that no other changes to the regulation are needed.

These new provisions specify the certification process that should be followed for States that comply with the requirements of Section 163 in FY 2004 or thereafter. These new provisions also clarify that States that are seeking compliance with Section 163, following a withholding of funds under Section 1225.8, should contact their appropriate NHTSA Regional Administrator and inform them that they have enacted a 0.08 BAC law they believe to be conforming. The new law and subsequent certification of compliance will be reviewed by NHTSA. If NHTSA determines, based on the State's law and its certification, that the State is now in compliance with Section 163 and these implementing regulations, NHTSA will inform the FHWA of its determination and the FHWA will restore all withheld apportionment funds to the State's appropriate apportionment categories as quickly as possible.

Three individuals also commented on the proposal, expressing support and opposition to the federal policy underlying the Congressional mandate and raising concerns about the constitutionality of the proposal and the ability of States to receive incentive grants in FY 2003.

Similar programs, such as the National Minimum Drinking Age and the National Maximum Speed Limit programs, have been found constitutional in the past and we consider this program to fall within the ambit of those judicial rulings. See, South Dakota v. Dole , 483 U.S. 203 (1987) (upholding the withholding of funds from States without a conforming minimum drinking age act under the spending clause and the Twenty-first Amendment) and The People v. Williams , 175 Cal. App. 3d Supp. 16 (1985) (finding that the Federal withholding of funds from States without a conforming maximum speed limit was an appropriate exercise of Congress' authority under the spending clause and that the authority was not limited by the Tenth Amendment).

The agencies also note that a commenter from Texas expressed concern about this rulemaking because of “a potential Procedural Due Process problem.” She asserted that, “according to a literal reading of § 1225.5(a)(1), Louisiana's 0.08 BAC law must be enforced (and therefore must also be effective) when Louisiana sends in its certification letter * * * [yet] [t]he last day that Louisiana can send a certification letter is July 15, 2003—a full 2 1/2 months before its 0.08 BAC law will be effective and enforced.”

To address this concern, the commenter suggested certain revisions to the certification statements to allow Louisiana to qualify for an incentive grant fund in FY 2003. Specifically, the commenter suggested that the agencies amend the certification statement contained in Section 1225.5(a)(1) to allow States to submit certifications by July 15, 2003, if the newly enacted laws become effective before the end of the fiscal year.

While it is clear that States have no property interest in receiving TEA-21 funds, the comment raises a legitimate question regarding the manner in which States, such as Louisiana, are to certify that they qualify for an incentive grant if they enact a law prior to July 15 (when certifications are due to be submitted), and their law becomes effective on or before September 30, but after July 15. This issue had already been addressed in the 0.08 incentive grant regulations. See 64 FR at 35572.

In particular, the regulations provide that, “If the State's 0.08 BAC per se law is not currently in effect, but will become effective and be enforced before the end of the current fiscal year, the certification shall be worded as follows:

Since the start of the incentive grant program in 1998, the agencies have received and accepted certifications from a number of States using this type of certification statement. Given that the State of Louisiana enacted a conforming 0.08 BAC per se law prior to July 15, 2003, and it will become effective on September 30, 2003, the State should be able to submit this type of certification, in conformance with the current regulation.

The agencies did not propose to change this aspect of the regulation. However, after consideration of the comments received in response to this action, the agencies have decided to modify the certification requirements for the sanction program by adopting a similarly worded certification for States that are seeking to demonstrate conformance with the sanction program based on an enacted law that has not yet become effective.

This final rule will not have any preemptive or retroactive effect. This action 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.

The agencies have determined that this action is a significant regulatory action within the meaning of Executive Order 12866 and is significant within the meaning of the Department of Transportation Regulatory Policies and Procedures. This determination is based on the fact that the withholding of Federal-aid highway funds under the 0.08 BAC sanction program is a matter of substantial interest to the public and to Congress. Further, there is a possibility that the State withholdings resulting from this action could total from $34 million to over $137 million. Accordingly, a final regulatory evaluation was prepared in conjunction with this rule.

The final regulatory evaluation concludes that, aside from advertising costs, the costs for implementing this rulemaking action are minimal and consist of changes that States make as a matter of course when amending a State law. A complete discussion of the economic impact of this rule is contained in the final regulatory evaluation, which is in the docket.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), the agencies have evaluated the effects of this action on small entities. As a sanction program, this rule will have different consequences depending on whether the States enact and enforce a conforming 0.08 BAC law or whether they choose to accept the sanction for not enacting and enforcing a conforming law.

In States that have enacted 0.08 BAC laws, consumption of beer has dropped 3.5 percent on average. By contrast, consumption of wine and spirits do not correlate with the number of drinking drivers in fatal crashes. Thus, if a State passes a 0.08 law, all businesses, large and small, that sell and serve beer are likely to experience a small reduction in sales. However, most businesses sell other products, such as food or other beverages. Therefore, the overall impact on those businesses would be significantly less than 3.5 percent. For some businesses, such as beer distributors (where a small business is defined as 100 employees or less), the decline may approach the 3.5 percent range.

States that do not enact and enforce conforming 0.08 BAC laws will lose Federal-aid highway funds. This loss may impact highway construction firms, where a small business is defined as $28.5 million in annual gross income. The precise number of small businesses that may be affected cannot be determined, since it is assumed that any impact is just as likely to impact businesses of any size. In addition, the penalty affects only Federal highway funds, which make up, on average in the 6 States affected, only 15 percent of all State highway expenditures. Accordingly, even if the sanction were imposed at the highest rate of 8 percent, the maximum reductions in highway expenditures in the relevant States would be within a range of only 1.09 percent (in Minnesota or New Jersey) to 1.93 percent (in Delaware). Further, most of these businesses do not rely totally on highway construction contracts for their revenue.

