On July 15, 2003, the Office of Energy Policy and New Uses (OEPNU) published a Proposed Rule (68 FR 41751, July 15, 2003) to provide administrative provisions for the Biodiesel Fuel Education Program. In the Proposed Rule, OEPNU invited comments, which were due by August 14, 2003. The Agency did not receive any comments. No public meetings were requested or held. Therefore, the text in the Final Rule substantively is unchanged from the text proposed on July 15, 2003. OEPNU did make three minor grammatical or stylistic changes, corrected a reference to this part in section 2903.15, and removed specific references to 7 CFR part 3015, since those regulations have been proposed for removal (68 FR 41947, July 16, 2003). Even without those specific references, the Final Rule clearly reminds the public that this program is subject to all applicable USDA regulations.

The Biodiesel Fuel Education Program was authorized in Sec. 9004 of the Farm Security and Rural Investment Act of 2002 (“2002 Farm Bill”) (7 U.S.C. 8104). This Final Rule describes the policies and procedures OEPNU will apply to the Biodiesel Fuel Education Program. These policies are consistent with those used by other USDA agencies, particularly the Cooperative State Research, Education, and Extension Service (CSREES). The rules are consistent with the basic parameters by which most Federal agencies operate competitive grants programs and will be revised as needed to conform with Federal streamlining efforts.

The goals of the Biodiesel Fuel Education Program are to stimulate biodiesel consumption and to accelerate the development of a biodiesel infrastructure. Increasing biodiesel production will increase the demand for farm commodities, which in turn will raise farm prices and net farm income, and lower government program payments. The development of a biodiesel industry would increase employment and stimulate economic growth in rural areas.

Section 9004 of the 2002 Farm Bill (7 U.S.C. 8104) requires that the Secretary make competitive grants to eligible entities to educate governmental and private entities that operate vehicle fleets, other interested entities (as determined by the Secretary), and the public about the benefits of biodiesel fuel use. In the Joint Explanatory Statement of the Committee of Conference accompanying the 2002 Farm Bill, the Managers encouraged the Secretary of Agriculture to utilize the expertise of OEPNU in carrying out the purposes of this section. The Secretary delegated this authority to the Chief Economist, who is implementing this authority through OEPNU. The USDA Farm Bill Implementation Task Force acknowledged that OEPNU would provide technical oversight for the Program and utilize the services of CSREES in administering the Program.

OEPNU and CSREES recognize the need for coordination and collaboration between the agencies to carry out the intent of the law. A memorandum of understanding has been signed by each agency which specifies the manner in which OEPNU and CSREES will collaborate in the administration of the Program. OEPNU will utilize the services of CSREES, pursuant to the Economy Act, 31 U.S.C. 1535, to administer the Program grants, as recommended by the Farm Bill Implementation Task Force. The Task Force recommended CSREES because of the Agency's experience conducting education-related grant programs and to take advantage of CSREES staff specialists who are familiar with administering grants.

In implementing the Program, OEPNU has formed an oversight committee, including representatives with relevant expertise from the USDA Forest Service, Office of Procurement and Property Management, Agricultural Research Service, Rural Utilities Service, OEPNU, and CSREES and the Department of Energy Office of Biomass. Expertise of committee members includes research, development and demonstration of alternative fuels, production of alternative fuels, and procurement of alternative fuels.

The committee has recommended guidelines for the Program, which are included in the Notice of Request for Applications published on July 15, 2003 (68 FR 41770). The closing date for receiving applications was August 14, 2003. Qualified applications that responded to the Request for Applications will be reviewed by the Oversight Committee. and the Committee will recommend awards. OEPNU plans to award one or two continuation grants in FY 2003. Awards made pursuant to the Request for Applications for the Biodiesel Fuel Education Program will be made in accordance with this Final Rule.

In designing the Request for Applications for the Program, committee members relied on their past experiences with biodiesel education and outreach. For over a decade, USDA has been involved in biodiesel outreach programs. USDA's Office of Energy Policy and New Uses (OEPNU) coordinates activities related to biodiesel and other renewable fuels for the Department. Since 1993, OEPNU has been involved with producer and consumer stakeholder groups interested in developing a biodiesel industry in the United States. One of the Department's first efforts to bring biodiesel stakeholders together took place in September 1995 when OEPNU and the Department of Energy organized a stakeholder meeting in Washington, DC. The purpose of the meeting was to develop a life cycle inventory of biodiesel. This life cycle inventory furthered knowledge about the benefits of biodiesel. Several groups were represented at the meeting, including biodiesel producers, the oilseed processing industry, the rendering industry, engine manufacturers, state and local governments, and environmental groups.

The Agricultural Research Service (ARS) leads the Department's efforts on biodiesel research and demonstration. Since the summer of 1999, the Beltsville Agricultural Research Center (BARC) has been conducting a biodiesel demonstration project that has become a working model for others interested in using biodiesel. All of the Center's 150 pieces of diesel equipment and trucks were converted to a fuel blend of 20 percent biodiesel and 80 percent petroleum diesel (B20). Vehicles from BARC that run on biodiesel and educational materials have been displayed and distributed throughout the country. In January 2000, ARS conducted a workshop to highlight the BARC biodiesel demonstration project. The workshop's 75 attendees represented a broad range of potential users, including Federal Agencies, such as the Departments of Energy, Defense, and the Interior, and the U.S. Postal Service. Officials from nearby cities, counties, and states were also in attendance, as well as private industry groups, farmers and biodiesel suppliers. The biodiesel demonstration project has been highlighted at the BARC Public Day, an annual event that provides an opportunity for ARS scientists to describe their research projects to the public.

A biodiesel outreach program has also been established to introduce biodiesel to USDA and other Federal agencies that operate motor fleets. Beginning in July of 2000, USDA's Office of Procurement and Property Management (OPPM) has been conducting a series of informational meetings at various locations around the United States to educate Federal fleet managers and other stakeholders on the benefits of biodiesel. Meetings have been held in Orlando, FL, San Antonio, TX, Minneapolis, MN, Washington, DC, Kansas City, MI, and Salt Lake City, UT. These meetings are used as a platform to educate motor fleet personnel, postal workers and the public about the major advantages of biodiesel. OPPM has also teamed with other entities interested in the environmental and health effects of biodiesel, such as the American Lung Association and the National Biodiesel Board, to conduct biodiesel education meetings for Federal fleet managers, postal workers, and other interested stakeholders.

In collaboration with external reviewers, the Oversight Committee will review proposals and recommend awards. The Committee will monitor the Program's performance and provide guidance to OEPNU to insure that the Program objectives are being achieved. The Committee will review progress reports submitted by the grantees and, on a yearly basis, recommend whether the awards should be renewed. Also, on a yearly basis, the Committee will recommend whether to reissue the RFA and award new grants.

CSREES will compile application reviews and recommend awards to OEPNU. OEPNU will make award decisions.

The Program will fund Biodiesel Fuel Education Program grants in each of FYs 2003 through 2007. Because of the scope of this Program and the limited funds available to support it, OEPNU plans to award one or two continuation grants in FY 2003. A continuation grant is a grant instrument by which the Department agrees to support a specified level of effort for a predetermined project period with a statement of intention to provide additional support at a future date, provided that performance has been satisfactory, appropriations are available for this purpose, and continued support would be in the best interest of the Federal government and the public. If these three elements are met, OEPNU plans to provide additional support to the funded projects in each of FYs 2004 through 2007.

OEPNU's plan to award only one or two continuation grants should facilitate a national education program with a consistent message. It should also ease the implementation process and allow OEPNU to monitor the Program more effectively. If the Agency were to make numerous smaller awards, this could result in multiple education programs with different emphases and goals, as well as competition for Program participants and human resources to conduct the Program.

Continuation grants are necessary to ensure that the Program follows an orderly and consistent transition from one year to the next over the five-year funding period. A successful Biodiesel Fuel Education Program will be sequential in nature, i.e. , conducted in several dependent work phases. For example, phase one might focus on identifying program participants and designing educational tools. Phase 2 might develop a strategy for putting a system and infrastructure in place to reach the targeted audience. Phase 3 could focus on scheduling and travel logistics. The work phases are interdependent, so selecting new grantees each year would cause disruptions and create the potential for repetitive efforts. Authorizing continuation grants will allow the grantees to develop and conduct long-term plans, preserve program continuity, and benefit from learning experiences over the funding period.

The Final Rule is divided into subparts. Subpart A contains general information about the Program prescribed by the authorizing legislation, including the purpose of the Program and eligibility restrictions established by the legislation. Subpart A limits indirect costs to the rate that an applicant has negotiated with the cognizant Federal negotiating agency, and explains that there are no matching funds requirements for the Program. Subpart B describes the continuation grant instrument that OEPNU plans to use and outlines objectives for projects funded by the Program. Subpart C provides information about the publication of program announcements, instructs applicants regarding the minimum content requirements for applications, and directs them to the program announcement for specific instructions regarding application requirements and the order of application contents. Subpart C also lists the application submission information that will appear in program announcements and describes the process for acknowledging the receipt of applications. In Subpart D of the rule, the process for selecting reviewers is described, and the evaluation criteria applied to applications are enumerated. Subpart D also contains a discussion of the measures employed by OEPNU to protect against conflicts of interest and safeguard applicant and reviewer confidentiality. General award administration guidelines are outlined in Subpart E. Subpart E also delineates the one-time requirement that applicants submit organizational management information and lists the minimum contents of the award document. The last subpart of the rule, Section F, includes supplementary information. This subpart tells grantees how they can obtain review information, what uses of funds and changes to projects are permissible, where they can find instructions about reporting requirements, and other Federal statutes and regulations that apply to the Biodiesel Fuel Education Program. It describes the process for handling confidential aspects of applications and awards and defines terms that are used elsewhere in the rule.

OEPNU currently is using the services of CSREES to administer this Program. CSREES obtained information collection approval for the “Generic Application Kit” (OMB Approval No. 0524-0039), which encompasses the use of required forms to administer another USDA agency's grant program. Should OEPNU decide to administer this Program directly in the future, OEPNU will comply independently with information collection requirements.

USDA certifies that this rule will not have a significant impact on a substantial number of small entities as defined in the Regulatory Flexibility Act, Public Law 96-354, as amended (5 U.S.C. 601, et seq. ) because it is a Federal assistance program, not a regulatory regime, and awards will be made to fewer than ten entities.

This rule has been reviewed under Executive Order 12866 and has been determined to be nonsignificant as it will not create a serious inconsistency or otherwise interfere with an action planned by another agency; will not materially alter the budgetary impact of entitlement, grants, user fees, or loan programs, or rights and obligations of the recipients thereof; and will not raise novel legal or policy issues arising out of legal mandates, the President's priorities, or principles set forth in this Executive Order. This rule will not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health, or safety, or State, local, or tribal governments or communities.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), the Department assessed the effects of this rulemaking action on State, local, and Tribal government, and the public. This action does not compel the expenditure of $100 million or more by any State, local, or Tribal governments, or anyone in the private sector. Therefore, a statement under section 202 of the Unfunded Mandates Reform Act of 1995 is not required.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(1) Does not have an annual effect on the economy of $100 million or more;

(2) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and

(3) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. In accordance with that Executive Order: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) no administrative proceedings are required before bringing any judicial action regarding this rule.

In accordance with Executive Order 13132, this rulemaking does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. The policies contained in this rule do not have any substantial direct effect on the policymaking discretion of 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. Nor does this rule impose substantial direct compliance costs on State and local governments.

For the reasons set forth in the Final Rule Related Notice for 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this program is excluded from the scope of the Executive Order 12372 which requires intergovernmental consultation with State and local officials. This program does not directly affect State and local governments.

The policies contained in this rulemaking do not have tribal implications and thus no further action is required under Executive Order 13175.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2003-11-18, Amendment 39-13177 (68 FR 33844, June 7, 2003), which is applicable to PW model PW4050, PW4052, PW4056, PW4060, PW4060A, PW4060C, PW4062, PW4152, PW4156, PW4156A, PW4158, PW4160, PW4460, PW4462, and PW4650 turbofan engines, was published in the Federal Register on July 21, 2003 (68 FR 43033). That action proposed to mandate the same interim actions as AD 2003-11-18 (with some modifications based on AMOC approvals) to address engine takeoff power loss events, until the RCC rear HPC is incorporated in the PW4000 engines. That action also proposed to mandate the same terminating actions as AD 2003-11-18, which incorporates the RCC rear HPC on engines installed in the Boeing fleet. That action also proposed to mandate the terminating actions to incorporate the RCC rear HPC on engines installed in the Airbus fleet.

AD 2003-11-18 and the proposal noted that RCC rear HPC certification to 14 CFR part 25 was pending for engines installed in the McDonnell Douglas fleet. The AD and proposal noted that once certified, the terminating action requirements would be added for the McDonnell Douglas MD-11 fleet, by a superseding AD. Based on comments received on the proposal, and the recent 14 CFR part 25 certification for RCC rear HPC engines to be installed in McDonnell Douglas MD-11 airplanes, this AD adds the terminating action requirements for the MD-11 fleet.

Interested persons have been afforded an opportunity to participate in the making of this amendment. We received comments from four operators and one airframe manufacturer, who all agree with the technical aspects of the proposal, but have concerns with the procedural aspects of the proposal. Due consideration has been given to the comments received.

One commenter states there is a typographical error in proposal paragraph (u)(3)(ii). In that paragraph, August 31, 2007, should read August 31, 2006.

The FAA agrees and has changed the final rule accordingly.

One commenter recommends adding the engine manual references of PW4000 EM 50A605, 71-00-00, Testing-21, dated June 15, 2003, and PW4000 EM 50A822, 71-00-00, Testing-21, dated March 15, 2002, to paragraph (j)(2) of the proposal. The commenter states that this is needed to ensure that engines tested before the effective date of this superseding AD but after the effective date of AD 2003-11-18 are in compliance.

The FAA does not agree. AD 2003-11-18 already requires Testing-21 to be done in paragraph (j)(1) of the proposal, in accordance with the recommended references regardless if the testing was done before or after the effective date of AD 2003-11-18. Therefore, compliance is achieved, and no changes are made to the final rule based on this comment.

Three commenters state that in general, when the FAA supersedes ADs, operators must review and revise engineering and maintenance program documentation because the superseded AD carries a new AD number. In this case, the commenters state that since the changes proposed in the NPRM are essentially changes to the effectivity, and not to any of the technical requirements, the expense to operators that results from this AD being superseded would create an undue economic burden. The commenters suggest that the FAA either delay issuing this AD until the McDonnell Douglas MD-11 terminating action can be included, in order to prevent yet another supersedure, or change the superseding AD to a revision to AD 2003-11-18, or issue separate ADs to cover the Airbus fleet and the McDonnell Douglas MD-11 fleet instead of combining all fleets into a single AD as proposed.

