The regulations in 7 CFR part 319 prohibit or restrict the importation of certain plants and plant products into the United States to prevent the introduction of plant pests. The regulations contained in “Subpart—Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other Plant Products,” §§ 319.37 through 319.37-14 (referred to below as the regulations), restrict, among other things, the importation of living plants, plant parts, and seeds for propagation.

In § 319.37-14 of the regulations, paragraph (b) contains a list of approved ports of entry through which restricted articles may be imported into the United States. Restricted articles that do not require a permit may be imported through any of the approved ports of entry; restricted articles that do require a permit, because of their greater plant pest and disease risk, may be imported only through ports equipped with special inspection and treatment facilities. These ports, known as plant inspection stations, are indicated on the list by an asterisk.

Currently, 14 plant inspection stations operate at or near many major U.S. ports and airports. These facilities are designed for inspection and, in some cases, treatment of imported plants and seeds. Plant Protection and Quarantine (PPQ) staffs plant inspection stations with officers who specialize in, among other things, entomology, plant pathology, and botany.

At plant inspection stations, PPQ officers inspect imported plants and seeds to ensure that they are free from plant pests and diseases that are known not to occur in the United States and that they otherwise comply with U.S. import regulations. When pests or diseases are detected, PPQ may require that the planting material be treated, exported, or destroyed.

In order to be designated as a plant inspection station, a building must have adequate space for inspection areas to be set up, laboratory facilities for pest and disease identification, provide easy access by shipments for inspection, and, in most cases, contain various treatment facilities. We have determined that the facilities in Atlanta, GA, and Agana, GU, satisfy the criteria for designation as plant inspection stations.

Therefore, in accordance with the procedures explained below under “Dates,” this rule amends the list of ports of entry in § 319.37-14(b) by replacing the current entries for Atlanta, GA, and Agana, GU, on the list and designating those ports as plant inspection stations.

We are publishing this rule without a prior proposal because we view this action as noncontroversial and anticipate no adverse public comment. This rule will be effective, as published in this document, on February 17, 2004, unless we receive written adverse comments or written notice of intent to submit adverse comments on or before January 20, 2004.

Adverse comments are comments that suggest the rule should not be adopted or that suggest the rule should be changed.

If we receive written adverse comments or written notice of intent to submit adverse comments, we will publish a document in the Federal Register withdrawing this rule before the effective date. We will then publish a proposed rule for public comment.

As discussed above, if we receive no written adverse comments or written notice of intent to submit adverse comments within 30 days of publication of this direct final rule, this direct final rule will become effective 60 days following its publication. We will publish a document in the Federal Register , before the effective date of this direct final rule, confirming that it is effective on the date indicated in this document.

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.

This proposed rule would add Atlanta, GA, and Agana, GU, as ports of entry through which individuals and companies would be able to import nursery stock. This action would save business costs to concerned individuals and companies, making the routing of nursery stock materials to other authorized entry ports unnecessary.

We are amending the regulations governing the importation of nursery stock and other articles by designating the ports of Atlanta, Georgia, and Agana, Guam, as plant inspection stations. The addition of the two plant inspection stations will help reduce transportation time and costs to importers who must currently import plants through inspection stations that are considerably distant from the importers' facilities.

The United States imported about 700 million plant units in 2002, about 4.6 percent over the previous year and 21 percent above 2000 level. 1 Nursery stock imports were valued at $591 million in 2002, an increase of about 135 percent over a decade ago. The major sources are Canada (50.4 percent), Netherlands (25.5 percent), Costa Rica (3.9 percent), Mexico (2.7 percent), and Taiwan (2.2 percent). Nursery stock exports were valued at $250 million in 2002, about 13 percent over 1992 total. 2

Planting seeds are imported from many countries, with a few countries accounting for the major proportion of U.S. total planting seed imports. The leading suppliers are Chile ($105.8 million), Canada ($105 million), the Netherlands ($36.5 million), Argentina ($21.2 million), China ($17.9 million), Japan ($14 million), Finland ($11.1 million), Australia ($8.3 million), Denmark ($7.5 million), and India ($7.1 million) in 2001. 3 These 10 countries accounted for $334.4 million, or about 84 percent, of total U.S. planting seed imports.

The availability of good quality nursery stock and seeds contributes to domestic production of food grains, field crops, cotton, oil crops, vegetables, herbs, flowers, trees, and shrubs. Presently, imported nursery stock and seeds can enter the United States with a phytosanitary certificate through 14 approved plant inspection stations. Atlanta, GA, and Agana, GU, though not listed as approved Federal plant inspection stations, currently serve as ports of entry for other restricted articles that do not require a permit. The new facilities in Georgia and Guam have the capacity and resources to handle the importation of nursery stock and seeds, which will allow them to be listed as plant inspection stations.

This action may result in reduced costs for importers by making the routing of nursery stock materials through another plant inspection station unnecessary when the materials are destined for the regions of Atlanta, GA, or Agana, GU. Importers and distributers both in Atlanta, GA, and Agana, GU, should benefit from transportation cost savings and reduced plant injury that can result during transport.