Based on these considerations, we hereby certify that this action will not have a significant economic impact on a substantial number of small entities.

This action does not contain a collection of information requirement for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as implemented by the Office of Management and Budget (OMB) in 5 CFR part 1320.

The agencies have reviewed this action for the purpose of the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and have determined that it will not have any significant impact on the quality of the human environment.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531) requires agencies to prepare a written assessment of the costs, benefits and other effects of rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule does not require an assessment under this law. The costs to States to enact and make effective conforming 0.08 BAC laws will not result in annual expenditures that exceed the $100 million threshold. Moreover, States that enact 0.08 BAC laws will avoid the loss of millions of dollars in Federal-aid highway funds.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have “federalism implications,” agencies are directed to provide “a description of the extent of the agency's prior consultation with State and local officials; a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation; and a statement of the extent to which the concerns of the State and local officials have been met.”

For the reasons cited earlier in the preamble, the agencies conclude that the effects of this rule on States and local agencies will be minimal and consist of changes that States make as a matter of course when amending a State law. Furthermore, the agencies note that Congress created the 0.08 BAC sanction program in Public Law 106-346-Appendix, and the agencies are required to carry out this program in accordance with the principles established by Congress.

Accordingly, the agencies do not believe that this final rule raises any Federalism issues and no changes to this document are required.

The agencies have analyzed this action under Executive Order 13175, and believe that this final rule will not have a substantial direct effect on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal law. Therefore, a tribal summary impact statement is not required.

A regulation identification number (RIN) is assigned to each regulatory section 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 contained in the heading of this document can be used to cross-reference this section with the Unified Agenda.

The proposed regulations that are the subject of these corrections are under sections 108 and 1017 of the Internal Revenue Code.

As published, the final regulations (TD 9080) contain errors that may prove to be misleading and are in need of clarification.

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 a NPRM. Additionally, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register as the schedule and other logistical details were not known until a date fewer than 30 days prior to the start date of the military operation. Publishing a NPRM and delaying its effective date would be contrary to the public interest since the safety and security of the people, ports, waterways, and properties of the Port Chicago and Suisun Bay areas would be jeopardized without the protection afforded by this security zone. Any delay in implementing this rule would be contrary to the public interest since immediate action is necessary to ensure the protection of all cargo vessels, their crews, the public and national security.

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

Additionally, the threat of maritime attacks is real as evidenced by the October 2002 attack of a tank vessel off the coast of Yemen and the continuing threat to U.S. assets as described in the President's finding in Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 2002) that the security of the U.S. is endangered by the September, 11, 2001 attacks and that such disturbances continue to endanger the international relations of the United States. See also Continuation of the National Emergency with Respect to Certain Terrorist Attacks, (67 FR 58317, September 13, 2002); Continuation of the National Emergency With Respect To Persons Who Commit, Threaten To Commit, Or Support Terrorism, (67 FR 59447, September 20, 2002). Additionally, a Maritime Advisory was issued to: Operators of U.S. Flag and Effective U.S. controlled Vessels and other Maritime Interests, detailing the current threat of attack, MARAD 02-07 (October 10, 2002).

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

In this particular rulemaking, to address the aforementioned security concerns, United States Army officials have requested that the Captain of the Port, San Francisco Bay, California establish a temporary security zone in the navigable waters of the United States surrounding the Military Ocean Terminal Concord (MOTCO), California, to safeguard vessels, cargo and crew engaged in military operations. This temporary security zone is necessary to safeguard the MOTCO terminal and the surrounding property from sabotage or other subversive acts, accidents, criminal actions, or other causes of similar nature. This zone is also necessary to protect military operations from compromise and interference and to specifically protect the people, ports, waterways, and properties of the Port Chicago and Suisun Bay areas.

In this temporary rule, the Coast Guard is establishing a fixed security zone around Military Ocean Terminal Concord (MOTCO), California, under 33 CFR 165.T11-093, encompassing the navigable waters, extending from the surface to the sea floor, bounded by a line connecting the following coordinates: latitude 38°03′07″ N and longitude 122°03′00″ W; thence to latitude 38°03′15″ N and longitude 122°03′04″ W; thence to latitude 38°03′30″ N and longitude 122°02′35″ W; thence to latitude 38°03′50″ N and longitude 122°01′15″ W; thence to latitude 38°03′43″ N and longitude 122°00′28″ W; thence to latitude 38°03′41″ N and longitude 122°00′03″ W; thence to latitude 38°03′18″ N and longitude 121°59′31″ W, and along the shoreline back to the beginning point.

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

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

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

Although this regulation restricts access to the zone, the effect of this regulation will not be significant because the zone will encompass only a small portion of the waterway for a short duration. Vessels and persons may be allowed to enter these zones on a case-by-case basis with permission of the Captain of the Port, or his designated representative.

The size of the zone is the minimum necessary to provide adequate protection for MOTCO, vessels engaged in operations at MOTCO, their crews, other vessels operating in the vicinity, their crews and passengers, adjoining areas, and the public. The entities most likely to be affected are commercial vessels transiting to or from Suisun Bay via the Port Chicago Reach section of the channel.

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 because, although the security zone will occupy a section of the navigable channel (Port Chicago Reach) adjacent to the Marine Ocean Terminal Concord (MOTCO), vessels may receive authorization to transit through the zone by the Captain of the Port or his designated representative on a case-by-case basis. Additionally, vessels engaged in recreational activities, sightseeing and commercial fishing have ample space outside of the security zone to engage in these activities. Small entities and the maritime public will be advised of this security zone via public notice to mariners.

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has 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 because we are establishing a security zone.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where located under ADDRESSES .