The FAA does not agree. Almost a year ago the FAA announced that it would be adding required terminating action to the existing AD by superseding the AD as that terminating action was approved for use on engines installed in the various airplane fleets. The FAA received no comments regarding the use of that method of adding terminating action. When the FAA first superseded the AD to add required terminating action for engines installed in the Boeing fleet, no commenters objected and one commenter even stated that it expected the FAA to supersede the AD again once the terminating action was approved for use on engines installed in the Airbus and McDonnell Douglas fleets. Therefore, the FAA provided ample notice to operators of the intention to supersede the AD on multiple occasions. Including this action, the FAA has superseded a total of eight ADs while addressing the takeoff power surge condition in PW4000 engines. Therefore, the FAA does not agree that this additional supersedure will create an undue or unforeseen economic burden. The FAA does recognize, however, that by issuing an AD that supersedes a previous AD, rather than revising the previous AD, that operators may have to make additional entries in their maintenance records. This is a long-standing issue that pre-dates by many years this particular series of ADs addressing the PW4000 takeoff power surge issue. Approximately 13 years ago, in response to the desires of many operators who did not include a revision number in their maintenance documentation programs, the FAA established criteria for when we would issue an AD as a revision, thus keeping the root AD number the same, and when we would issue a superseding AD, thereby changing the AD number. Generally, the FAA issues a superseding AD when making a change to an instruction or referenced document that affects the substance of the required actions. Even though the applicability of each of the ADs in this series remained the same, supersedures were warranted as we made substantive changes to the regulatory requirements in each subsequent AD, for example, adding mandatory terminating action. Therefore, this AD remains as a supersedure, as proposed. In an effort to keep the economic burden on operators as low as possible, however, the FAA has decided to include in this final rule the mandatory terminating action for engines installed in McDonnell Douglas MD-11 airplanes. Engines incorporating the RCC rear HPC were only recently approved for installation on McDonnell Douglas MD-11 airplanes. Since the original proposal to add mandatory terminating action contemplated that the RCC rear HPC would eventually be required for engines installed in the McDonnell Douglas MD-11 fleet, and since operators expected that the FAA would take that action, the FAA is adding that mandatory action to this final rule, in part, to avoid having to propose yet another superseding AD.

Based on the potential for operators to have already incorporated the RCC rear HPC before the effective date of this AD, a paragraph has been added to the AD to allow credit for incorporating the RCC rear HPC before the effective date of the AD.

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

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

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

What events have caused this AD? The LBA, which is the airworthiness authority for Germany, recently notified FAA that an unsafe condition may exist on all GROB Models G103 TWIN ASTIR, G103 TWIN II, G103A TWIN II ACRO, and G103C TWIN III 2 ACRO sailplanes. The LBA reports that the safety margins established into the design of the fuselage may not be sufficient to sustain limit loads during certain maneuvers and during flight at certain speeds.

The manufacturer will continue to investigate the effects of certain flight conditions on the fuselage structure. After completing this investigation, FAA may take additional AD action.

What are the consequences if the condition is not corrected? If not prevented, damage to the fuselage could result in reduced structural integrity. This condition could lead to loss of control of the sailplane.

Is there service information that applies to this subject? GROB has issued Alert Service Bulletin No. ASB315-63/2, dated June 2, 2003, and Alert Service Bulletin No. ASB315-64, dated June 30, 2003.

What are the provisions of this service information? These service bulletins include procedures for:

What action did the LBA take? The LBA classified these service bulletins as mandatory and issued German AD Number 2003-185, dated May 30, 2003, and German AD Number 2003-231, dated July 16, 2003, in order to ensure the continued airworthiness of these sailplanes in Germany.

Was this in accordance with the bilateral airworthiness agreement? These GROB Models G103 TWIN ASTIR, G103 TWIN II, G103A TWIN II ACRO, and G103C TWIN III ACRO sailplanes are manufactured in Germany and are type-certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement.

Per this bilateral airworthiness agreement, the LBA has kept us informed of the situation described above.

What has FAA decided? We have examined the LBA's findings, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since the unsafe condition described previously is likely to exist or develop on other GROB Models G103 TWIN ASTIR, G103 TWIN II, G103A TWIN II ACRO, and G103C TWIN III ACRO sailplanes of the same type design that are registered in the United States, this AD is being issued to prevent the possibility of damage to the fuselage during limit load flight due to inadequate safety margins designed into the fuselage. Such a condition could result in reduced structural integrity of the fuselage and lead to loss of control of the sailplane.

What does this AD require? This AD requires you to incorporate the actions in the previously-referenced service bulletins.

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

What are the differences between this AD, the LBA AD, and the service information? The LBA AD and the service information require completion of the actions required in this AD prior to further flight. We require completion of all actions within the next 10 hours time-in-service (TIS) after the effective date of this AD.

We do not have justification to require this action prior to further flight. We use compliance times such as this when we have identified an urgent safety of flight situation. We believe that 10 hours TIS will give the owners or operators of the affected airplanes enough time to have the actions required by this AD accomplished without compromising the safety of the airplanes.

How does the revision to 14 CFR part 39 affect this proposed AD? On July 10, 2002, we 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 altered products, special flight permits, and alternative methods of compliance. 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? This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “AD Docket No. 2003-CE-35-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. If a person contacts us through a nonwritten communication, and that contact relates to a substantive part of this AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend the AD in light of those comments.

Will this AD impact various entities? We have determined that this AD will not have federalism implications under Executive Order 13132. This AD 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.

Will this proposed AD involve a significant rule or regulatory action? For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2003-CE-35-AD” in your request.

What events have caused this AD ? The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, recently notified FAA that an unsafe condition may exist on all GROB Model G120A airplanes. The LBA reports that a damaged ball bearing in a flight control system operating lever was found. The damage was found during regular maintenance. It is believed that the damage was caused by incorrect installation.

What is the potential impact if FAA took no action ? If not corrected, this condition could cause failure of a ball bearing in affected flight control system operating levers. Such failure could result in reduced control or loss of control of the airplane.

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 GROB Model G120A. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on July 15, 2003 (68 FR 41760). The NPRM proposed to require you to modify the flight control system operating levers.

Was the public invited to comment ? We provided the public the opportunity to participate in the development of this AD. We received no comments on the proposal or on the determination of the cost to the public.

What is FAA's final determination on this issue ? We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. We have determined that these minor corrections:

How does the revision to 14 CFR part 39 affect this AD ? On July 10, 2002, the FAA published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's AD system. This regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. 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.

How many airplanes does this AD impact ? We estimate that this AD affects 6 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes ? We estimate the following costs to accomplish the modifications:

Will this AD impact various entities ? We have determined that this AD will not have federalism implications under Executive Order 13132. This AD 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.

Will this AD involve a significant rule or regulatory action ? For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2003-CE-26-AD” in your request.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Dornier Model 328-300 series airplanes was published in the Federal Register on July 15, 2003 (68 FR 41762). That action proposed to require a one-time inspection of the anti-ice tubing in the engine nacelle at the joint between the anti-ice tubing adapter and duct, and also between the joint of the anti-ice shutoff valve and the same duct, to detect any air leakage at the joints.

The FAA provided the public the opportunity to participate in the development of this AD. We received no comments on the proposed AD or on the determination of the cost to the public.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

We estimate that 48 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to do the inspection, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $3,120, or $65 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description on each SIAP is contained in the appropriate FAA Form 8260 and the National Flight Data Center (FDC)/Permanent (P) Notices to Airmen (NOTAM) which are incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation's Regulations (FAR). Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction of charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes SIAPs. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained in the content of the following FDC/P NOTAMs for each SIAP. The SIAP information in some previously designated FDC/Temporary (FDC/T) NOTAMs is of such duration as to be permanent. With conversion to FDC/P NOTAMs, the respective FDC/T NOTAMs have been canceled.

The FDC/P NOTAMs for the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Further, the SIAPs contained in this amendment are based on the criteria contained in the TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(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) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The Caribbean Basin Economic Recovery Act (the CBERA, also referred to as the Caribbean Basin Initiative, or CBI, statute, codified at 19 U.S.C. 2701-2707) instituted a duty preference program that applies to exports of goods from those Caribbean Basin countries that have been designated by the President as program beneficiaries. On May 18, 2000, the President signed into law the Trade and Development Act of 2000, Public Law 106-200, 114 Stat. 251, which included as Title II the United States-Caribbean Basin Trade Partnership Act, or CBTPA. The CBTPA provisions included section 211 which amended section 213(b) of the CBERA (19 U.S.C. 2703(b)) in order to, among other things, provide in new paragraph (2) for the preferential treatment of certain textile and apparel articles, specified in subparagraph (A), that had previously been excluded from the CBI duty-free program. The preferential treatment for those textile and apparel articles under paragraph (2)(A) of section 213(b) involves not only duty-free treatment but also entry in the United States free of quantitative restrictions, limitations, or consultation levels. Paragraph (2)(A) of the statute includes, in clause (iv), a specific provision covering brassieres from designated CBTPA beneficiary countries.

On October 2, 2000, the President signed Proclamation 7351 to implement the provisions of the CBTPA. This Proclamation, which was published in the Federal Register (65 FR 59329) on October 4, 2000, modified the Harmonized Tariff Schedule of the United States (HTSUS) by, among other things, the addition of a new Subchapter XX to Chapter 98 to address the majority of the textile and apparel provisions of the CBTPA. Within that Subchapter XX, the brassieres provision of paragraph (2)(A)(iv) of the CBTPA statute is dealt with in U.S. Note 2(d) and in subheading 9820.11.15.

On October 5, 2000, the U.S. Customs Service (now the Bureau of Customs and Border Protection (CBP)) published in the Federal Register (65 FR 59650) T.D. 00-68 to amend the Customs Regulations on an interim basis in order to set forth basic legal requirements and procedures that apply for purposes of obtaining preferential treatment of textile and apparel articles pursuant to the provisions added to section 213(b) by the CBTPA. Those interim regulations, consisting of §§ 10.221 through 10.227 of the Customs Regulations (19 CFR 10.221 through 10.227), include, in paragraph (a) of § 10.223, a list of the various groups of articles that are eligible for preferential treatment under the statute. Paragraph (a)(6) of § 10.223 specifically addressed the basic CBTPA brassieres provision of subclause (I) of paragraph (2)(A)(iv) of the statute and subheading 9820.11.15 of the HTSUS. The regulatory texts set forth in T.D. 00-68 did not address subclauses (II) and (III) of paragraph (2)(A)(iv) of the statute and U.S. Note 2(d) of Subchapter XX, Chapter 98, HTSUS, because under the terms of the statute those provisions applied only to articles entered on or after October 1, 2001.

On October 4, 2001, CBP (as legacy Customs) published in the Federal Register (66 FR 50534) T.D. 01-74 to amend the Customs Regulations on an interim basis in order to implement the terms of subclauses (II) and (III) of paragraph (2)(A)(iv) of the statute and U.S. Note 2(d) of Subchapter XX, Chapter 98, HTSUS. Those regulatory amendments involved primarily the addition of a new § 10.228 which set forth specific rules for the application of the minimum 75 and 85 percent U.S. fabric component content requirements under subclauses (II) and (III) that took effect for purposes of preferential treatment of brassieres described in subclause (I) starting on October 1, 2001.

On August 6, 2002, the President signed into law the Trade Act of 2002 (the “Act”), Public Law 107-210, 116 Stat. 933. Section 3107(a) of the Act made a number of changes to the textile and apparel provisions of paragraph (2)(A) of section 213(b) of the CBERA. The amendments made by section 3107(a) of the Act included a revision of the brassieres provisions of paragraph (2)(A)(iv) of the statute which involved the following textual changes: (1) Subclause (I) was amended by the addition of exception language regarding articles covered by certain other clauses under paragraph (2)(A); and (2) subclauses (II) and (III) were amended by replacing each reference to “fabric components” with “fabrics,” by adding exclusion language regarding findings and trimmings after each reference to fabric(s), and by adding various references to articles that are “entered” and that are “eligible” under clause (iv). The principal effects of the language changes within subclauses (II) and (III) were: (1) Adoption of a cost or value percentage standard based on a comparison between U.S. fabric and all fabric (rather than based on a comparison between U.S. fabric components and all fabric) contained in the articles; and (2) removal of the requirement that the articles must be both produced and entered in the same year. The amended paragraph (2)(A)(iv) text now reads as follows:

On November 13, 2002, the President signed Proclamation 7626 (published in the Federal Register at 67 FR 69459 on November 18, 2002) which included, among other things, modifications to the HTSUS to implement the changes to section 213(b)(2)(A) of the CBERA made by section 3107(a) of the Act. Those modifications included an amendment of U.S. Note 2(d) to Subchapter XX, Chapter 98, HTSUS, to reflect the changes to subclauses (II) and (III) of paragraph (2)(A)(iv) of the statute discussed above. The Proclamation further provided that this amendment of U.S. Note 2(d) was effective with respect to goods entered, or withdrawn from warehouse for consumption, on or after October 1, 2002.

As a consequence of the statutory amendments described above and as a result of the modifications to the HTSUS made by Proclamation 7626, the interim regulatory provisions published in T.D. 01-74 no longer reflect the current standards that apply for purposes of preferential treatment of brassieres under the CBERA. CBP notes in this regard that the effect of the statutory changes requires changes throughout the text of interim § 10.228. Moreover, following publication of T.D. 01-74, some other issues came to the attention of CBP that warrant additional changes to the interim § 10.228 text.

Accordingly, this interim rule document revises interim § 10.228 in its entirety to reflect the amendments to the statute and to clarify or otherwise improve the previously published text. This document is limited to the text of interim § 10.228 and therefore does not address the change that the Act made to paragraph (2)(A)(iv)(I) of the statute; that provision was reflected in § 10.223(a)(6) within the interim CBTPA regulations published in T.D. 00-68 referred to above and is discussed in a separate interim rule document that addresses the other statutory changes to the CBERA made by the Act.

It is the intention of CBP, after the close of the public comment period prescribed in this document, to publish one final rule document that addresses the revised § 10.228 provisions contained in this document and the other regulatory changes pertaining to brassieres under the CBTPA that were published in T.D. 01-74. That final rule document will summarize and respond to the public comments previously submitted on the changes to §§ 10.222 and 10.223(a)(7) published in T.D. 01-74 and will also address any comments submitted on the revised § 10.228 text set forth in this document. Because CBP has significantly modified § 10.228 in this document, CBP will not consider or address any public comments previously submitted on the text of § 10.228 as published in T.D. 01-74 that have been addressed by statutory changes. Any other comments previously submitted will be addressed. If a member of the public wishes to have CBP consider a new issue involving § 10.228, a new comment setting forth that issue may be submitted in accordance with the comment procedures prescribed in this document.