The Agana International Airport serves Guam and surrounding islands, which are growing tourist centers. Currently, most of the nursery stock imported into Guam is routed through Hawaii. Very little is imported from Asian sources because of the time and cost involved in shipping to Federal plant inspection stations in Hawaii and then to Guam. Additionally, plant mortality is high due to the additional time involved routing through Honolulu, HI, which is a major factor apart from the shipping cost. The direct air cargo cost from Narita, Japan, to Honolulu, HI, is $11.96 per kilogram and from Hawaii to Guam is $6.65 per kilogram for a total routing cost from Narita to Guam of $18.61 per kilogram. The direct air cargo cost from Narita to Guam is $7.04 per kilogram. Thus, as Agana becomes an approved Federal plant inspection station, importers will benefit from direct importation of nursery stock materials from Japan, Taiwan, China, the Philippines, and other Asian countries through reduced transportation costs. Presently there are 20 establishments engaged in nursery stock trade in Guam. The number of establishments that import nursery stock may increase because of the reduced transportation costs, reduced time, and lower probability of damaged plants.

The Hartsfield Atlanta International Airport is becoming a major air cargo hub. It is an entry port for other restricted articles that do not require a permit and is much closer to most nursery stock importers from the surrounding areas and States (northern Alabama, North Carolina, South Carolina, southern Virginia, Kentucky, and Tennessee) than any of the other closest Federal plant inspection stations in Miami, FL, New Orleans, LA, and Orlando, FL. There are about 470 retail nursery companies in Georgia alone, of which 141 are in metropolitan areas. Nursery retailers from the surrounding areas that import products would benefit from reduced routing costs and reduced mortality of plants that usually occurs from multiple box openings for inspection and from the longer time elapsed between the place of origin and the final destination.

The Regulatory Flexibility Act requires that agencies consider the economic impact of their rules on small entities. The Small Business Administration (SBA) has established the size standards for determining which economic entities meet the definition of a small firm. A retail nursery or lawn and garden store (NAICS code 444220)  4 is defined as a small business if it employs 100 or fewer workers. Resort hotels, golf courses, and local governments that use nursery stock for parks and landscaping could be affected. Additionally, specialized groups such as horticultural societies, arboreta, and individual plant hobbyists who import and exchange nursery stock and small lots of seed could also be affected.

Nationally, there are 6,845 establishments that are engaged in selling trees, shrubs, other plants, seeds, bulbs, mulch, and related products (NAICS 444220). About 470 of these are in Georgia, including the Atlanta metropolitan area. There are 20 companies currently engaged in nursery stock trade in Guam. Over 99 percent are small entities. However, specialized groups such as horticultural societies, arboreta, several resort hotels, golf courses, and local governments that use imported plants for landscaping projects, and individual hobbyists who collect, grow, exhibit, preserve, exchange, and donate special nursery stocks and seeds could also be affected. The exact present size and number of these entities are difficult to determine.

Since Atlanta, GA, and Agana, GU, already serve as ports of entry for other restricted articles and have the capacity and resources to handle the importation of nursery stock and seeds, no effect on Federal Government processing of permits and inspection of imported materials is expected. Also, no effects on other Federal agencies and State and local governments are expected. Since imports of these materials are a small fraction of the total domestic supply of nursery stock and seeds, no substantial change in supply and price is expected.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. ( See 7 CFR part 3015, subpart V.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended (NWPA), requires that “[t]he Secretary [of the Department of Energy (DOE)] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 218(a) for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule in 10 CFR part 72 entitled, “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR part 72, entitled “Approval of Spent Fuel Storage Casks” containing procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on December 22, 1994 (59 FR 65920), that approved the Standardized NUHOMS ® System (NUHOMS ® -24P and -52B) cask designs and added them to the list of NRC-approved cask designs in § 72.214 as CoC No. 1004. Amendments 3, 5, and 6, respectively, added the -61BT, -32PT, and -24PHB designs to the Standardized NUHOMS ® System.

On March 29, 2002, and as supplemented on February 14, 2003, and July 10, 2003, the certificate holder, Transnuclear, Inc. (TN), submitted an application to the NRC to amend CoC No. 1004 to incorporate changes in support of the Amergen Corporation plans to load damaged fuel and additional fuel types at its Oyster Creek Nuclear Station. Specifically, the amendment will add damaged Boiling Water Reactor (BWR) spent fuel assemblies and additional fuel types to the authorized contents of the NUHOMS ® -61BT Dry Shielded Canister under a general license. In addition, three minor changes to the TS were requested to correct inconsistencies and remove irrelevant references. No other changes to the Standardized NUHOMS ® System were requested in this application. The NRC staff performed a detailed safety evaluation of the proposed CoC amendment request and found that an acceptable safety margin is maintained. In addition, the NRC staff has determined that there is still reasonable assurance that public health and safety and the environment will be adequately protected.