EPA Region III is publishing this direct final deletion of the Resin Disposal Superfund Site from the NPL.

EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in § 300.425(e)(3) of the NCP, a site deleted from the NPL remains eligible for remedial actions if conditions at the site warrant such actions.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective October 21, 2003 unless EPA receives adverse comments by September 22, 2003 on this document. If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely withdrawal of this direct final deletion before the effective date of the deletion and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Resin Disposal Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete a release from the NPL, EPA shall consider, in consultation with the state, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. All appropriate Fund-financed (Hazardous Substance Superfund Response Trust Fund) response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, taking of remedial measures is not appropriate.

Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at a site, CERCLA section 121(c), 42 U.S.C. 9621(c) requires that a subsequent review of the site be conducted at least every five years after the initiation of the remedial action at the deleted site to ensure that the action remains protective of public health and the environment. If new information becomes available which indicates a need for further action, EPA may initiate remedial actions. Whenever there is a significant release from a site deleted from the NPL, the site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Site:

(1) EPA consulted with PADEP on the deletion of the Site from the NPL prior to developing this direct final notice of deletion.

(2) PADEP concurred with the deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final deletion, a notice of the availability of the parallel notice of intent to delete published today in the “Proposed Rules” section of the Federal Register is being published in a major local newspaper of general circulation at or near the Site and is being distributed to the appropriate federal, state, and local government officials and other interested parties; the newspaper notice announces the 30-day public comment period concerning the notice of intent to delete the Site from the NPL.

(4) EPA placed copies of documents supporting the deletion in the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this notice to delete also published in today's Federal Register , EPA will publish a timely withdrawal of this direct final deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received.

Deletion of a Site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the Site from the NPL:

The Site is located about one half mile west of the town of West Elizabeth in Jefferson Borough, Allegheny County, Pennsylvania and comprises approximately 26 acres. The Site contains a 2-acre landfill which is located in the head of a narrow valley on the site of a former coal mine. The Site overlies a bedrock aquifer, and is also in contact with the Pittsburgh Coal formation, a source of non-potable ground water.

Between 1950 to 1964, the Pennsylvania Industrial Chemical Corporation (PICCO) deposited approximately 85,000 tons of process wastes consisting of petroleum and coal derived chemicals mixed with clay in the onsite landfill. Prior to 1950, the area on which the landfill came to be located had been used for coal strip and deep mining operations. At the location of the landfill, PICCO deposited approximately 20 feet of waste in place of the mined coal.

PICCO deposited the waste into the landfill as a slurry which collected behind an earthen dike constructed across the upper end of the strip-mined valley. Precipitation runoff from the surrounding hillsides along with any free water from the waste materials collected within the active landfill behind the dike. After PICCO stopped depositing waste in the landfill, it placed a poorly graded, native clay soil cover, ranging in thickness from four to ten feet, over the surface of the landfill. As a result, the direct precipitation and run off from the surrounding hills ponded at times on the landfill cover. Some of the water infiltrated the cover, recharging the waste material and adjacent ground water system. The remainder of the water evaporated or ran off to an unnamed stream. Over time residual product oils decanted from the waste materials as free product. The free product and infiltrated water migrated southeast through the landfill dike into downslope soils and also southwest into mine voids in the adjacent Pittsburgh Coal Formation.

In 1972, Hercules, Incorporated purchased the Site. Between 1980 and 1984, Hercules conducted field investigations of the ground water conditions in the coal formation, deep bedrock, and the extent of contaminated soils downslope of the landfill. Those investigations revealed that there were contaminants in ground water in the Pittsburgh Coal Formation and in downslope soils and perched ground water. In 1983, as a result of those investigations, Hercules installed a leachate collection trench below the lower landfill dike to collect leachate and ground water. The trench is still operating. Liquids collected in the trench are directed to an oil/water separator. The oil is collected and is burned at the Hercules Jefferson Plant boiler. The water is discharged to the Jefferson Borough Sanitary Sewer System and, then, to the West Elizabeth sewage treatment plant.

EPA completed a Superfund Site Investigation in April 1982. The Site received a Hazard Ranking System score of 37.69 in December 1982, was proposed for the National Priorities List (NPL) in December 1982 and was placed on the NPL in September 1983.

In November 1987, Hercules entered into a Consent Order and Agreement with the Pennsylvania Department of Environmental Resources (PADER), the name of which was subsequently changed to PADEP, to conduct a Remedial Investigation (RI)/Feasibility Study (FS) (collectively, RI/FS) in order to characterize the Site for potential remediation. In March 1988, Hercules began work under an EPA-approved RI, which included conducting an extensive study of the extent of contamination of the soils, ground water, and surface water associated with the landfill. Hercules submitted a final RI Report which provided a detailed analysis of no action, containment, and treatment options to PADER and EPA in March 1991, and submitted the final FS to PADER and EPA in May 1991.

The primary contaminants of concern affecting soil, debris, and ground water at the Site are volatile organic compounds (VOCs) including benzene, toluene, and xylenes and other organics including napthalene, poly-aromatic hydrocarbons (PAHs) and phenols. Federal Maximum Contaminant Levels (MCLs) for drinking water established pursuant to the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq. , were exceeded for benzene, benzo (a) pyrene, ethylbenzene, 2-methylnapthalene, 4-methylphenol, naphthalene, tolulene, and xylene. The exposure route which made the greatest contribution to the trespasser scenario was the inhalation of Ethylbenzene and 4-methyl-2pentanone (VOC) vapors. The VOCs, napthalene, PAHs and phenols are “hazardous substances” as defined in section 101(14) of CERCLA.