The interim regulatory changes to § 10.228 contained in this document are discussed below.

The changes to § 10.228 set forth in this document that are in response to the changes made to paragraph (2)(A)(iv) of the statute by section 3107(a) of the Act are as follows:

1. The definition of “fabric components formed in the United States” in paragraph (a)(3) has been replaced by a definition of “fabrics formed in the United States” to reflect the fact that subclauses (II) and (III) of the statute no longer refer to fabric “components.” Similarly, the definition of “cost” in paragraph (a)(4) and the definition of “declared customs value” in paragraph (a)(5) have been modified to refer simply to “fabrics.”

2. The following changes have been made to paragraph (b) which concerns the 75/85 percent U.S. fabric content requirements for preferential treatment in subclauses (II) and (III) of the statute:

a. In the introductory text of paragraph (b)(1), reference is made to the year that begins on “October 1, 2002” (rather than “October 1, 2001”) to reflect the applicable effective date set forth in Proclamation 7626.

b. Throughout the paragraph (b) texts, all references to U.S.-formed “fabric components” have been replaced by references to U.S.-formed “fabric,” the words “produced and” have been removed from the expression “produced and entered,” and the parenthetical reference “(exclusive of all findings and trimmings)” has been added as appropriate after references to “fabrics” and “fabric.” These changes simply conform the regulatory text to the wording changes in the statute.

c. Paragraph (b)(1)(i), which concerns the 75 percent requirement of subclause (II) of the statute, has been changed to refer to articles that are “entered as articles described in § 10.223(a)(6),” and paragraph (b)(1)(ii), which concerns the 85 percent requirement of subclause (III) of the statute, has been changed to refer to articles that “conform to the production standards set forth in § 10.223(a)(6).” These wording changes are in response to the statutory wording changes regarding articles that are “entered” and that are “eligible” under clause (iv). The differences in wording in the two regulatory texts are necessary in order to enable the 85 percent standard to operate. CBP notes in this regard that if the universe of articles that are looked at for purposes of assessing compliance with the 85 percent standard is the same as that used for purposes of the 75 percent standard (that is, articles that were entered under the HTSUS subheading that applies to articles described in paragraph (2)(A)(iv)(I) of the statute and § 10.223(a)(6)), it would be impossible in the first year following the statutory changes (that is, starting on October 1, 2002) for a new producer or entity to enter the program, or for a producer or entity that failed to meet the 75 percent standard in the previous year to reenter the program. This is because application of the 85 percent standard presupposes a failure to have met the 75 percent standard in the preceding year, in which case there could not be any entries in the next year under the HTSUS subheading that applies to articles described in paragraph (2)(A)(iv)(I) of the statute and § 10.223(a)(6) against which compliance with the 85 percent standard can be determined. The wording used in paragraph (b)(1)(ii) of the regulatory text (which is also reflected in the general statement of the paragraph (b)(1) introductory text and in the general rule in paragraph (b)(2)(i)(A)), by referring to articles that meet the U.S./Caribbean cutting and assembly production requirement (regardless of the HTSUS subheading under which they are entered), is intended to avoid this anomalous result.

d. In the general rules of application set forth in paragraph (b)(2)(i), two new subparagraphs (C) and (D) have been added to clarify the application of the different regulatory language for the 75 and 85 percent standards discussed at point c. above, and former subparagraph (D) has been removed because it concerned the year of production which is no longer relevant under the amended statutory text.

e. Also in paragraph (b)(2)(i), former subparagraph (C) has been redesignated as subparagraph (E) and the text has been modified, and a new subparagraph (L) has been added, primarily to reflect that the findings and trimmings referred to in the context of brassieres are not limited to foreign findings and trimmings.

f. Also in paragraph (b)(2)(i), former subparagraph (E) has been redesignated as subparagraph (G) and the text, which concerns a new producer or new entity controlling production, has been revised to incorporate the new wording (“entered as articles described in § 10.223(a)(6)”) of paragraph (b)(1)(i) and to clarify what CBP believes is a necessary conclusion under the statutory text, that is, that in the described context the producer or entity must first meet the 85 (rather than the 75) percent standard.

g. In paragraph (b)(2)(ii), a new Example 2 and a new Example 3 have been added to cover new subparagraphs (C) and (D) of paragraph (b)(2)(i), and Examples 2 through 6 consequently have been redesignated as Examples 4 through 8.

h. Also in paragraph (b)(2)(ii), redesignated Example 6 has been revised in order to replace the former “produced and entered” in the same year scenario with a factual pattern addressing the 75 versus 85 percent standard and entry in different years.

i. Also in paragraph (b)(2)(ii), redesignated Example 7 has been revised in order to reflect that the 85 percent standard (rather than the 75 percent standard) applies to a new producer or entity controlling production, as stated in redesignated and revised subparagraph (G) of paragraph (b)(2)(i).

3. In paragraph (c)(3)(i), the text of the declaration of compliance has been modified by removing each reference to “components” and by removing the words “produced and” before the word “entered” in blocks 4 and 6, in each case to reflect changes in statutory language.

4. Finally, in paragraph (d)(1)(v), the next to last sentence has been modified to state that the inventory records must indicate that the required production occurred (rather than “identify the date of” production), and the last sentence has been modified to refer to purchases made during the “accounting period” (rather than “year”), because the year of production is not relevant under the amended statute.

In addition to the changes described above that result from the changes made to the statute by section 3107(a) of the Act, CBP has included a number of other changes in the revised text of § 10.228 set forth in this document. These additional changes, which are intended to clarify or otherwise improve the interim regulatory texts, are as follows:

1. The definition of “cost” in paragraph (a)(4) and the definition of “declared customs value” in paragraph (a)(5) have been revised for purposes of clarity, in particular in order to include rules covering cases in which there is no price based on an exportation to a CBTPA beneficiary country.

2. The definition of “year” in paragraph (a)(6) has been reworded for purposes of clarity.

3. In Example 1 under paragraph (b)(2)(ii), the words “in the first year” have been added to the scenario in the first sentence to clarify that the year in question is one during which the 75 percent standard must be met.

4. In Example 5 under paragraph (b)(2)(ii), the references to foreign origin straps have been replaced by references to “strips and labels” to ensure that the example is clearly directed to findings and trimmings and not to materials that are considered to be components of brassieres.

5. In paragraph (c)(3)(i), the text of the declaration of compliance has been modified by replacing the words “all articles” with “brassieres” in blocks 4 through 6 and by simplifying the wording within block 6.

6. Finally, in paragraph (c)(3)(ii), the subparagraph (E) instruction for completion of block 6 has been removed in light of the simplification of the block 6 text, and former subparagraph (F) consequently has been redesignated as (E).

Before adopting these interim regulations as a final rule, consideration will be given to any written comments timely submitted to CBP, including comments on the clarity of this interim rule and how it may be made easier to understand. Comments submitted will be available for public inspection in accordance with the Freedom of Information Act (5 U.S.C. 552) and § 103.11(b) of the Customs Regulations (19 CFR 103.11(b)), on regular business days between the hours of 9 a.m. and 4:30 p.m. at the Office of Regulations and Rulings, Bureau of Customs and Border Protection, 799 9th Street, NW., Washington, DC. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at (202) 572-8768.

Pursuant to the provisions of 5 U.S.C. 553(b)(B), CBP has determined that prior public notice and comment procedures on these regulations are unnecessary and contrary to the public interest. The regulatory changes provide trade benefits to the importing public, in some cases implement direct statutory mandates, and are necessary to carry out the preferential treatment and United States tariff changes proclaimed by the President under the Caribbean Basin Economic Recovery Act. For the same 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 is required for interim regulations, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply.

This document does not meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

The collection of information contained in this interim rule has previously been reviewed and approved by the Office of Management and Budget (OMB) in accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) under OMB control number 1515-0226.

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

This regulation is being issued in accordance with 19 CFR 0.1(c)(1).

Washington State Department of Transportation (WSDOT) requested this deviation from normal operations of the dual First Avenue South bascule bridges in order to facilitate painting. The containment system for contaminants and other equipment must be modified or removed in order to operate the movable span. WSDOT has proposed to work on one leaf of the bascules at a time so that one side of the bridges may remain operable according to the normal operating regulations of the bridge. In this way, vessels that can safely pass one-leaf openings may continue to pass the bridge during the project. Other vessels need to provide five hours notice for opening both sides of the bascule spans from 6 a.m. on September 15 through 6 p.m. on November 11, 2003. The five hours minimum notice will enable the contractor to remove equipment, adjust rigging, and evacuate workers from the leaf. Currently, the draws need not open for the passage of vessels from 6 a.m. to 9 a.m. and from 3 p.m. to 6 p.m. Monday through Friday, except all Federal holidays but Columbus Day. Currently, the draws shall open at any time for vessels of 5000 gross tons and over, a vessel towing a vessel of 5000 gross tons and over, or a vessel proceeding to pick up for towing a vessel of 5000 gross tons and over. At other times the draws open on signal for the passage of vessels. Vessels on the related reach of the waterway should be able to provide at least five hours notice for double-leaf openings without unreasonable inconvenience. Traffic on the waterway includes container barges with regularly scheduled movements as well as sailboats, motor yachts, and tugboats. Large vessels of 5000 gross tons have not passed through the dual bridges in recent years. This deviation does not exempt these vessels from the five hours notice. The bridges when closed provide 32 feet of vertical clearance above mean high water for the central 100 feet of the drawspans.

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

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rules we are approving with the date that they were revised by the local air agency and submitted by the California Air Resources Board (CARB).

On December 3, 2002, this submittal was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

We approved a version of MBUAPCD Rules 412 and 413 into the SIP on July 13, 1987 (52 FR 26148).

Sulfur oxides help produce ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control sulfur oxides emissions.

Rule 412 limits the sulfur content of fuels burned in the MBUAPCD jurisdiction. The purpose of the revision to Rule 412 is to extend the sulfur compound limitation to gaseous fuels.

Rule 413 clarifies the requirements of Rule 412. The purpose of the revision to Rule 413 is to improve the format and text.

Generally, SIP rules must be enforceable ( see section 110(a) of the CAA), must require Reasonably Available Control Technology (RACT) for nonattainment areas ( see section 172(c)(1) and must not relax existing requirements ( see sections 110(l) and 193). The MBUAPCD regulates a sulfur oxides attainment area and need not fulfill RACT requirements. See 40 CFR part 81.

The following guidance documents were used for reference:

• Requirements for Preparation, Adoption, and Submittal of Implementation Plans, U.S. EPA, 40 CFR part 51.

• Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations, EPA (May 25, 1988) (the Bluebook).

Rule 412 increases the stringency of the requirements with the changes cited above. Rule 413 improves the SIP by reformatting and rewording. We believe the rules are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. The TSDs have more information on our evaluation.

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this, so we are finalizing the approval without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by October 30, 2003, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on December 1, 2003. This will incorporate these rules into the federally-enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this direct final rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

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

Throughout this document “we,” “us,” or “our” means EPA.

In today's action we are taking direct final action to approve revisions to Title 30 of the Texas Administrative Code (30 TAC) Section 116.112—Distance Limitations into the Texas SIP. The TCEQ adopted these revisions on December 18, 2002, and submitted the revisions to us for approval as a revision to the SIP on January 3, 2003.

Section 116.112 currently establishes distance limitations for lead smelters in Section 116.112(1) and distance limitations for hazardous waste permits in Section 116.112(2). The existing distance limitations were approved September 18, 2002 (67 FR 58607).

On December 18, 2002, TCEQ added a new paragraph (3) to Section 116.112, to implement House Bill (HB) 2912, Section 5.07, 77th Texas State Legislature, 2001. HB 2912, Section 5.07 amended the Texas Health and Safety Code to add a new Section 382.065, which requires the TCEQ, by rule, to restrict the location or operation of new and relocated concrete crushing facilities. Paragraph (3) requires all equipment associated with a concrete crushing facility to be located or operated at least 440 yards from any building used as a single or multi-family residence, school, or place of worship. The distance limitation does not apply to existing concrete crushing facilities which are authorized and actually located or operating at the site as of September 1, 2001. An existing facility does not include a concrete crushing facility authorized but not actually located or operating at the site as of September 1, 2001.

The restriction on location and operation of new or relocated concrete crushing plants provides additional protection for persons occupying any building used as a single or multi-family residence, school, or place of worship. This restriction strengthens the existing SIP by providing additional assurance that occupants in such buildings will not be adversely affected by exposure to the air contaminants emitted from concrete crushing facilities. This provision, together with the existing SIP-approved provisions of Section 116.111(2)(A)(i), will ensure better protection of public health and welfare. This meets the requirement in 40 CFR 51.160(a) that each plan include legally enforceable procedures to determine whether the construction or modification of a facility, building, structure, or installation, or combination of these will result in (1) a violation of applicable portions of the control strategy; or (2) interference with attainment or maintenance of a national standard in the state in which the proposed source (or modification) is located or in a neighboring state. Compliance with this distance requirement to locate a concrete crushing plant at least 440 yards from any building used as a single or multi-family residence, school, or place of worship, will help ensure that the requirements of 40 CFR 51.160 are met.

The revision also meets 40 CFR 51.160(e) by identifying a type of facility that will be subject to review under 40 CFR 51.160(a). In this case, Texas has identified concrete crushing facilities and specified a distance requirement for such facilities.

This distance limitation does not apply to an existing concrete crushing facility which was authorized and actually located or operating at a site as of September 1, 2001. This provision allows an existing concrete crushing facility to continue operating at the site and to change its existing permit at such a site without being required to meet the distance limitation that otherwise applies to new and relocated facilities. If an existing facility were to relocate to another location after September 1, 2001, then the facility must comply with the distance limitation in Section 116.112(3).

As proposed by TCEQ on September 27, 2002, the distance limitations in Section 116.112(3) would have applied to all equipment and stockpiles associated with a concrete crushing facility. In response to public comments on the proposed rule, the TCEQ changed the rule to remove the references to stockpiles. This change was based upon TCEQ's determination that a stockpile associated with a concrete crushing facility is not subject to House Bill (HB) 2912, Section 5.07, the legislation that required TCEQ to adopt this distance limitation.