After reviewing the results of the original RI/FS, EPA categorized the Site into two operable units. Operable Unit One (OU-1) addresses remediation of the landfill, the adjacent contaminated soils, non-aqueous floating product present in the subsurface mine voids of the Pittsburgh Coal Formation, and monitoring of onsite ground water. Operable Unit Two (OU-2) addresses offsite ground water, seeps and residential wells.

A June 28, 1991 Record of Decision (ROD) documented the selected remedial action for OU-1 which included: installation of a multi-layer cap; reinforcement and upgrading of the lower landfill dike to increase its stability; installation of an upgraded oil/water separator downslope of the leachate collection system, with discharge of aqueous phases to a publicly owned treatment works; relocation of a sanitary sewer; implementation of institutional controls which include deed restrictions to alert prospective buyers to the presence of hazardous substances onsite and to prohibit future development; construction of a fence around the perimeter of the Site property to prevent unauthorized access; offsite reclamation of non-aqueous phase liquids (NAPLS) through skimmer wells for use as an energy source; and implementation of a Site maintenance and long-term ground water monitoring program.

In February 1992, Hercules signed a Consent Decree with EPA to perform the Remedial Design (RD)/Remedial Action (RA) (collectively RD/RA) at this Site. EPA approved the final RD Work Plan on December 4, 1992; the Final Oil/Water Separator Design on December 21, 1994 and the Final Design for the landfill cap and the fence on September 29, 1995.

As part of the RA, Hercules performed the following activities, among others: replaced the oil/water separator; reinforced the lower landfill dike with approximately 5,000 tons of clean soil, and then regraded and hydroseeded; placed a multi-layer cap on the onsite landfill; installed infiltration controls around the perimeter of the landfill; placed a six inch layer of topsoil on top of the cap; and hydroseeded the landfill; erected fences around the perimeter of the Site and also around the onsite landfill; and installed and currently operates a well skimmer system down gradient of the landfill to collect floating product in ground water that may otherwise migrate offsite via the mine voids and monitored ground water quarterly for three years and semiannually until the Five-Year Review. Hercules completed the RA activities in October 1996.

In September 1995, EPA issued a No Further Action ROD for OU-2 which required long-term onsite and offsite monitoring of the ground water. Hercules is monitoring the onsite ground water pursuant to the RA selected in the ROD for OU1. Under OU-2, Hercules monitored offsite ground water quarterly for three years and then semiannually until the five-year review was completed. The Five-Year Review recommendations included quarterly monitoring for TW-13 until the second Five-Year Review or until EPA determines that further monitoring is unnecessary.

Under the OU-2 ROD, offsite monitoring includes sampling of the offsite monitoring wells, as well as monitoring the seeps, sampling of an unnamed tributary and sampling of residential wells near the Site. EPA discontinued the requirement that Hercules monitor residential wells after it determined that, based on ground water monitoring during the RI and the 1999 ground water monitoring events, residential water users are not affected by Site related contaminants. EPA also discontinued the requirement that Hercules conduct bi-monthly surface water sampling because repeated surface water sampling from 1991 to 1998 showed levels of contaminants of concern at or well below Maximum Contaminant Levels for the “Drinking Water Regulations and Health Advisories” in the unnamed stream. EPA determined that the decrease in levels of contaminants of concern in the stream were a result of the following remedial actions: buttressing of the landfill, construction of a multi-layer cover system over the landfill area, upgrading of an oil/water separator and routine product recovery from a network of down gradient product recovery wells.

Hercules is required to perform the following Operation and Maintenance (O&M) activities with EPA oversight: periodic inspections of the landfill cover system and the fence, ground water monitoring, light non-aqueous phase liquids (LNAPLS) recovery through the skimmer wells, maintenance of the oil/water separator and any other activities necessary to ensure continued protection of public health and the environment. Until the next five-year review or until EPA determines that further monitoring efforts are unnecessary, Hercules is required to continue semi-annual ground water monitoring in selected monitoring wells; quarterly monitoring for TW-13 and quarterly LNAPL recovery. The LNAPL recovery, in conjunction with long-term ground water monitoring, will continue to ensure the effectiveness of the completed remedy at the Resin Disposal Site.

CERCLA requires a five-year review of all sites at which hazardous substances, pollutants or contaminants remain at the Site. Since residual organic solvents, resin cakes and oils from a resin manufacturing process and ground water contamination remain at the Site, the five-year review process will be used to ensure that the selected remedy continues to be protective of human health and the environment. EPA completed the first five-year review of the Resin Disposal Site on September 19, 2000. In that five-year review, EPA determined that the remedy was not completely protective of human health and the environment because institutional controls on future land use at the Site had not yet been implemented. In July 2002, EPA implemented institutional controls to limit future land use at the Resin Disposal Site. Those institutional controls were recorded at the Allegheny County Courthouse, Recorder of Deeds Office, in Jefferson Borough, Pennsylvania. These controls include alerting prospective buyers to the presence of hazardous substances onsite and recite Herules' obligation under the Consent Decree to limit future development. EPA has determined that all requirements of the RODs for OU-1 and OU-2 have been achieved at the Site and the remedies selected in those RODs are protective of human health and the environment. EPA plans to complete the next five-year review prior to September 19, 2005.

Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion from the NPL are available to the public in the information repositories.

The EPA, with the concurrence of the Commonwealth of Pennsylvania, has determined that all appropriate responses under CERCLA have been completed, and that no further response actions, under CERCLA, other than O&M and five-year reviews, are necessary. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective October 21, 2003 unless EPA receives adverse comments by September 22, 2003 on this document. If adverse comments are received within the 30-day public comment period on this document to delete, EPA will publish a timely withdrawal of this direct final deletion before the effective date of the deletion and the deletion will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

Copies: To order copies of the Federal Register containing this document, send your request to: New Orders, Superintendent of Documents, PO Box 371954, Pittsburgh, PA 15250-7954. Specify the date of the issue requested and enclose a check or money order payable to the Superintendent of Documents, or enclose your Visa or Master Card number and expiration date. Credit card orders can also be placed by calling the order desk at (202) 512-1800 or by faxing to (202) 512-2250. The cost for each copy is $10. As an alternative, you can view and photocopy the Federal Register document at most libraries designated as Federal Depository Libraries and at many other public and academic libraries throughout the country that receive the Federal Register . This Federal Register document is also available from the Federal Register online database through GPO access, a service of the U.S. Government Printing Office. The website address is: http://www.access.gpo.gov/nara/index.html.