The exclusion from the distance limitation in Section 116.112(3) to an existing concrete crushing facility authorized and actually located or operating at a site as of September 1, 2001, and to stockpiles associated with a concrete crushing facility does not affect our ability to approve the distance limitations in Section 116.112(3). Such facilities must continue to meet the existing SIP-approved requirements in Section 116.111(2)(A)(i), which require sources subject to new source permitting in Texas to protect public health and welfare. This meets the requirements of 40 CFR 51.160(a) by ensuring that emissions from such facilities will not interfere with the attainment or maintenance of a national standard. Such facilities are also subject to the current SIP-approved requirements of Section 116.111(2)(A)(ii) which provides that when TCEQ issues a permit for construction or modification of any facility within 3,000 feet of an elementary, junior high/middle, or senior high school, the TCEQ shall consider any adverse short-term or long-term side effects that an air contaminant or nuisance odor from the facility may have on the individuals attending the schools. This ensures protection of individuals in such schools from adverse effects of emissions of air contaminants from such facilities.

The Technical Support Document, which is part of the record for this action, contains more detailed information on how the revision meets the requirements of the Act, including Section 110 and implementing regulations.

We are approving as a revision to the Texas SIP revisions of 30 TAC Section 116.112—Distance Limitations, which Texas submitted on January 3, 2003. We are processing this action as a direct final action because it adds noncontroversial regulations to the SIP. We do not anticipate any relevant adverse comments. However, we are today publishing in the “Proposed Rules” section of today's Federal Register a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will become effective on December 1, 2003 without further notice unless we receive adverse comment by October 30, 2003. If we receive such comments, we will publish a document withdrawing the direct final rule in the Federal Register and informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Parties interested in commenting must do so at this time. If no such comments are received, the public is advised that this rule will be effective on December 1, 2003. Please note that if we receive adverse comment on a part of this rule and if the part can be severed from the remainder of the rule, we may adopt as final those parts of the rule that are not subject to an adverse comment.

The EPA is committed to ensuring public access to the information used to inform the public of the Agency's decisions regarding the environment and human health and to ensuring that the public has an opportunity to participate in the Agency's decision-making process. The official public rulemaking file consists of the documents specifically referenced in a particular agency action, any public comments received, and other information related to the action. The public rulemaking file does not include Confidential Business Information (CBI) or other information for which disclosure is restricted by statute, although such information is a part of the Agency's official administrative record for the action.

1. An official public rulemaking file is available for inspection at the Regional Office. The Regional Office has established an official public rulemaking file for this action under Identification Number (ID No.) TX-155-1-7591. The public rulemaking file is available for viewing at the Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. Contact the person listed in the “For Further Information Contact” section to schedule your inspection. If possible, schedule the appointment two working days in advance of your visit. Official hours of business for the Regional Office are Monday through Friday, 8:30 a.m. to 4 p.m. excluding federal holidays. Copies of any State submittals and EPA's technical support document are also available for public inspection at the State Air Agency during official business by appointment.

Texas Commission on Environmental Quality, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.

2. You may access this Federal Register document electronically through the Regulations.gov Web site located at http://www.regulations.gov. The Regulations.gov Web site is the central online rulemaking portal of the United States government and is a public service to increase participation in the government's regulatory activities by offering a central point for submitting comments on regulations.

You may submit comments electronically, by mail, through hand delivery/courier or by facsimile. Instructions for submitting comments by each method are discussed below. To ensure proper receipt by EPA, identify the appropriate ID No. in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” The EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Section D below.

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

i. E-mail. Comments may be submitted by electronic mail (e-mail) to Mr. Stanley M. Spruiell at spruiell.stanley@epa.gov , Attention “Public comment on ID No. TX-155-1-7591”. In contrast to the Regulations.gov Web site, EPA's e-mail system is not an “anonymous” system. If you send an e-mail comment directly to EPA, your e-mail address will be automatically captured and included as part of the comment that is placed in the official public rulemaking file.

ii. Regulations.gov. Comments may be submitted electronically at the Regulations.gov Web site, the central online rulemaking portal of the United States government. Every effort is made to ensure that the Web site includes all rule and proposed rule notices that are currently open for public comment. You may access the Regulations.gov Web site at http://www.regulations.gov. Select “Environmental Protection Agency” at the top of the page and click on the “Go” button. The list of current EPA actions available for comment will be displayed. Select the appropriate action and follow the online instructions for submitting comments. Unlike EPA's e-mail system, the Regulations.gov Web site is an “anonymous” system, which means that any personal information, e-mail address, or other contact information will not be collected unless it is provided in the text of the comment. See the Privacy Notice at the Regulations.gov Web site for further information. Please be advised that EPA cannot contact you for any necessary clarification unless your contact information is included in the body of comments submitted through the Regulations.gov Web site.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to: Mr. Guy Donaldson, Acting Chief, Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. Please include the text “Public comment on ID No. TX-155-1-7591” on the disk or CD ROM. These electronic submissions will be accepted in WordPerfect, Word, or ASCII file format. You should avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: Mr. Guy Donaldson, Acting Chief, Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. Please include the text “Public comment on ID No. TX-155-1-7591” in the subject line of the first page of your comments.

3. By Hand Delivery or Courier. Deliver your written comments or comments on a disk or CD ROM to: Mr. Guy Donaldson, Acting Chief, Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, Attention “Public comment on ID No. TX-155-1-7591.” Such deliveries are only accepted during official hours of business, which are Monday through Friday, 8:30 a.m. to 4 p.m., excluding federal holidays.

4. By Facsimile. Fax your comments to: (214) 665-7263, Attention “Public comment on ID No. TX-155-1-7591.”

You may assert a business confidentiality claim covering CBI information included in comments submitted by mail or hand delivery in either paper or electronic format. CBI should not be submitted via e-mail or at the Regulations.gov Web site. Clearly mark any part or all of the information submitted which is claimed as CBI at the time the comment is submitted to EPA. CBI should be submitted separately, if possible, to facilitate handling by EPA. Submit one complete version of the comment that includes the properly labeled CBI for EPA's official administrative record and one copy that does not contain the CBI to be included in the public rulemaking file. If you submit CBI on a disk or CD ROM, mark the outside of the disk or the CD ROM that it contains CBI and then identify the CBI within the disk or CD ROM. Also submit a non-CBI version if possible. Information which is properly labeled as CBI and submitted by mail or hand delivery will be disclosed only in accordance with procedures set forth in 40 CFR Part 2. For comments submitted by EPA's e-mail system or through the Regulations.gov Web site, no CBI claim may be asserted. Do not submit CBI to the Regulations.gov Web site or via EPA's e-mail system. Any claim of CBI will be waived for comments received through the Regulations.gov Web site or EPA's e-mail system. For further advice on submitting CBI to the Agency, contact the person listed in the For Further Information Contact section of this notice.

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

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

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

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

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

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

8. To ensure proper receipt by EPA, identify the appropriate ID No. in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

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

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

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

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

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

I. Background

On February 7, 2002 (67 FR 5725), we published a limited approval and limited disapproval of SJVUAPCD Rule 4901 as adopted locally on July 15, 1993 and submitted by the State on December 10, 1993. We based our limited disapproval action on deficiencies in the submittal. This disapproval action started a sanctions clock for imposition of offset sanctions 18 months after March 11, 2002 and highway sanctions 6 months later, pursuant to section 179 of the Clean Air Act (CAA) and our regulations at 40 CFR 52.31.

On July 17, 2003, SJVUAPCD adopted revisions to Rule 4901 that were intended to correct the deficiencies identified in our limited disapproval action. On August 19, 2003, the State submitted these revisions to EPA. In the Proposed Rules section of today's Federal Register , we have proposed approval of this submittal because we believe it corrects the deficiencies identified in our February 7, 2002 disapproval action. Based on today's proposed approval, we are taking this final rulemaking action, effective on publication, to stay and/or defer imposition of sanctions that were triggered by our February 7, 2002 limited disapproval.

EPA is providing the public with an opportunity to comment on this stay/deferral of sanctions. If comments are submitted that change our assessment described in this final determination and the proposed full approval of revised SJVUAPCD Rule 4901, we intend to take subsequent final action to reimpose sanctions pursuant to 40 CFR 51.31(d). If no comments are submitted that change our assessment, then all sanctions and sanction clocks will be permanently terminated on the effective date of a final rule approval.

EPA is making an interim final determination that the State has corrected the disapproval deficiencies that started the sanctions clock. Based on this action, imposition of the offset sanction will be stayed and imposition of the highway sanction will be deferred until EPA's direct final action fully approving the State's submittal becomes effective or until EPA takes action proposing or finally disapproving in whole or part the State submittal. If EPA's direct final action fully approving the State submittal becomes effective, at that time any sanctions clocks will be permanently stopped and any imposed, stayed or deferred sanctions will be permanently lifted.

Because EPA has preliminarily determined that the State has corrected the deficiencies identified in EPA's limited disapproval action on the previous version of this rule, relief from sanctions should be provided as quickly as possible. Therefore, EPA is invoking the good cause exception under the Administrative Procedure Act (APA) in not providing an opportunity for comment before this action takes effect (5 U.S.C. section 553(b)(3)). However, by this action EPA is providing the public with a chance to comment on EPA's determination after the effective date, and EPA will consider any comments received in determining whether to reverse such action.

We believe that notice-and-comment rulemaking before the effective date of this action is impracticable and contrary to the public interest. EPA has reviewed the State's submittal and, through its proposed action, is indicating that it is more likely than not that the State has corrected the deficiencies that started the sanctions clocks. Therefore, it is not in the public interest to initially impose sanctions or to keep applied sanctions in place when the State has most likely done all it can to correct the deficiencies that triggered the sanctions clocks. Moreover, it would be impracticable to go through notice-and-comment rulemaking on a finding that the State has corrected the deficiencies prior to the rulemaking approving the State's submittal. Therefore, EPA believes that it is necessary to use the interim final rulemaking process to stay and/or defer sanctions while EPA completes its rulemaking process on the approvability of the State's submittal. Moreover, with respect to the effective date of this action, EPA is invoking the good cause exception to the 30-day notice requirement of the APA, because the purpose of this notice is to relieve a restriction. See 5 U.S.C. 553(d)(1).

This action stays and/or defers federal sanctions and imposes no additional requirements.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.

This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action.

The administrator certifies that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

This rule does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This action does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).

This rule is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply to this rule because it imposes no standards.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to Congress and the Comptroller General. However, section 808 provides that any rule for which the issuing agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the agency promulgating the rule determines. 5 U.S.C. 808(2). EPA has made such a good cause finding, including the reasons therefor, and established an effective date of September 30, 2003. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rule we are approving with the date that it was adopted by the local air agency and submitted by the California Air Resources Board (CARB).

On September 11, 2003, this submittal was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

We approved SJVUAPCD Rule 4901, originally adopted on July 15, 1993, into the SIP on February 7, 2002 (67 FR 5725).

PM-10 harms human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control PM-10 emissions.

The purpose of revisions to Rule 4901 is to correct the deficiencies cited in the limited approval/limited disapproval of February 7, 2002.

In our 2002 rulemaking, we concluded that the version of Rule 4901 under our review at that time did not fulfill the requirement under section 189(b) of the CAA that applies to serious PM-10 nonattainment areas to implement best available control measures (BACM), including Best Available Control Technology (BACT), with respect to significant sources and source categories, such as residential wood combustion. In our 2002 rulemaking, we referred SJVUAPCD to our reference document, Technical Information Document for Residential Wood Combustion Best Available Control Measures, EPA-450/2-92-002 (September 1992), for our national policy on determining BACM for residential wood combustion and for a list of potential BACM measures that should be implemented unless the district demonstrates that they are not achievable given local conditions.

In our 2002 rulemaking, we also indicated that, since the list of measures in our 1992 reference document was then over nine years old, SJVUAPCD should implement all those measures that are achievable as well as any other measures achievable in San Joaquin that have been developed in other serious PM-10 nonattainment areas. Finally, although we did not intend to identify the only measures necessary to fulfill BACM, we noted three items from the national policy that seemed likely to be achievable: (1) Requirements for mandatory episodic curtailment; (2) requirements for upgrading wood stoves and fireplaces to meet EPA-certified phase II standards upon property sale or transfer; and (3) requirements for limiting the number of wood stoves and fireplaces per acre in new residential development and requirements for EPA-certified phase II standards on those being installed.

Generally, SIP rules must be enforceable ( see section 110(a) of the CAA), must require BACM, including BACT, for significant source categories or major sources in serious PM-10 nonattainment areas ( see section 189(b)), and must not relax existing requirements ( see sections 110(l) and 193). SJVUAPCD is a serious PM-10 nonattainment area and must fulfill the requirements of BACM/BACT.

The following guidance documents were used for reference:

• Requirements for Preparation, Adoption, and Submittal of Implementation Plans, U.S. EPA, 40 CFR part 51.

• PM-10 Guideline Document, EPA-452/R-93-008.

• General Preamble Appendix C3—Available Residential Wood Combustion Control Measures, 57 FR 18072 (April 28, 1992).

• Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 , 59 FR 41998, 42011 (August 16, 1994).

• Technical Information Document for Residential Wood Combustion Best Available Control Measures , EPA-450/2-92-002 (September 1992).

We believe that Rule 4901 is consistent with the relevant policy and guidance regarding enforceability and SIP relaxations, and fulfills the BACM/BACT requirement for this source category. The revised rule now contains the three specific types of requirements that we identified as likely to be achievable in our February 2002 final rule. Specifically, the rule is revised to require mandatory episodic curtailment for wood burning fireplaces and wood burning heaters when the Air Quality Index, as described in 40 CFR 58, exceeds 150. The Air Pollution Control Officer is required to notify the public of the mandatory curtailment. Second, the rule is revised to require that any seller of real property assure that each wood burning heater is EPA Phase II certified or rendered permanently inoperable. Appropriate documentation must be provided by the seller to the buyer and the APCO. Third, the rule is revised to (a) prohibit the installation of a wood burning fireplace in a new residential development with a density greater than two dwelling units per acre, (b) to prohibit the installation of more than one wood burning fireplace or wood burning heater per dwelling unit in any new residential development with a density equal to or less than two dwelling units per acre, and (c) to prohibit the installation of more than two EPA Phase II certified wood burning heaters per acre in new residential development with a density equal to or greater than three dwelling units per acre.

In addition, SJVUAPCD has performed a BACM demonstration for residential wood combustion as part of the San Joaquin Valley Plan to Attain Federal Standards for Particulate Matter 10 Microns and Smaller (2003 PM-10 Plan), which was adopted locally on June 19, 2003, and submitted by CARB to EPA by letter dated August 19, 2003. In appendix G of the 2003 PM-10 Plan, SJVUAPCD evaluated the list of potential BACM measures contained in EPA's 1992 national policy document for residential wood combustion and also considered measures that have been implemented in other parts of the country to determine what provisions in the previous version of Rule 4901 needed to be revised to comply with the BACM requirement. We have determined that this demonstration provides adequate support for our conclusion that the rule, as revised, complies with the BACM requirement for residential wood combustion in San Joaquin Valley and thereby corrects the deficiencies identified in our 2002 final rulemaking on the previous version of Rule 4901.

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted rule because we believe it fulfills all relevant requirements. We do not think anyone will object to this, so we are finalizing the approval without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments by October 30, 2003, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on December 1, 2003. This will incorporate SJVUAPCD Rule 4901 into the federally-enforceable SIP superceding the version of Rule 4901 currently part of the applicable SIP and will terminate all sanction and FIP clocks associated with our previous action on this rule.

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

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

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

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

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

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

• Crop production (NAICS 111)

• Animal production (NAICS 112

• Food manufacturer (NAICS 311)

• Pesticide manufacturer (NAICS 32532)

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

1. Docket . EPA has established an official public docket for this action under docket identification (ID) number OPP-2003-0311. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

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

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

In the Federal Register of March 26, 2003 (68 FR 14628) (FRL-7289-2), EPA issued a notice pursuant to section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the FQPA (Public Law 104-170), announcing the filing of a pesticide petition (PP 1F6278) by BASF Corporation, P.O. Box 13528, Research Triangle Park, NC 27709-3528. This notice included a summary of the petition prepared by BASF Corporation, the registrant. The Agency received comments from North Williamette Research and Extension Center at Oregon State University, Norpac Foods, Inc., Washington State University Tri-Cities, Northern Canola Growers Association, and Earthjustice on behalf of the Northwest Coalition for Alternatives to Pesticides, the Natural Resources Defense Council and Farmworker Justice Fund. The comments from outside parties are summarized in Unit V. followed by the Agency's response.

The petition requested that 40 CFR 180.380 be amended by extending the tolerances for the combined residues of the fungicide vinclozolin, 3-(3,5-dichlorophenyl)-5-ethenyl-5-methyl-2,4-oxazolidinedione and its metabolites containing the 3,5-dichloroaniline moiety, in or on succulent beans at 2.0 ppm for two years. The petition also requested that 40 CFR 180.380 be amended by making the tolerances permanent for canola at 1.0 ppm; eggs, milk, and meat, fat, and meat byproducts of cattle, goats, hogs, horses, and sheep at 0.05 ppm; and in the meat, fat, and meat byproducts of poultry at 0.1 ppm.

Several recent regulatory actions by EPA are pertinent to this petition. In the Federal Register of July 18, 2000 (65 FR 44453) (FRL-6594-8), EPA established time-limited tolerances at the levels identified in Unit II. for use of vinclozolin on succulent beans, canola, eggs, milk, meat and meat-by products of cattle, goats, hogs, horses, sheep, and poultry. These tolerances were made time-limited because of the need for a developmental neurotoxicity study to determine whether vinclozolin which causes antiandrogenic effects shares a common mode of toxicity with other members of the imide group of the dicarboximide class of fungicides which are considered antiandrogenic and with other compounds outside of this class of fungicides that may also be considered antiandrogenic.

The tolerances established July 18, 2000, were approved taking into consideration BASF's May 31, 2000 request to EPA to amend its vinclozolin registration to cancel uses on onions, raspberries, and ornamental plants immediately and to delete uses on kiwi, chicory, lettuce, and succulent beans over the following four years. See the Federal Register notice of September 20, 2000 (65 FR 56894)(FRL-6744-2). As later approved by EPA these use cancellations contained an existing stocks provision which permitted legal use of vinclozolin on succulent beans until September 30, 2005. Id.

Objections to the tolerances established in July, 2000, were filed on behalf of the Natural Resources Defense Council, the Environmental Working Group, the Pineros Campesinos Unidos del Noroeste, and the Northwest Coalition for Alternatives to Pesticides by Earthjustice Legal Defense Fund. These objections were withdrawn after EPA approved BASF's use cancellation request and EPA agreed to notify the objecting parties if any future requests were made for uses of vinclozolin under an emergency exemption from the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq ., and consider the objecting parties comments on any such request.

Also as part of BASF's May 31, 2000 cancellation request, BASF asked EPA to revoke tolerances permitting vinclozolin residues in cucumbers and peppers. See the Federal Register final rule of June 12, 2002 (67 FR 40185)(FRL-6835-6). Earlier, in 1998, BASF had requested that EPA cancel vinclozolin use on strawberries and stonefruit. Id. Consistent with these two actions by BASF, EPA, on June 12, 2002, revoked tolerances for strawberries, stone fruit, cucumbers, and peppers, 67 FR 40185 (June 12, 2002). This present rulemaking further implements September, 2000 cancellation order by extending the vinclozolin succulent bean tolerance through the date as to which use remains legal on succulent beans, September 30, 2005. Extending the succulent bean tolerance in this manner means that vinclozolin which is legally used on succulent beans pursuant to the cancellation order will not render the treated crops adulterated as a matter of law. See 21 U.S.C. 346a(l)(5). In a future action, EPA will be proposing to revoke the tolerances for vinclozolin on onions and raspberries given that those uses are now cancelled.

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

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for tolerances for the combined residues of vinclozolin, 3-(3,5-dichlorophenyl)-5-ethenyl-5-methyl-2,4-oxazolidinedione and its metabolites containing the 3,5-dichloroaniline moiety in or on succulent beans at 2.0 ppm; canola at 1.0 ppm; eggs, milk, and the meat, fat and meat byproducts of cattle, goats, hogs, horses, and sheep at 0.05 ppm; and in the meat, fat, and meat byproducts of poultry at 0.1 ppm.

EPA completed a full risk assessment for vinclozolin as part of the July 18, 2000 tolerance action. July 18, 2000 (65 FR 44453). This risk assessment was updated later that year in connection with the release of the Reregistration Eligibility Document (RED) for vinclozolin. U.S. EPA, Reregistration Eligibility Document Vinclozolin (October 2000) (available at http://www.epa.gov/REDs/2740red.pdf) . In its July 18, 2000 tolerance decision, EPA concluded that the time-limited tolerances met FFDCA section 408's safety standard. (65 FR 44462). Since that time risks from vinclozolin exposure have declined as the strawberry and stone fruit tolerances have been revoked and the last date for legal use on raspberries and onions has passed by almost 2 years. The registration of vinclozolin for use on succulent beans and lettuce will be canceled on July 15, 2004 with the last legal use of existing stocks established as September 30, 2005. At that point, the only remaining uses for vinclozolin will be on belgian endive, canola, and wine grapes. Taking into account the risk assessments done in conjunction with the July 18, 2000 tolerance action and the vinclozolin RED and the reduction in exposure that has occurred as a result of the cancellations of use on strawberries, stone fruit, onions, and raspberries and the tolerance revocations for cucumbers and peppers, EPA concludes that extending the succulent bean tolerance until September 30, 2005, and the canola tolerance until November 30, 2008 meets the section 408 safety standard that is, there is a reasonable certainty of no harm to the general public, including infants and children, from aggregate exposure to vinclozolin.

EPA has retained a time limitation on the canola tolerance because a developmental neurotoxicity study assessing anti-androgenic and neuro-endocrine endpoints has not been conducted. Completion of such a DNT study has been delayed both because EPA needs to investigate anti-androgenic and neuro-endocrine endpoints, endpoints not previously examined in DNT studies, and because the results of the DNT study are critical to assessing whether vinclozolin shares a common mechanism of toxicity with other pesticides which may affect androgens. The Agency currently has no guidance for how this modified DNT study should be conducted, and what specific toxicity endpoints should be evaluated to capture anti-androgenic and neuro-endocrine effects. The Agency is currently examining the vinclozolin data base, as well as data for other chemicals which may effect the androgens. This data analysis extends to both data available in-house and in the literature. When this data analysis is complete, it may be necessary to present this information to the Agency's FIFRA Science Advisory Panel (SAP) to gain insight into whether the chemicals share a common mode of action, whether and how they should be considered in a cumulative risk assessment, and how a DNT study can help the Agency understand this common mechanism question. The data analysis, together with the SAP comments, will be useful in designing the required modified DNT study so that all pertinent toxicological endpoints are measured, and the study is properly conducted. Because the DNT study has not been conducted, EPA has retained the additional 10X FQPA safety factor for the protection of infants and children.

The Agency received five comments summarized below. The Agency's responses are at the conclusion of the comments.

Comment 1 . The North Williamette Research and Extension Center (NWR&EC) of Oregon State University expressed support for extending the tolerance for use of vinclozolin on succulent beans for two years. NWR&EC indicated that the additional time is needed in order to fully evaluate the efficacy of the potential replacement fungicides (fluazinam and BAS 510) in controlling Sclerotinia sclerotiorum under conditions of high disease pressure. Additionally, NWR&EC states that the consequences could be disastrous for a currently financially precarious agricultural industry if adequate time is not allowed for large scale testing of alternative fungicides to ensure efficacy comparable to vinclozolin.

Comment 2 . Norpac Foods Inc. (NFI) expressed support for extending the tolerance for use on succulent bean for two years. NFI indicated that vinclozolin has been very effective in controlling white mold ( Sclerotinia sp. ) on succulent beans and has significantly reduced the economic impact of the disease upon the industry. NFI believes that extension of the existing tolerance would allow the industry time to pursue alternative control measures that are currently undergoing evaluation.

Comment 3 . The Washington State Pest Management Resource Service (WSPMRS) of the Washington State University Tri-Cities expressed support for extending the tolerance for use of vinclozolin on succulent beans, and discussed the economic significance of succulent bean production to the state of Oregon. WSPMRS indicated that while there have been efforts to register alternative fungicides, researchers believe that field data gathered thus far has not been adequate to assure that the proposed replacement fungicides will prove as efficacious as vinclozolin in controlling white and gray mold.

Comment 4 . The Northern Canola Growers Association (NCGA)expressed support for making permanent the tolerances for use of vinclozolin on canola. NCGA discussed the economic importance of canola production to North Dakota, and noted that vinclozolin is a critical tool used by canola growers to combat the devastating effects of Sclerotinia sclerotiorum .

Comment 5 . Earthjustice commented on behalf of the Northwest Coalition for Alternatives to Pesticides, Natural Resources Defense Council, and Farmwork Justice Fund. Earthjustice discussed in detail three concerns. First, Earthjustice expressed concern that vinclozolin is an endocrine-disrupting chemical and a probable human carcinogen. Second, Earthjustice expressed concern that the notice of filing published in the Federal Register on March 26, 2003 did not describe the Agency's duty to cancel vinclozolin's tolerances for succulent beans. Earthjustice asserts that EPA should describe its legal obligations with vinclozolin in the final Federal Register notice responding to the registrant's petition. Third, Earthjustice states that EPA should fill data gaps before taking any regulatory action on vinclozolin. Earthjustice further states that the current data gaps are an extension of decades of data gaps, that EPA appears to be giving up on collecting or analyzing the required data, that EPA has failed to collect data on risks to drinking water, and that EPA admits to numerous other data gaps. Earthjustice concludes their comment by stating that EPA should only finalize the proposed tolerances after collecting required data, making the required findings and fully informing the public about the Agency's regulatory duties for vinclozolin.

Agency response to comments 1-3 . Considerations related to the beneficial impacts of a pesticide are cognizable under the FFDCA only in very narrow circumstances. See 21 U.S.C. 346a(b)(2)(B). Those circumstances have not been argued to be present here.

Agency response to comment 4 . Given the outstanding data, the Agency has decided not to make the vinclozolin tolerances on canola and the associated egg, milk, meat and meat-by-product tolerances permanent but instead has placed a 5 year time limitation on these tolerances. The Agency will reevaluate this issue after the data as identified in the October 2000 Vinclozolin Registration Eligibility Document are received and sufficiently evaluated.

Agency response to comment 5 . The Agency agrees with Earthjustice's discussion of the hazard assessment for vinclozolin in that it is an anti-androgen, and a Group C possible human carcinogen, an effect related to its anti-androgenic properties. These effects, however, were fully considered in the risk assessments conducted for the chemical. The Agency also agrees with Earthjustice that additional data are needed to fully characterize vinclozolin's hazard potential. These data were required as part of the October 2000 Vinclozolin Registration Eligibility Document. In order to account for the data deficiencies, the 10X FQPA safety factor was retained for vinclozolin risk assessments. This 10X factor results in a total safety factor of 1000X.

As noted, the major data deficiency for vinclozolin is the modified developmental neurotoxicity (DNT) study in which antiandrogenic and neuroendocrine endpoints must be assessed. The design and execution of this study presents a host of difficult science issues, including how the study can be conducted in a manner to explore common mechanism questions involving anti-androgenic chemicals. Significant work on this issue has been done. Although EPA in 2000 thought this issue could be resolved relatively quickly, that has not proven correct. Since 2000 EPA has completed a significant amount of work, some of which is currently ongoing. The Agency has completed an updated review of literature data for vinclozolin, and is currently examining in-house data for other chemicals, both those whose major toxic effects are related to androgen hormones, and those which have other major effects, but which still may be appropriate for inclusion in a cumulative risk assessment for androgen-related toxicity. Additional review of literature data for these chemicals is still required. The Office of Pesticide Programs (OPP) has also consulted with researchers in EPA's Office of Research and Development (ORD) who are conducting work for OPP in two areas. First, ORD is conducting experiments to determine whether the androgen-related toxicity of compounds whose effects are caused by different molecular mechanisms are additive, synergistic, or neither. Secondly, ORD is doing both experimental work and mathematical modeling to support a Physiologically Based Pharmacokinetic (PBPK) model for anti-androgenic compounds to support a cumulative risk assessment. Much of the work being done in ORD has been completed, although some remains ongoing. These data are important in assuring that the cumulative risk assessment for these chemicals is scientifically sound.

With regard to the presence of vinclozolin metabolites in drinking water, on February 14, 2001 the Agency issued a data call-in notice to BASF Corporation. The data call-in notice required the submission of a small prospective ground water monitoring study and a surface water monitoring study. These studies are required to be submitted by March 7, 2005 and March 8, 2004, respectively. The studies require that data be collected on vinclozolin and major degradation products. Additionally, on December 20, 2000, the Agency issued a data-call-in notice to BASF for an aerobic soil metabolism study and a soil column leaching/adsorption/desorption study to gain additional data on the persistence, biodegradation, and migration of vinclozolin in soil profile. These studies have been submitted to the Agency and are under review.

Finally, Earthjustice alleges that EPA admitted to many other data gaps in publishing the Notice of Filing (NOF) pertaining to these tolerances. The language cited by NRDC, however, is merely the boilerplate added by EPA to all NOFs to indicate that EPA has not yet finished its review of the petition at the time the NOF is published.