Generally, under the Medicare program, hospices, organ procurement organizations (OPOs), rural health clinics (RHCs), Federally qualified health centers (FQHCs), community mental health centers (CMHCs), and end-stage renal disease (ESRD) facilities are paid for the reasonable costs of the covered items and services they furnish to Medicare beneficiaries. Sections 1815(a) and 1833(e) of the Social Security Act (the Act) provided that no payments will be made to a provider unless it has furnished the information, requested by the Secretary of the Department of Health and Human Services (the Secretary), needed to determine the amount of payments due the provider. In general, providers submit this information through cost reports that cover a 12-month period. Rules governing the submission of cost reports are set forth in title 42 of the Code of Federal Regulations (CFR) 413.20 and 413. 24.

Under § 413.20(a), all providers participating in the Medicare program are required to maintain sufficient financial records and statistical data for proper determination of costs payable under the program. In addition, providers must use standardized definitions and follow accounting, statistical, and reporting practices that are widely accepted in the health care industry and related fields. Under § 413.20(b) and § 413.24(f), providers are required to submit cost reports annually, with the reporting period based on the provider's accounting year. Additionally, under § 412.52, all hospitals participating in the prospective payment system must meet cost reporting requirements set forth at § 413.20 and § 413.24.

Section 1886(f)(l)(B)(i) of the Act requires the Secretary to establish a standardized electronic cost reporting system for all hospitals participating in the Medicare program. This provision was effective for hospital cost reporting periods beginning on or after October 1, 1989. On January 2, 1997, we revised our regulations at § 413.24(f)(4)(ii) to extend the electronic cost reporting requirement to skilled nursing facilities (SNFs) and home health agencies (HHAs) (62 FR 26-31).

The required cost reports must be electronically transmitted to the intermediary in American Standard Code for Information Interchange (ASCII) format. In addition to the electronic file, hospitals, SNFs, and HHAs were initially required to submit a hard copy of the full cost report. We later revised our regulations in § 413.24(f)(4)(iv) to state that providers were required to submit, instead, a hard copy of a one-page settlement summary, a statement of certain worksheet totals found in the electronic file, and a statement signed by the provider's administrator or chief financial officer certifying the accuracy of the electronic file. In order to preserve the integrity of the electronic file, in the January 1997 final rule we specified procedures regarding the processing of the electronic cost report once it is submitted to the intermediary (62 FR 27).

With the exception of revising the first cost reporting period affected from those ending on or after December 31, 2002 to those ending on or after December 31, 2004, we have adopted the provisions as set forth in our proposed rule, published in the Federal Register on July 26, 2002 (67 FR 48840-48844). We revised the cost reporting periods affected to take into account the publication date for this final rule. We discuss the finalized provisions in section IV of this final rule.

We received approximately 20 comments on the proposed electronic submission of cost reports requirements. These comments were from providers, professional organizations, trade associations, vendors and individuals. Summaries of the public comments received and our responses to those comments are set forth below.

Comment: Several commenters requested that we add language to the regulation that would prohibit fiscal intermediaries (FIs) from requesting paper copies of the Medicare cost report, in addition to the electronic cost report.

Response: According to our CMS manual provisions (Provider Reimbursement Manual 15-2, chapter 1, sections 131 and 132), the electronic cost report file is considered the official cost report by the FI and, as a result, must be accepted by the FI. Since March 31, 1993, hospitals have not been required to submit a paper copy of the cost report to the FI . Similarly, since March 31, 2000, SNFs and HHAs have not been required to submit a paper copy of the cost report to the FI. We have, however, provided a two-year phase-in period for the providers that are subject to this regulation. During this two-year phase-in period, the paper copy of the cost report will be considered the official copy. After the expiration of the two-year period, though, a paper copy of the cost report will not be required to be submitted to the FI. We believe this phase-in period is necessary, so that providers are familiar with the requirements of electronic cost reporting.

Comment: We received several comments concerning our proposal to distribute free electronic cost reporting software to providers who can demonstrate that it would be a financial hardship to purchase software from vendors. One comment, from a software vendor, requested that we add language that would preclude the distribution of free software because it would be “unfair” to small vendors and the software would be poor quality. Another commenter asked that we specify a date that the free software would be available to providers. Also, we received a comment that the CMS-provided software would not allow providers to determine final settlement and that providers would still have to complete the cost report manually.

Response: With regard to the comment concerning adding language to the regulation that would preclude the distribution of free software, free software is made available to the providers based upon financial need only. The provider must demonstrate to the FI that the provider is financially unable to purchase commercial software. It has been our experience, with the hospitals, SNFs, and HHAs currently required to file electronically, that relatively few providers request the free software. If, however, the provider requests the free software and can demonstrate to the FI that it would be a financial hardship to purchase the software from a vendor, we will provide the software so that the provider can comply with the provisions of this rule. The quality of the software will be sufficient to allow the provider to comply with all provisions of this rule in a timely and efficient manner.

With regard to the comment concerning the projected date that the free software will be available, we expect that it should be available by September 30, 2004.