In response to Earthjustice's assertion that the Agency should fully describe the cancellation status of vinclozolin uses, EPA would note that the NOF for this tolerance action was prepared by the petitioner, BASF Corporation, as the statute requires. In this rulemaking document, EPA has fully and accurately described the status of the 2000 cancellation order and the agreement regarding NRDC's withdrawal of its objections to the 2000 tolerance action.

Therefore, the tolerances are established for combined residues of vinclozolin, 3-(3,5-dichlorophenyl)-5-ethenyl-5-methyl-2,4-oxazolidinedione and its metabolites containing the 3,5-dichloroaniline moiety, in or on succulent beans at 2.0 ppm; canola at 1.0 ppm; eggs, milk, and the meat, fat and meat byproducts of cattle, goats, hogs, horses, and sheep at 0.05 ppm; and in the meat, fat, and meat byproducts of poultry at 0.1 ppm. The tolerance for succulent beans will expire on September 30, 2005, and the canola, eggs, milk, meat and meat-by-product tolerances will expire on November 30, 2008.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2003-0311 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before December 1, 2003.

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

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VI.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.1. Mail your copies, identified by docket ID number OPP-2003-0311, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.1. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

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

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

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111)

• Animal production (NAICS code 112)

• Food manufacturing (NAICS code 311)

• Pesticide manufacturing (NAICS code 32532)

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Docket . EPA has established an official public docket for this action under docket identification (ID) number OPP-2003-0319. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

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

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

In the Federal Register of July 9, 2003 (68 FR 40939) (FRL-7314-1), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C. 346a, as amended by FQPA (Public Law 104-170), announcing the filing of pesticide petitions (PP 2E6419, PP 1E6306, PP 1E6270, PP 1E6337, PP 9E5082, PP 0E6199, and PP 1E6292) by IR-4, 681 U. S. Highway #1 South, North Brunswick, NJ 08902-3390. That notice included a summary of the petitions prepared by the registrant, HACO, Inc., P.O. Box 7190, Madison, WI 53707. The Agency received a number of comments on the notice of filing published on July 9, 2003 (68 FR 40939). All comments were in favor of establishing the food tolerances proposed in the notice.

The petitions requested that 40 CFR 180.284 be amended by establishing tolerances for residues of phosphine resulting from the use of the rodenticide zinc phosphide, in or on alfalfa, forage and alfalfa, hay at 0.1 parts per million (ppm); barley, grain and barley, hay at 0.05 ppm, and barley, straw at 0.2 ppm; bean, dry at 0.05 ppm; beet, sugar, roots at 0.05 ppm and beet, sugar, tops at 0.2 ppm; potato at 0.05 ppm; timothy, forage and timothy, hay at 0.05 ppm; and wheat, grain, wheat, hay, and wheat, straw at 0.05 ppm.

EPA is also deleting several established tolerances in § 180.284(b) that are no longer needed, as a result of this action. The tolerance deletions are time-limited tolerances established under section 18 emergency exemptions that are superceded by the establishment of general tolerances for zinc phosphide under § 180.284(a).

The following deletions to § 180.284(b) are replaced in § 180.284(a):

1. Delete the time-limited tolerances for barley, grain at 0.01 ppm, barley, hay at 0.20 ppm, and barley straw at 0.02 ppm. Tolerances for barley, grain at 0.05 ppm, barley, hay at 0.2 ppm, and barley, straw at 0.2 ppm are established by this action under § 180.284(a).

2. Delete the time-limited tolerances for beet, sugar, roots at 0.05 ppm and beet, sugar, tops at 0.1 ppm. Tolerances for sugar, beet, roots are established at 0.05 ppm and sugar, beet, tops at 0.2 ppm under § 180.284(a).

3. Delete the time-limited tolerance for potato at 0.05 ppm. A tolerance for potato is established at 0.05 ppm under § 180.284(a).

4. Delete the time-limited tolerances for timothy, forage and timothy, hay at 0.1 ppm. Tolerances for timothy, forage and timothy, hay are established at 0.5 ppm under § 180.284(a).

5. Delete the time-limited tolerances for wheat, grain, wheat, hay and wheat, straw at 0.01 ppm. Tolerances for wheat, grain, wheat, hay, wheat, straw, and wheat, forage are established at 0.05 ppm under § 180.284(a).

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

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for tolerances for residues of phosphine resulting from the use of the rodenticide zinc phosphide on alfalfa, forage and alfalfa, hay at 0.2 ppm; barley, grain at 0.05; barley, hay at 0.2 ppm; barley, straw at 0.2 ppm; bean, dry, seed at 0.05 ppm; beet, sugar, roots at 0.05 ppm; beet, sugar, tops at 0.2 ppm; potato at 0.05 ppm; timothy, forage and timothy, hay at 0.5 ppm; and wheat, forage, wheat, grain, wheat hay, and wheat, straw at 0.05 ppm. EPA's assessment of exposures and risks associated with establishing the tolerances follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by zinc phosphide are discussed in Table 1 of this unit as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies reviewed.

The dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intraspecies differences.

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factors (SF) is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA SF.

For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.

The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x 10 - 6 or one in a million). Under certain specific circumstances, MOE calculations will be used for the carcinogenic risk assessment. In this non-linear approach, a “point of departure” is identified below which carcinogenic effects are not expected. The point of departure is typically a NOAEL based on an endpoint related to cancer effects though it may be a different value derived from the dose response curve. To estimate risk, a ratio of the point of departure to exposure (MOE cancer = point of departure/exposures) is calculated. A summary of the toxicological endpoints for zinc phosphide used for human risk assessment is shown in Table 2 of this unit:

1. Dietary exposure from food and feed uses . Tolerances have been established (40 CFR 180.284(a)) for residues of phosphine resulting from the use of zinc phosphide, in or on a variety of raw agricultural commodities including: Grape (0.01 ppm), grass (rangeland) (0.1 ppm), and sugarcane (0.01 ppm). Tolerances with regional registration are established 40 CFR 180.284(c) for zinc phosphide residues in or on globe artichokes (0.01 ppm), sugar beet (roots) (0.04 ppm), and sugar beet tops (0.02 ppm). Section 18 tolerances at 40 CFR 180.284(b) currently exist for zinc phosphide residues in or on: Alfalfa forage, alfalfa hay, barley grain, barley hay, barley straw, sugar beets (tops), sugar beet roots, timothy, hay, timothy, forage, potato, wheat grain, wheat hay, and wheat straw.

Based on residue data from field trials conducted in support of the subject tolerances, EPA concludes that acute and chronic dietary exposure associated with the proposed uses of zinc phoshide is unlikely. Residues were below the Level of Quantitation (LOQ) ( < 0.05 or < 0.1 ppm) in crops, except for the livestock feed items alfalfa forage, sugar beet tops, and timothy forage. Alfalfa forage, sugar beet tops, and timothy hay are not direct human food items; rather, they are used as animal feeds. Because residues of zinc phosphide ingested by livestock would be immediately converted to phosphine and metabolized to naturally occurring phosphorus compounds, residues of zinc phosphide in livestock feeds are not expected to result in residues of zinc phosphide in livestock commodities. Also, the act of processing and washing will not allow for unreacted zinc phosphide to remain in or on food items. In addition, residues are not expected in wheat and barley grain since zinc phosphide will be applied to barley and wheat prior to the formation of seed heads.

2. Dietary exposure from drinking water . No drinking water risk assessment was performed for zinc phosphide because no residues are expected in either ground water or surface water.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Zinc phosphide is currently registered in pellet and bait form for use on residential non-food sites to control mammals (primarily rodents) in areas such as commercial establishments, public areas (parks), dumps, and homes. A detailed residential exposure assessment is contained in the Reregistration Eligibility Decision (RED) Document, EPA 738-R-98-006, July 1998, for zinc phosphide.

There were no endpoints identified for zinc phosphide use in a residential assessment except for accidental ingestion. The residential exposure assessment evaluated exposure from accidental ingestion of zinc phosphide. No other residential exposure assessment was either expected or, if expected, found to have any hazard potential.

Although having considered that accidental ingestion of zinc phosphide baits may occur with respect to a very small number of children, EPA has concluded that this potential exposure is not appropriate for inclusion in evaluating the safety of aggregate exposure of consumers and major identifiable subgroups of consumers to zinc phosphide. Unlike other residential uses (such as a turf use) that potentially may result in exposures to significant groups of children, the subgroup of children that may consume baits in childproof bait stations is very tiny. This small subgroup of children would not qualify as a major identifiable subgroup of consumers.

4. Cumulative effects from substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA does not have, at this time, available data to determine whether zinc phosphide has a common mechanism of toxicity with other substances. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to zinc phosphide and any other substances, and zinc phosphide does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that zinc phosphide has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at http://www.epa.gov/pesticides/cumulative/ .

1. In general . Section 408 of the FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans.

3. Conclusion . EPA has waived a significant portion of the data normally required in establishing a tolerance for a pesticide chemical, in evaluating the petitions for zinc phosphide. This data waiver is based on data showing that dietary exposure is unlikely to result from agricultural uses of zinc phosphide. Based on these exposure data, EPA concludes there are reliable data supporting a conclusion that no additional safety factor is necessary to protect the safety of infants and children.

Zinc phosphide has both food and non-occupational uses; therefore, the considerations for aggregate exposure are those from food, drinking water, and residential (non-occupational) sources.

The Agency has concluded that there will be no human dietary exposure from the proposed or registered uses of zinc phosphide. Thus, exposure to zinc phosphide from food is not a component of the acute and chronic aggregate exposure assessment.

1. Acute risk . The Agency has concluded that there will be no human dietary exposure from the proposed or registered uses of zinc phosphide. Thus, exposure to zinc phosphide from food is not a component of the acute and chronic aggregate exposure assessment.

2. Chronic risk . The Agency has concluded that there will be no human dietary exposure from the proposed or registered uses of zinc phosphide. Exposure to zinc phosphide from food and water is not a component of the acute and chronic aggregate exposure assessment

There are no residential uses for zinc phosphide that result in chronic residential exposure to zinc phosphide. Based on the use pattern, chronic residential exposure to residues of zinc phosphide is not expected. There is no potential for chronic dietary exposure to zinc phosphide in food and drinking water.

3. Short-term and intermediate-term risk . Short-term and intermediate-term aggregate exposure takes into account chronic dietary food and water (considered to be a background exposure levels) plus indoor and outdoor residential exposure. No short-term or intermediate-term dermal, oral or inhalation toxicological endpoints were identified for zinc phosphide.

Further, no incidental oral exposure is expected given the conditions of use. Although potentially accidental ingestion of zinc phosphide bait may occur in rare instances, the subgroup of children that are exposed in such a manner is not a major identifiable subgroup of consumers.

4. Aggregate cancer risk for U.S. population . Since chronic exposure and risk associated with the use of zinc phosphide is negligible, no risk of cancer is expected from the use of zinc phosphide.

5. Determination of safety . There is no drinking water, residential, nor dietary component to acute and chronic aggregate exposure to zinc phosphide residues. Based on these exposure assessments, EPA concludes that there is a reasonable certainty that no harm will result to adults, infants and children from aggregate exposure to zinc phosphide residues.

Acceptable methods are available for enforcement and data collection purposes for plant commodities. The Pesticide Analytical Manual (PAM), Vol. II lists, under aluminum phosphide, a colorimetric method and a gas liquid chromatography with flame photometric detection (GLC/FPD) method as Methods A and B, respectively. Both methods determine the level of phosphine liberated when zinc phosphide is exposed to dilute acid solutions. EPA has determined that Method A is acceptable for enforcement. Data submitted in support of the established tolerances were collected by one of these two methods. Data submitted in support of the proposed tolerances were collected by the GLC/FPD method or a similar method

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; e-mail address: residuemethods@epa.gov .

There are no international harmonization issues associated with this action since there are no Codex, Mexican or Canadian maximum residue levels (MRLs) or tolerances for zinc phosphide on any crop.

Therefore, the tolerances are established for residues of phosphine resulting from the use of zinc phosphide in or on alfalfa, forage and alfalfa, hay at 0.2 ppm; barley, grain, at 0.05 ppm, barley, hay and barley, straw at 0.2 ppm; bean, dry, seed at 0.05 ppm; beet, sugar, roots at 0.05 ppm and beet, sugar, tops at 0.2 ppm; potato at 0.05 ppm; timothy, forage and timothy, hay at 0.5 ppm; and wheat, forage, wheat, grain, wheat hay, and wheat, straw at 0.05 ppm.

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2003-0319 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before December 1, 2003.

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

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

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VI.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.1. Mail your copies, identified by docket ID number OPP-2003-0319, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.1. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

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

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

The Site to be deleted from the NPL is the Celtor Chemical Works Superfund Site, in Hoopa, California.

A Notice of Intent to Delete for this Site was published in the Federal Register on August 18, 2003 (68 FR 49406). The closing date for comments on the Notice of Intent to Delete was September 17, 2003. A Responsiveness Summary was prepared for comments received regarding delisting of the site; those responses are part of the NOD below. EPA identifies sites that appear to present a significant risk to public health, welfare, or the environment, and it maintains the NPL as the list of those sites. Section 300.425(e)(3) of the NCP states that Fund-financed actions may be taken at sites deleted from the NPL in the unlikely event that conditions at these sites warrant such actions. Deletion of a site from the NPL does not affect responsible party liability or impede EPA's efforts to recover costs associated with response efforts.

Question: What was the basis for the cleanup levels in the 1985 Record of Decision?

Response: The Maximum Contaminant Levels (MCLs) or the Drinking Water Regulations (DWRs) are the basis for the water quality criteria for the gully, the surface water running into the gully, and the ground water. Action levels for the Trinity River were based upon Water Quality Criteria for the Protection of Freshwater Aquatic Life (WQCAL). Action levels for contaminants in soil were primarily based on the acceptable range of contaminant levels in soil as derived from the EPA National Ambient Water Quality Criteria for Protection of Human Health (WQCHH). An acceptable daily dose was computed by multiplying the WQCHH or MCL for a given contaminant by two liters, which is the maximum daily ingestion rate for the WQCHH or MCL to protect human health. This computed dose was then divided by 10 grams or 0.1 grams, which is the United States Center for Disease Control's (CDC) maximum estimated ingestion rate of soil for a child or an adult, respectively. The result is a range of contaminant concentrations in soil which will fully protect human health. Other considerations were also evaluated in setting the action levels. The action level for arsenic was based upon an advisory from the CDC. In our most recent comprehensive sampling, we compared the results to the Primary Remediation Goals for residential non-cancer standards. The action level for cadmium was based upon a cleanup level for unrestricted residential use. The action levels for copper and zinc were established at the California Assessment Manual Total Threshold Limit Concentrations (CAM TTLC).

Question: After de-listing, would Celtor Chemical be put back on the National Priorities List if contaminants were found?

Response: Deletion of a site from the NPL does not preclude eligibility for subsequent Fund-financed remedial action. If future conditions warrant, the NCP (40 CFR 300.425(e)(3)) provides that Fund-financed remedial actions may be taken at sites deleted from the NPL. When there is a significant release from a site deleted from the NPL, the site may be restored to the NPL without rescoring the site.

Question: Orange-colored soil has been seen on the gravel bar. Is this contamination from the Site?

Response: Orange stained sediments appear on the Trinity River's gravel bar on occasion. It is unknown whether these stained sediments are associated with the Celtor Site. No visible connection to a source has been identified. Stains were sampled by EPA in 1996, but the stains were not present during the 1998, 2001 and 2003 site visits. Some samples of the 1996 orange colored sediments had elevated levels of contaminants. Other samples did not show elevated levels of contaminants. Areas of the gravel bar were sampled to determine if contamination was present in the absence of the orange stains, and no elevated levels of contaminants were found. The Trinity River flows through a highly mineralized area, and there are upstream mining operations that could be the source of the stains. The orange color is also an indication of oxidation (rusting) and is not necessarily associated with contamination. No orange colored sediments have been seen on the gravel bar by EPA or the Tribe since 1996.

Question: Has the contamination affected the river water?

Response: When the processor was operating, there were large quantities of tailings released to the Trinity River that caused fish kills. Current samples of surface water do not show elevated levels of contaminants entering the river.

Question: Is it safe to grow a garden in the pasture?

Response: The pasture was sampled for site related contamination. There were no elevated levels of contaminants found in the soil. There is no unacceptable risk from growing a garden in the pasture with respect to site related contamination.

Question: There is a concern that fill from an area by the gravel bar of the Trinity River near the site was used as fill for yards. Is there a potential health risk for the people who live in these houses?

Response: According to sources from the Tribal Environmental Protection Agency (TEPA), it is not known if this fill was actually used in the yards of homes, or if it was, in what houses it may have been used. There is no reason to suspect that fill used in yards taken from near the gravel bar had elevated levels of site related contaminants. The area where the fill is located was not at the site of the remedial action, but further down the river access road behind the gravel bar.

Availability of Final Rule Technical Amendments

You can view, print, and download an electronic copy of this document in PDF or HTML formats through FMCSA's Web site: http://www.fmcsa.dot.gov/rulesregs, or the Federal Register's Web site at http://www.gpoaccess.gov.

FMCSA has made the following technical corrections to the Federal Motor Carrier Safety Regulations (FMCSRs) contained in Title 49 of the Code of Federal Regulations (CFR), chapter III, subchapter B.

Section 365.405(a): “Federal Motor Carrier Safety Administration, Licensing Division” is corrected to read “FMCSA, Licensing Team;” “Regional Director for the Region(s)” is corrected to read “Field Administrator for the Service Center(s);” and “1002.2(f)(25)” is corrected to read “360.3(f)(8).” Section 365.411(b), “Division” is corrected to read “Team.” Section 365.413(b), “Office of Data Analysis and Information Systems” is corrected to read “Licensing Team.” Section 365.505(b)(3), “unbvtil” is corrected to read “until.”

Section 374.303(a), “carriers” is corrected to read “carrier.”

Section 387.303, paragraph (b)(2) table, column 1, paragraph (d), “10,000” is corrected to read “10,001” to be consistent with other sections in the table. In § 387.309, “B.M.C.” is corrected to read “BMC.” In § 387.311(b), “B.M.C. 83” and “B.M.C. 34” are corrected to read “BMC 83” and “BMC 34.”

In § 391.43(f), the date on which existing physical examination forms may no longer be used “November 6, 2001” has been updated. In the “Instructions For Performing and Recording Physical Examinations” and the “Medical Examination Report for Commercial Driver Fitness Determination,” both codified after § 391.43(f), the information on blood pressure has been revised to incorporate the recommendations on hypertension included in a report prepared for FMCSA, entitled Cardiovascular Advisory Panel Guidelines for the Medical Examination of Commercial Motor Vehicle Drivers (October 2002). The report, which has been posted on the FMCSA website for several months, represents the current medical consensus and state of the art in evaluating and treating hypertension.

In § 393.5, definition of “ g, ” the figure “9.823” is corrected to read “9.81.” In § 393.106(a), the reference to “§ 393.122 through § 393.142” is corrected to read §§ 393.116 through 393.136.”

Section 396.9, paragraphs (b) and (c)(2), the report form “Driver Equipment and Compliance Check” has been renamed the “Driver Vehicle Examination Report” to conform with industry terminology and for uniformity in reporting.

The APA provides exceptions to its notice and public comment procedures when an agency finds there is good cause for dispensing with such procedures on the basis that they are “impracticable, unnecessary, or contrary to the public interest.” See 5 U.S.C. 553(b). FMCSA has determined that notice and comment on these amendments are unnecessary.

The amendments to Part 365 involve four changes to the names of FMCSA offices; one change to replace an obsolete CFR citation which was recodified after the Interstate Commerce Commission's remaining functions were transferred to DOT; and one spelling correction. Because these changes make ministerial corrections or update references, but do not impose added burdens or alter any rights or obligations, the agency has determined that notice and comment are unnecessary.

The definition of “Carrier” in § 374.303(a) now reads: “a motor passenger common carriers.” The plural “carriers” is changed to the singular “carrier” to match the term being defined. This has no effect on the underlying rule, and FMCSA has determined that notice and comment are therefore unnecessary.

In part 387, three references to “B.M.C.,” meaning Bureau of Motor Carriers, are changed to “BMC,” the current preferred abbreviation of that term. The underlying rule is unchanged, and the agency has determined that notice and comment are unnecessary.

In § 391.43(f), the date after which existing physical examination forms could no longer be used (November 6, 2001) has been extended to September 2004. This is being done because it came to the agency's attention that stocks of the previous forms still exist. Allowing their continued use will save the expense of discarding these forms and buying new ones. The medical examination itself is the same, whatever the form used to record the results. FMCSA has therefore determined that notice and comment are not required.

In the “Instructions For Performing and Recording Physical Examinations” and the “Medical Examination Report for Commercial Driver Fitness Determination,” both codified after § 391.43(f), the information on blood pressure has been revised to incorporate the recommendations on hypertension included in a report prepared for FMCSA, entitled Cardiovascular Advisory Panel Guidelines for the Medical Examination of Commercial Motor Vehicle Drivers (October 2002). The report, which has been posted on the FMCSA website for several months, represents the current medical consensus and state of the art in evaluating and treating hypertension. FMCSA has determined that notice and comment on these changes are unnecessary, because both the “Instructions” for dealing with high blood pressure and the corresponding “Guidelines” printed on the exam form are simply recommendations to the medical examiner. They represent the agency's summary of current medical thinking, but are neither part of the medical standard for blood pressure [ see § 391.41(b)(6)] nor binding on the medical examiner.

In Part 393.5, the definition of “g,” the symbol for the acceleration of gravity, is corrected from 9.823 meters per second squared to 9.81 meters per second squared. FMCSA finds that notice and comment are unnecessary to correct this error. The reference in § 393.106(a) to “the commodity-specific rules of § 393.122 through § 393.142” is erroneous because it refers to section numbers used in a previous draft of Subpart I (Protection Against Shifting and Falling Cargo). The final rule codified the commodity-specific regulations at § 393.116 through § 393.136, and § 393.106(a) is therefore changed accordingly. Because this amendment clarifies a cross-reference but does not change any regulatory requirement, FMCSA finds that notice and comment are unnecessary.

In § 396.9(b) and (c)(2), the inspection report entitled “Driver Equipment Compliance Check” has been renamed the “Driver Vehicle Examination Report.” Because the substance of the inspection report has not been changed, FMCSA has determined that notice and comment are unnecessary.

These technical amendments have no significant impact on a substantial number of small entities. The amendments merely correct inadvertent errors and omissions, update mailing addresses, remove obsolete references, and make minor editorial changes to improve clarity and consistency. They do not impose new requirements. As explained above, FMCSA has determined that prior notice and opportunity for comment on these changes are unnecessary. For the same reasons, the agency finds good cause under 5 U.S.C. 553(d)(3) to make these amendments effective upon publication.

FMCSA does not consider this rule to be a “significant regulatory action” under Executive Order 12866, Regulatory Planning and Review, or within the meaning of DOT regulatory policies and procedures. Therefore, it does not require review by the Office of Management and Budget.

FMCSA has reviewed the technical amendments rule, and certifies that this rule will not have a significant economic impact on a substantial number of small entities.

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

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, we have determined that this rule does not have federalism implications.

This rule will not affect 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 section 3 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 concern an environmental risk to health or risk to safety that may disproportionately affect children.

Catalog of Federal Domestic Assistance Program Number 20.217, Motor Carrier Safety. The regulations implementing Executive order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this action.

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

We have analyzed this action for purposes of the National Environmental Policy Act (NEPA) and have determined that this action does not have any effect on the quality of the environment.

We have determined that this rule is not a major regulatory action under the provisions of the Energy Policy and Conservation Act (EPCA).

This final rule is not a major rule as defined by section 804 of SBREFA. This rule will not result in annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, or innovation. This rule is also exempt from congressional review under 5 U.S.C. 801 et seq. , as added by SBREFA, since it involves ministerial technical corrections to existing regulations.

In the Motor Carrier Safety Improvement Act of 1999 (Pub. L. 106-159), which established FMCSA as a separate agency within the U.S. Department of Transportation (DOT), Congress authorized FMCSA to regulate the interstate transportation of household goods. In earlier legislation, Congress abolished the Interstate Commerce Commission and transferred the Commission's jurisdiction over household goods transportation to DOT (ICC Termination Act of 1995, Pub. L. 104-88). Prior to FMCSA's establishment, the Secretary of Transportation delegated this household goods jurisdiction to the Federal Highway Administration (FHWA).

In May 1998, FHWA published a notice of proposed rulemaking requesting comments on its proposal to amend the household goods regulations at 49 CFR part 375 and the credit regulations at part 377 (63 FR 27126, May 15, 1998). The public submitted more than 50 comments on the proposal. FMCSA modified the substance of the proposed rule in light of concerns raised by some of the commenters, including the American Moving and Storage Association, and published an interim final rule on June 11, 2003 (68 FR 35064), to become effective September 9, 2003, with mandatory compliance to begin March 1, 2004. We published an interim final rule rather than a final rule to allow the Office of Management and Budget additional time to complete its review of information collection requirements.

On August 25, 2003, FMCSA received two petitions for reconsideration of the interim final rule. The petitioners are (1) the American Moving and Storage Association and (2) United Van Lines, LLC and Mayflower Transit, LLC. On the same date, the American Moving and Storage Association submitted a separate Petition for Stay of Effective Date. The reconsideration petitions address a variety of issues, both substantive and technical. Certain of the substantive concerns will require the agency's careful analysis. The rule took effect on September 9, 2003, but compliance was not required until March 1, 2004. As the rule's effective date has passed, we are delaying the compliance date until further notice in order to consider fully the petitioners' concerns. FMCSA will publish a document in the Federal Register promulgating any necessary technical corrections and/or substantive changes, and announcing the new compliance date for the rule.

FMCSA recognizes that interstate household goods carriers will require sufficient time to prepare for compliance with this rule. Prior to the compliance date, carriers will need to conduct an educational process, make document changes, and revise operational procedures. In addition, the compliance date must precede the summer peak moving season, which begins May 15, 2004. FMCSA will ensure that the new compliance date provides the household goods transportation industry with this vital lead time.

Docket: For access to the docket to read background documents or comments received, go to http://dms.dot.gov at any time or to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.

Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc. ). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov.

The term “current rules,” as used in this document, refers to the HOS regulations in effect before April 28, 2003, and “final rule” means the HOS regulations adopted on April 28, 2003 (68 FR 22456).

Confusion has arisen among motor carriers and enforcement officials over the provision of the final rule on hours of service (68 FR 22456, April 28, 2003) relating to the use of sleeper berths to accumulate 10 hours of off-duty time.

More specifically, the issue is how to apply the general prohibition on driving “[f]or any period after the end of the 14th hour after coming on duty following 10 consecutive hours off duty * * *” [49 CFR 395.3(a)(2)] in the context of the sleeper berth rule, which allows drivers to accumulate 10 hours off duty in two periods in the berth.

Under the current rule, off-duty time (including sleeper berth time) is not counted in calculating the 15-hour limit, thus allowing drivers to take for example, 2 hours off-duty during their work shift to drive up to the 17th hour after coming on duty. The new rule reduces the 15-hour limit to 14 hours, but it also adds a general prohibition on driving “[f]or any period after the end of the 14th hour after coming on duty following 10 consecutive hours off duty * * *” [49 CFR 395.3(a)(2)].

Under the new rule, off-duty time is included in calculating the 14th hour since coming on duty. The only exception is sleeper berth time. When taken in 2 periods, each of which must be at least 2 hours long, sleeper berth time does not count toward the 14-hour limit. The final rule, however, attempted to incorporate a modified 14-hour limit by providing that “The on-duty time in the period immediately before and after each rest period, when added together, does not include any driving time after the 14th hour” [§ 395.1(g)(1)(iii)].

Although counting on-duty time toward the 14-hour limit is obviously consistent with the general principle of § 395.3(a)(2), the modified sleeper-berth provision inadvertently omitted reference to off-duty time not spent in a sleeper berth and sleeper berth time of less than 2 hours, neither of which qualifies for exclusion from the 14-hour limit. The agency is therefore amending § 395.1(g)(1)(iii) to clarify that drivers and motor carriers are required to count on-duty time, off-duty time not spent in a sleeper berth and sleeper berth time of less than two hours toward the 14-hour limit.

The final rule also overlooked the need to spell out the underlying principle for dealing with situations in which a driver takes more than 2 sleeper berth periods, all of which are more than 2 hours long. For example, after having been off-duty for 10 hours a driver drives for 4 hours, takes 2 hours in the sleeper berth, drives for another 3 hours, takes 3 more hours in the sleeper berth, drives for 5 hours, and then goes into the sleeper berth for 7 hours. In this case, the second and third sleeper-berth periods (3 hours plus 7 hours, respectively) meet the requirements of the rule (10 hours off duty in two periods, each at least 2 hours long), while the first and second (2 hours plus 3 hours, respectively) do not. Although the previous sentence suggests how this hypothetical should be treated, the amendment to § 395.1(g)(1)(iii) makes it explicit: any 2 sleeper-berth periods totaling 10 hours may be used in calculating the 10-hour limit, and sleeper-berth periods not used in calculating the 10-hour limit will be included in calculating the 14-hour limit.