The comment that the CMS-provided software would not allow providers to determine final settlement and, as a result, that providers would still have to complete the cost report manually, is correct. The software allows the provider to create an electronic cost report file only for use by the FI and a final settlement amount is not necessary in this instance. Providers who use free software are always required to manually complete the cost report and to manually determine the final settlement.

Comment: We received a comment that the final regulation should also require that Comprehensive Outpatient Rehabilitation Facilities (CORFs) and Outpatient Physical Therapy providers (OPTs) file cost reports electronically.

Response: We are not requiring CORFs and OPTs to file electronically because CORFs are paid on a fee schedule for services furnished on or after April 1, 2001 and OPTs will be paid on a fee schedule for services furnished on or after July 1, 2003. For those providers with cost reporting periods beginning on or after the aforementioned dates, cost reports will no longer be required. We believe that it would be administratively burdensome as well as not economically feasible to require these providers to meet the electronic filing requirements for such a short period of time.

Comment: We received a comment that the final rule should include an exemption from the electronic filing requirement for no or low utilization providers because it appears that these providers are exempt from such filing requirements in § 413.24(h).

Response: Section 413.24(h) does not address the electronic filing requirement but it does provide that an FI may waive the requirement that a provider submit a full cost report if it qualifies as low utilization or no cost Medicare provider. Thus, based upon a waiver by the FI, under § 413.24(h), a low utilization or no Medicare utilization provider would not be required to file an electronic cost report. Because our current regulations clearly state that a full cost report need not be filed by a low utilization or no Medicare utilization provider, we believe that an exception, such as the one requested by the commenter, is not necessary for this final rule.

Comment: We received a comment that we should clarify the minimum requirements of what constitutes a financial hardship for the purposes of qualifying for the waiver and/or free software.

Response: Given the wide spectrum of the providers affected, we believe it is best to determine financial hardship on a case-by-case basis. Some examples of financial hardship include cash flow problems, previous year's net operating loss, and a required repayment of the past year's overpayment. These are some examples of financial hardship but should not be seen as all-encompassing. The flexibility to make these determinations is necessary as the providers differ greatly in terms of size, location, expenses, and services provided. The FI will need to have this flexibility in order to make a fair and reasonable determination for each provider.

Comment: We received several comments concerning the one-time pass through of costs (direct reimbursement on a dollar-for-dollar basis) for RHCs and FQHCs rather than reimbursing those providers based on the determination of the total allowable costs of the RHCs and FQHCs.

Response: We are unable to reimburse RHCs and FQHCs in a way other than direct reimbursement because to do so would require a statutory change in the method of reimbursement for the RHCs and FQHCs.

Comment: We received a comment reflecting concern that the cost of dial up Internet service required to file electronically would be a burden for rural providers.

Response: There is no requirement to use the Internet to electronically file a cost report. The medium for transfer of cost reports submitted electronically to FIs is a 3 1/2 ″ diskette.

Comment: We received two comments expressing concern about the phase-in period. One concern was that the two-year phase-in period was too long. Another concern was that the two-year period should be extended to three years.

Response: We believe that the two-year phase-in period is necessary to allow providers to become familiar with the requirements of electronic filing and that a shorter phase-in period would be insufficient to accomplish this.

Similarly, prior experience with the hospital cost report, the SNF cost report, and the HHA cost report indicate that the two-year phase-in period provides ample time for the providers to adjust to the electronic methods for filing the cost report, and a longer period is not necessary.

Comment: We received a comment that we should delay the implementation of the electronic filing requirement for FQHCs from December 31, 2002 until June 30, 2003 to allow those providers more time for implementation.

Response: We are revising the implementation date to December 31, 2004 to allow all providers more time to implement the rule.

Comment: We received a comment that recommended that we have a pilot testing period before implementing the electronic filing requirement.

Response: Electronic filing of cost reports has been required since March 31, 1993 for hospitals and for SNFs and HHAs since March 31, 2000 and, based on our experiences with hospitals, SNFs, and HHAs, we believe that the electronic filing requirements will be implemented by hospices, OPOs, RHCs, FQHCs, CMHCs, and ESRD facilities, as efficiently as has been the case with the other providers mentioned. Moreover, the two-year phase-in period, which will end May 31, 2007, will allow sufficient time for the providers subject to this regulation to adapt to the electronic filing requirement. The hard copy of the cost report is the official copy during the two-year transition period. For this two-year phase-in period, no cost report will be rejected but the FIs will make the provider aware of the edits that the provider did not pass. This flexibility will allow the provider to correct any problems that the provider has encountered with electronic filing before the phase-in period ends.

Comment: We received a comment that a correction period of 60 days be allowed for providers to resubmit electronic cost reports that are rejected by the FI.

Response: While it is the responsibility of the provider to submit an acceptable cost report to the FI by the required due date of the cost report, we have established a two-year phase-in period where the hardcopy of the cost report will be the official cost report and will not be rejected by the FI—a concern of the commenter. The two-year phase-in period has been established to allow the provider sufficient time to familiarize itself with the electronic filing requirements. Also, during this two-year phase-in period, the FI will inform the provider concerning any problems that the provider may encounter with the electronic filing requirement that would cause rejection in the future. It should be noted, as well, that there already exists a 30-day period during which providers can correct errors and resubmit electronic cost reports to the FI ( See Provider Reimbursement Manual 15-II, Chapter 1, section 140).

Comment: We received a comment that all current cost reports should be settled by the FIs before the implementation of the electronic filing requirement.

Response: The settlement of cost reports is not governed by this final rule and any changes regarding the settlement of cost reports are beyond the scope of this rule which is concerned solely with electronic filing requirements.

Comment: We received a comment that we should provide electronic Provider Statistical Reimbursement & Report data (PS&R)—reimbursement and statistical data that we prepare—to providers.

Response: Although this comment does not fall within the scope of this rule, we believe that it may be helpful to address this process issue. We note, therefore, that this information is used by the FI for the settlement of cost reports. The detailed PS&R, however, is available from the FI upon written request from the provider if there are any discrepancies between the provider's data and the PS&R summary report. The FI is required to send the summary PS&R report to the provider 30 days before the due date of the cost report.

Comment: A commenter requested that we not extend the “complex” and “punitive” criteria for acceptable cost reports currently imposed on hospitals, SNFS, and HHAs to the other providers affected by this final rule.

Response: We do not believe that acceptability criteria for electronic cost report filings are complex and they certainly are not intended to be punitive. We developed these criteria both to help the provider and to ensure that the provider is aware of what is required to file an acceptable cost report. We believe these criteria, which we attempt to keep at a minimum, will help ensure accuracy and save time to both the provider and the FI. Generally included in the criteria, for example, are the level one electronic edits that all cost reports must pass in order for the cost report to be acceptable. By clearly enumerating these level one edits in our criteria—the criteria most critical in the filing of an acceptable electronic cost report—we believe providers will have every opportunity to meet the requirements in a timely and accurate manner.

In this final rule, we are applying the current hospital, SNF, and HHA electronic cost reporting requirements to hospices, OPOs, RHCs, FQHCs, CMHCs, and ESRD facilities with the exception that, for the first 2 years, the hard copy of the cost report must be submitted with the electronic cost report. Over that 2-year period (until May 31, 2007) the hard copy will continue to be the official copy. We believe that the use of electronically prepared cost reports will be beneficial for hospices, OPOs, RHCs, FQHCs, CMHCs, and ESRD facilities because the cost reporting software for these reports will virtually eliminate computational errors and substantially reduce preparation time. Moreover, the use of cost reporting software will save time whenever the provider needs to change individual entries in a cost report.

This rule provides that a hospice, organ procurement organization, RHC, FQHC, CMHC, or ESRD facilities may submit a written request for a waiver or a delay of these requirements if it believes that implementation of the electronic submission requirement would cause a financial hardship. Consistent with the existing regulations ( see § 413.24(h)), we are continuing to allow providers with low or no Medicare utilization to request a waiver of full or simplified cost reporting.

Under the Paperwork Reduction Act of 1995 (PRA 1995), we are required to provide 30 days notice in the Federal Register and solicit public comment before a collection of information requirement is submitted to the Office of Management and Budget (OMB) for review and approval. However, the requirements referenced and discussed below are currently approved by OMB.

Currently, § 413.24 requires hospitals, SNFs, and HHAs to submit electronic cost reports. However, as proposed in the regulation, hospices, OPOs, RHCs, FQHCs, CMHCs, or ESRD facilities will no longer have the option of submitting either a hard copy or electronic cost report. In addition to the electronic cost report, these providers will also continue to be required to submit to the appropriate FI, hard copies of a settlement summary, statement of certain worksheet totals, and the Federally prescribed statement signed by its administrator or chief financial officer certifying the accuracy of the electronic file or the manually prepared cost report. We believe that these electronic filing requirements will initially increase the burden by approximately 40 hours and cost approximately $5000 for each cost reporting period. We expect that this burden will decrease as the providers become familiar and proficient in electronic filing.

However, as currently approved, these providers may request a delay or waiver of the electronic submission requirement in paragraph (f)(4)(ii) of this section if this requirement would cause a financial hardship.

As noted above, while all the above reporting requirements are subject to the PRA, they are currently approved under OMB approval numbers 0938-0050, “Hospital/Healthcare Complex Cost Report,” with a current expiration date of November 30, 2005, 0938-0463; “Skilled Nursing Facility Cost Report,” with a current expiration date of May 31, 2004; 0938-0022, “Home Health Agency Cost Report,” with a current expiration date of May 31, 2004; 0938-0758, “Hospice Cost Report,” with a current expiration date of March 31, 2005; 0938-0102, “Organ Procurement Agency/Laboratory Statement of Reimbursable Costs,” with a current expiration date of October 31, 2003, which is currently at OMB awaiting re-approval; 0938-0107, “Independent Rural Health Clinic/Freestanding Federally Qualified Health Center Cost Report,” with a current expiration date of October 31, 2005; 0938-0236, “Medicare Independent Renal Dialysis Facility Cost Report,” with a current expiration date of August 31, 2004; and 0938-0657, “End Stage Renal Disease Network Cost Report,” with a current expiration date of December 31, 2003, which is currently in the re-approval process.

We have examined the impacts of this final rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 16, 1980 Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1955 (Pub. L. 104-4), and Executive Order 13132.

Executive Order 12866 (as amended by Executive Order 13258, which merely reassigns responsibility of duties) directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more annually). This rule will not have a significant economic impact on hospices, OPOs, RHCs, FQHCs, CMHCs, and ESRD facilities, and, therefore, is not a major rule. There are no requirements for hospices, OPOs, RHCs, FQHCs, CMHCs, and ESRD facilities to initiate new processes of care, and reporting; to increase the amount of time spent on providing or documenting patient care services; or to purchase computer software.

The RFA requires agencies to analyze options for regulatory relief of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having annual receipts of $6 million to $29 million or less annually ( see 65 FR 69432). For purposes of the RFA, all providers and small businesses that distribute cost-report software to providers are considered small entities. We do not believe that this rule will have a significant impact on these providers as no or low utilization providers already have the ability to file for a waiver of the electronic filing requirement. In demonstrated cases of financial hardship, however, we will provide free software. With computers so common in the work place today it is hard to imagine that a provider does not already access to a computer and, in the rare instance when a provider would have to purchase a computer, we believe the cost would be neglible. In addition, the providers have a period of almost two years to familiarize themselves with the electronic filing requirements, since the first cost reports will not be due until May 31, 2005. Our intermediaries are not considered small entities for the purposes of the RFA. Individuals and States are not included in the definition of small entities.