Section 395.1(g)(2) restates the principle of § 395.1(g) of the current rule. Since 1963, that rule has allowed drivers who are off duty at a natural gas or oil well location to accumulate the then-required 8 hours off duty in two off-duty periods, each at least 2 hours long, in “other sleeping accommodations at a natural gas or oil well location” [49 CFR 195.3(a), 28 FR 2236, March 7, 1963]. State and Federal officials have understood and enforced that provision for 40 years. The agency is amending the introductory phrase of § 395.1(g)(2) to clarify that although drivers must now take 10 rather than 8 hours off duty, drivers at wellheads may continue to accumulate their off-duty time in two periods. The periods may be taken in sleeper berths, other sleeping accommodations, or both. This technical amendment imposes no added burdens, and simply clarifies the intent of the final rule.

Finally, while §§ 395.1(g)(1)(iv), 395.1(g)(2)(iv), and 395.1(g)(3)(iv) of the new rule provide that a combination of consecutive sleeper berth time and off-duty time totaling 10 hours satisfies the 10 hour-off-duty requirement when a driver changes from a sleeper berth mode of operation to a non-sleeper-berth mode, it inadvertently failed to provide the same option to drivers continuing in the sleeper berth mode. This amendment corrects that oversight.

In summary, the sleeper berth provision is clarified as follows:

For purposes of determining the 14-hour limit in a sleeper berth operation, the following are included in calculating that limit: on-duty time; non-sleeper-berth off-duty time; sleeper berth time of less than 2 hours; and sleeper berth time of 2 hours or more that is not used to accumulate 10 hours of off-duty time.

A combination of consecutive sleeper berth time and off-duty time totaling 8 for passenger-carrying operations or 10 hours for property-carrying and natural gas/oil well operations may be used to comply with either the 8-or the 10-hour off-duty requirement in sleeper berth operations, in addition to situations in which a driver moves from a sleeper berth to a non-sleeper berth operation.

Any two sleeper-berth periods (each at least two hours long) totaling 10 hours may be used in calculating the 10-hour limit, and sleeper-berth periods not used in calculating the 10-hour limit will be included in calculating the 14-hour limit.

Section 395.1(g) currently permits drivers with sleeper berths who are off duty at a natural gas or oil well location to accumulate the required 8 hours of off-duty time “in a sleeper berth in two separate periods totaling 8 hours, neither period to be less than 2 hours, or resting while off duty in other sleeping accommodations at a natural gas or oil well location.” These “other sleeping accommodations” are routinely provided at oil and gas well sites.

In the final rule adopted on April 28, 2003 [68 FR 22456 at 22515], the agency intended to continue to permit these drivers to accumulate the required off-duty time—extended from 8 hours to 10 hours—in 2 periods in either a sleeper berth or other sleeping accommodations. In fact, the new § 395.1(g)(2) specifically permits this conduct. The new rule, however, also included an additional provision [§ 395.1(g)(2)(iv)], relating to the off-duty requirements a driver must meet when going from sleeper berth to non-sleeper berth operations. This additional provision inadvertently omitted the specific reference to “other sleeping accommodations” for these drivers. FMCSA is therefore restoring this phrase to § 395.1(g)(2)(iv).

Also, § 395.1(g)(2)(iv) is being amended to match § 395.1(g)(1)(iv), again for the same reason. Because a combination of consecutive sleeper berth time, time in other sleeping accommodations, and off-duty time totaling 10 hours satisfies the 10 hour-off-duty requirement when a driver changes from a sleeper berth mode of operation to a non-sleeper berth mode, that same option should have been provided to a driver continuing in the sleeper berth mode. This amendment corrects the oversight.

Finally, like the general sleeper berth rule, the special provision for drivers of oil-well-servicing vehicles inadvertently omitted any reference to off-duty time not spent in a sleeper berth and sleeper berth time of less than 2 hours. The agency is therefore adopting the same language for § 395.1(g)(2)(iii) as for § 395.1(g)(1)(iii), and for the same reason.

Section 395.1(o) of the April 28 final rule [68 FR 22456 at 22516] was intended to give short-haul drivers one 16-hour on-duty limit in a 7-day period. In describing this provision, the Executive Summary (page 1) to the Regulatory Impact Analysis prepared for the rule (item # 23302 in the docket) states “This option allows short haul and local drivers (drivers who sleep at home all evenings and who have limited range of operations) the flexibility to work up to 16 hours up to one day per work week.” Page 9-9 of the Regulatory Impact Analysis also describes § 395.1(o) as “allowing one 16-hour shift per week.”

As published in the final rule, however, § 395.1(o)(3) provides that the driver may not have taken this exemption “within the previous 7 consecutive days.” The previous 7 days and the current day (when the exemption could again be used) constitute an 8-day cycle, not the 7-day cycle intended by the agency. FMCSA is correcting the erroneous reference to “the previous 7 consecutive days” to “the previous 6 consecutive days.” The exemption will therefore be available once a week, as originally intended.

We have determined these amendments do not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866 or within the meaning of DOT regulatory policies and procedures. This document was not reviewed by the Office of Management and Budget.

The Administrative Procedure Act (APA) allows agencies to dispense with prior notice and an opportunity for comment if it finds them impracticable, unnecessary, or contrary to the public interest [5 U.S.C. 553(b)(B)]. FMCSA finds good cause to publish these technical amendments without prior notice. These amendments do not increase the regulatory burden on the motor carrier industry, nor do they alter the substantive rights or obligations of any party. They merely clarify the intent of the final rule.

As indicated by the preamble to the final rule, “[t]his rule requires that taking off-duty time, including meal stops and other rest breaks, of less than 10 hours duration, other than sleeper berth time, will not extend the work day.” [68 FR 22504, April 28, 2003]. FMCSA inadvertently failed to articulate clearly in § 395.1(g)(1)(iii) the full implications of combining the sleeper-berth provisions with the 14-hour limit, and is therefore amending the provision to clarify that off-duty time and sleeper-berth time of less than two hours are counted toward the 14-hour limit. Because these requirements were spelled out in other portions of the final rule, FMCSA finds prior notice and opportunity for comment on this clarifying amendment unnecessary.

In finalizing the general sleeper berth provisions, FMCSA also failed to articulate with adequate specificity how the rule would work if a driver took not just 2 sleeper berth periods (each at least 2 hours long), but 3 or even more such periods. The agency is therefore amending § 395.1(g)(1)(iii) to make completely clear that any two sleeper berth periods totaling 10 hours will be counted, while any other sleeper berth periods (even those more than 2 hours long) will simply be treated as off-duty time for purposes of the 14-hour limit. The change merely states in detail a result already required by the final rule. Therefore, notice and comment are unnecessary.

The so-called “oil well exception,” which has been in effect for 40 years, allows drivers of trucks specially constructed to service oil and gas wells to cumulate the required 8 hours (now 10 hours) of off-duty time in two periods in “other sleeping accommodations” at oil and gas wells. That exception is embodied in § 395.1(g)(2) of the final rule. However, in the course of combining the “oil well exception” with the more detailed requirements of the sleeper-berth provisions for the final rule, the clarity of the exception was obscured. FMCSA has therefore clarified the wording of § 395.1(g)(2) to recapture the original and unchanged meaning of this provision and to ensure that both enforcement personnel and the regulated community understand the purpose and effect of this provision. Because the changes do not alter the meaning of the rule and impose no additional obligations on anyone, FMCSA has determined that these technical amendments do not require notice and comment.

For decades, FMCSA and State enforcement personnel treated the current sleeper berth rule as allowing a driver to satisfy the requirement for 8 hours off duty by taking either two sleeper berth periods totaling 8 hours, or a combination of consecutive sleeper berth time and other off-duty time totaling 8 hours. The agency intended to ratify this practice in the new rule, but failed to include the necessary text in all of the relevant places. Sections 395.1(g)(1)(iv), 395.1(g)(2)(iv), and 395.1(g)(3)(iv) were correctly drafted, and FMCSA is therefore inserting that language in the introductory phrase of §§ 395.1(g)(1), 395.1(g)(2), and 395.1(g)(3) as well. Because this represents a corrected restatement of a principle already incorporated into the final rule, and long enforced by FMCSA and State officials, the agency has determined that notice and comment are unnecessary.

The current sleeper-berth rule allows drivers “who are off duty at a natural gas or oil well location” to rest “in a sleeper berth in two separate periods totaling 8 hours, neither period to be less than 2 hours, or resting while off duty in other sleeping accommodations at a natural gas or oil well location.” [§ 395.1(g) (emphasis added)]. The final rule was intended to retain the “other sleeping accommodations” option; as contained in § 395.1(g)(2). The agency is correcting an inadvertent omission by adding a reference to “other sleeping accommodations” to § 395.1(g)(2)(iv). Because this change merely applies a principle allowed for decades by the previous rule and explicitly endorsed by the new rule, to drivers leaving—in addition to those engaged in—sleeper berth operations, the agency has determined that notice and comment are unnecessary.

FMCSA decided short-haul operations should be granted a weekly exception to the prohibition on driving after the 14th hour after coming on duty. Page 9-9 of the Regulatory Impact Analysis clearly states that the analysis concerned “the flexibility to work up to 16 hours up to one day per work week.” The final rule, however, erroneously provided that the 16-hour exemption could not be taken “within the previous 7 consecutive days” [§ 395.1(o)(3)], which created an 8-day cycle. FMCSA has therefore determined that notice and comment are unnecessary to correct the drafting error and amend § 395.1(o) to allow the exception if not taken “within the previous 6 consecutive days.”

The RFA generally requires a description and analysis of final rules that will have a significant economic impact on a substantial number of small entities. Since this rule is not subject to the notice and public comment requirements of 5 U.S.C. 553, it is not subject to the provisions of the RFA.

The Unfunded Mandates Reform Act of 1995 requires Federal agencies to assess the regulatory actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100 million or more in any one year. There are no costs associated with this rule.

This rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (Federalism). This rule does not impose any new requirement that: (1) has substantial direct effects on the States, the relationship between the Federal government and the States, or the distribution of power among the various levels of government; (2) imposes substantial direct compliance costs on State and local governments; or (3) preempts State law. This rule does not have any federalism implications.

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 section 3 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 concern an environmental risk to health or risk to safety that may disproportionately affect children.

Catalog of Federal Domestic Assistance Program Number 20.217, Motor Carrier Safety. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this action.

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

We have analyzed this action for purposes of the National Environmental Policy Act and have determined that this action does not have any effect on the quality of the environment.

This final rule is also exempt from congressional review under 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, since it only makes minor technical corrections to existing regulations.

Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories, and General category effort controls (including time-period subquotas and restricted fishing days (RFDs)) are specified annually under 50 CFR 635.23(a) and 635.27(a). The 2003 BFT Quota Specifications and General category effort controls were proposed on July 10, 2003 (68 FR 41103).

Under § 635.23 (a)(4), NMFS may increase or decrease the General category daily retention limit of large medium and giant BFT over a range from zero (on RFDs) to a maximum of three per vessel to allow for maximum utilization of the quota for BFT. Based on a review of dealer reports, daily landing trends, available quota, and the availability of BFT on the fishing grounds, NMFS has determined that an increase of the daily retention limit for the month of October is appropriate and necessary to maximize use of the proposed coastwide General Category quota. Based on this seasons landings rates in June through September, it is highly unlikely that the proposed September subquota will be filled in the remaining fishing days. At current catch rates and a daily retention limit of two BFT per vessel, it is also unlikely that the proposed October through December subquota, will be attained in the October through December time-period. An adjustment to the General category daily retention limit will allow full use of the General category quota proposed for the 2003 fishing year, while preventing overharvest and ensuring reasonable fishing opportunities in all areas. Therefore, NMFS adjusts the General category daily retention limit to three large medium or giant BFT per vessel, effective September 27 through October 31, 2003.

The intent of this adjustment is to allow for maximum utilization by General category participants of the remaining General category quota (specified under 50 CFR 635.27(a)), (which has been adjusted by the quota carryover from the June through August and September time-period subquotas), to help achieve optimum yield in the General category fishery, to collect a broad range of data for stock monitoring purposes, and to be consistent with the objectives of the HMS FMP.

Closures or subsequent adjustments to the daily retention limit, if any, will be published in the Federal Register . In addition, owners/operators may call the Atlantic Tunas Information Line at (888) 872-8862 or (978) 281-9305 for updates on quota monitoring and retention limit adjustments.

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

The 2003 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA is 13,905 metric tons (mt) as established by the final 2003 harvest specifications for groundfish of the GOA (68 FR 9924, March 3, 2003)

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2003 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component of the Western Regulatory Area of the GOA will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 13,500 mt, and is setting aside the remaining 405 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to exceeding the TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA, and therefore reduce the public's ability to use and enjoy the fishery resource.

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

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

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

The 2003 halibut bycatch allowance specified for the trawl Pacific cod fishery category in the BSAI is 1,434 metric tons as established by the final 2003 harvest specifications for Groundfish of the BSAI (68 FR 9907, March 3, 2003).

In accordance with § 679.21(e)(7)(v), the Administrator, Alaska Region, NMFS, has determined that the amount of the final 2003 halibut bycatch allowance specified for the trawl Pacific cod fishery category in the BSAI will be caught. Consequently, NMFS is closing directed fishing Pacific cod by vessels using trawl gear in the BSAI.

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

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

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

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

The halibut bycatch allowance specified for the trawl yellowfin sole fishery category in the BSAI is 886 metric tons as established by the final 2003 harvest specifications for Groundfish of the BSAI (68 FR 9907, March 3, 2003).

In accordance with § 679.21(e)(7)(v), the Administrator, Alaska Region, NMFS, has determined that the amount of the halibut bycatch allowance specified for the trawl yellowfin sole fishery category in the BSAI will be caught. Consequently, NMFS is closing directed fishing for species in the yellowfin sole fishery category by vessels using trawl gear in the BSAI.

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

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

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

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

The 2003 TAC of Atka mackerel in the Central Aleutian District of the BSAI was established by the final 2003 harvest specifications for groundfish in the BSAI (68 FR 9907, March 3, 2003) as 27,158 metric tons (mt). Regulations that are the basis for specifying this TAC are found at § 679.20(c)(3)(iii) and (c)(6).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2003 Atka mackerel TAC in the Central Aleutian District will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 27,108 mt, and is setting aside the remaining 50 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will be reached. Consequently, NMFS is prohibiting directed fishing for Atka mackerel in the Central Aleutian District of the BSAI.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to exceeding the Atka mackerel TAC in the Central Aleutian District, and therefore reduce the public's ability to use and enjoy the fishery resource.

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

This action is required by § 679.20 and is exempt from review under Executive Order 12866.