In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds.

We are not preparing analyses for either the RFA or section 1102(b) of the Act because we have determined, and we certify, that this rule will not have a significant economic impact on a substantial number of small entities or a significant impact on the operations of a substantial number of small rural hospitals.

As stated above, under § 413.20(b) and § 413.24(f), providers are required to submit cost reports annually, with reporting periods based on the provider's accounting year. This final rule requires hospices, OPOs, RHCs, FQHCs, CMHCs, and ESRD facilities, like hospitals, SNFs and HHAs, to submit their Medicare cost reports in a standardized electronic format. This requirement will take effect for cost reporting periods ending on or after December 31, 2004, meaning that the first electronic cost reports will be due May 31, 2005.

Currently, approximately 55 percent of all hospices, OPOs, RHCs, FQHCs, CMHCs, and ESRD facilities submit a hard copy of an electronically prepared cost report to the intermediary. We believe that the provisions of this final rule will have little or no effect on these providers, except to reduce the time involved in copying and collating a hard copy of the report for intermediaries. Under this rule, instead of submitting a complete hard copy of the report, providers will be required to submit only hard copies of a settlement summary, statement of certain worksheet totals, and a statement signed by the administrator or chief financial officer certifying the accuracy of the electronic file or the manually prepared cost report. In addition to the 55 percent of providers that currently use electronic cost reporting, this rule will not affect those providers that do not file a full cost report and, as stated above, would not be required to submit cost reports electronically.

This rule may have an impact on those providers who do not prepare electronic cost reports, some of whom may have to purchase computer equipment, obtain the necessary software, and train staff to use the software. However, as discussed below, we believe that the potential impact of this final rule on those providers who do not prepare electronic cost reports will be insignificant.

First, a small number of the 45 percent of providers that do not submit electronic cost reports may have to purchase computer equipment to comply with the provisions of this rule. These providers are generally owned and operated by one or two individuals and are often located in rural areas. They include approximately 1,500 RHCs and 1,500 FQHCs. We estimate that 1,350 of the 3000 RHCs and FQHCs may not have the necessary computer equipment. We believe, however, that most providers already have access to computer equipment, which they are now using for internal record keeping purposes, as well as for submitting electronically generated bills to their fiscal intermediaries, for example. Thus, we do not believe that obtaining computer equipment will be a major obstacle to electronic cost reporting for most providers. For those providers that may have to purchase computer equipment, we note that, in accordance with current regulations governing payment of provider costs, we will pay for the cost of the equipment as an overhead cost. Rural health clinics and FQHCs will be reimbursed subject to a payment limit; OPOs reimbursed based on costs; hospices reimbursed according to fee schedule; ESRDs paid a composite rate, and CMHCs will be reimbursed through a blend of prospective payment (PPS) and cost.

We recognize that a potential cost for providers that do not submit electronic cost reports will be that of training staff to use the software. Since most hospices, OPOs, RHCs, FQHCs, CMHCs, and ESRD facilities currently use computers, we do not believe that training staff to use the new software will impose a large burden on providers. An additional cost would be the cost of the software offered by commercial vendors. However, providers could eliminate this cost by obtaining the necessary software from us, free of charge. In those instances when these requirements may cause hardship, a waiver can be granted.

The requirement that hospitals submit cost reports in a standardized electronic format has been in place since October 1989. Since that time, the accuracy of cost reports has increased and we have received very few requests for waivers. Additionally, we have not received any comments from the hospital industry indicating that the use of electronic cost reporting is overly burdensome. We believe that electronic cost reporting will be equally effective for hospices, OPOs, RHCs, FQHCs, CMHCs, and ESRD facilities, with the benefits (such as increased accuracy and decreased preparation time) outweighing the costs of implementation for most providers.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in an expenditure in any one year by State, local, or tribal governments, in the aggregate, or by the private sector, that exceeds the inflation-adjusted threshold of $110 million. This rule does not impose any costs that would exceed the $110 million threshold on the governments mentioned, or the private sector.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct compliance costs on State and local governments, preempts State law, or otherwise has Federalism implications. We have examined this final rule and have determined that this rule will not have an impact on the rights, roles, and responsibilities of State, local, or tribal governments.

In accordance with the provisions of Executive Order 12866, this final rule was reviewed by the Office of Management and Budget.

In FR Doc. 03-1230 of January 24, 2003 (68 FR 3640), there were several technical errors that are identified and corrected in the “Correction of Errors” section below. The corrections described below are effective September 22, 2003.

Specifically, this document corrects errors of omission, clarifies ambiguities, and corrects erroneous references and typographical errors. We would ordinarily publish these changes in a notice of proposed rulemaking in the Federal Register and invite public comment on the proposed rule. This notice and comment rulemaking procedure can be waived, however, if an agency finds good cause to do so (that is, notice-and-comment procedure is impracticable, unnecessary, or contrary to the public interest) and it incorporates a statement of the finding and its reasons therefore in the final rule. We find good cause to waive notice and comment procedures for the corrections contained in this final rule for the reasons set forth in section III of this notice.

On May 1, 2001, the Office of Management and Budget (OMB) approved the information collection requirements contained in Sections 15.3; 15.19; and 15.118 pursuant to OMB Control No. 3060-0959. Accordingly, the information collection requirements contained in these rules became effective on May 1, 2001.

This is a synopsis of the Commission's Report and Order, MB Docket No. 03-25, adopted July 23, 2003, and released July 24, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, (202) 863-2893, facsimile (202) 863-2898, or via e-mail qualexint@aol.com.