This direct final rule revises the Standardized NUHOMS ® System listing in § 72.214 by adding Amendment 7 to CoC No. 1004. The amended TS are identified in the NRC staff's SER for Amendment 7.

The amended Standardized NUHOMS ® System, when used in accordance with the conditions specified in the CoC, the TS, and NRC regulations, will meet the requirements of part 72; thus, adequate protection of public health and safety will continue to be ensured.

Certificate No. 1004 is revised by adding the effective date of Amendment Number 7.

This rule is limited to the changes contained in Amendment 7 to CoC No. 1004 and does not include other aspects of the Standardized NUHOMS ® System. The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured. The amendment to the rule will become effective on March 2, 2004. However, if the NRC receives significant adverse comments by January 20, 2004, then the NRC will publish a document that withdraws this action and will address the comments received in response to the proposed amendments published elsewhere in this issue of the Federal Register . A significant adverse comment is a comment which explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

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

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

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

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

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

(3) The comment causes the NRC staff to make a change (other than editorial) to the CoC or TS.

These comments will be addressed in a subsequent final rule. The NRC will not initiate a second comment period on this action. However, if the NRC receives significant adverse comments by January 20, 2004, then the NRC will publish a document that withdraws this action and will address the comments received in response to the proposed amendments published elsewhere in this issue of the Federal Register .

The National Technology Transfer Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC would revise the Standardized NUHOMS ® System listed in § 72.214 (List of NRC-approved spent fuel storage cask designs). This action does not constitute the establishment of a standard that establishes generally applicable requirements.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended (AEA), or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws, but does not confer regulatory authority on the State.

The Presidential Memorandum dated June 1, 1998, entitled “Plain Language in Government Writing,” directed that the Government's writing be in plain language. The NRC requests comments on this direct final rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the heading ADDRESSES above.

Under the National Environmental Policy Act of 1969, as amended, and the NRC regulations in Subpart A of 10 CFR part 51, the NRC has determined that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The rule would amend the CoC for the Standardized NUHOMS ® System within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license by revising the NUHOMS ® -61BT to incorporate changes in support of the Amergen Corporation plans to load damaged fuel and additional fuel types at its Oyster Creek Nuclear Station. Specifically, the amendment will add damaged BWR spent fuel assemblies and additional fuel types to the authorized contents of the NUHOMS ® -61BT Dry Shielded Canister. In addition, the amendment includes three minor changes to the TS to correct inconsistencies and remove irrelevant references. The environmental assessment (EA) and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Single copies of the EA and finding of no significant impact are available from Jayne M. McCausland, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6219, email jmm2@nrc.gov .

This direct final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget, Approval Number 3150-0132.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in § 72.214. On December 22, 1994 (59 FR 65920), the NRC issued an amendment to part 72 that approved the Standardized NUHOMS ® System (NUHOMS ® -24P and -52B) by adding it to the list of NRC-approved cask designs in § 72.214. Amendments 3, 5, and 6, respectively, added the -61BT, -32PT,and -24PHB cask designs to the Standardized NUHOMS ® System. On March 29, 2002, and as supplemented on February 14, 2003, and July 10, 2003, the certificate holder, Transnuclear, Inc. (TN), submitted an application to the NRC to amend CoC No. 1004 to incorporate changes in support of the Amergen Corporation plans to load damaged fuel and additional fuel types at its Oyster Creek Nuclear Station. Specifically, the amendment will add damaged BWR spent fuel assemblies and additional fuel types to the authorized contents of the NUHOMS ® -61BT Dry Shielded Canister under a general license. In addition, the amendment includes three minor changes to the TS to correct inconsistencies and remove irrelevant references.

The alternative to this action is to withhold approval of this amended cask system design and issue an exemption to the general license for each utility that decides to use the amended cask system design. This alternative would cost both the NRC and the utilities more time and money because each utility would have to pursue an exemption.

Approval of the direct final rule will eliminate this problem and is consistent with previous NRC actions. Further, the direct final rule will have no adverse effect on public health and safety. This direct final rule has no significant identifiable impact or benefit on other Government agencies. Based on this discussion of the benefits and impacts of the alternatives, the NRC concludes that the requirements of the direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and thus, this action is recommended.

In accordance with the Regulatory Flexibility Act of 1980 [5 U.S.C. 605(b)], the NRC certifies that this rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only the licensing and operation of nuclear power plants, independent spent fuel storage facilities, and Transnuclear, Inc. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR part 121.

The NRC has determined that the backfit rule (10 CFR 50.109 or 10 CFR 72.62) does not apply to this direct final rule because this amendment does not involve any provisions that would impose backfits as defined. Therefore, a backfit analysis is not required.

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

The “confidentiality provision” of the Federal Election Campaign Act, 2 U.S.C. 431 et seq. , (FECA), provides that: “Any notification or investigation under [Section 437g] shall not be made public by the Commission * * * without the written consent of the person receiving such notification or the person with respect to whom such investigation is made.” 2 U.S.C. 437g(a)(12)(A). For approximately the first twenty-five years of its existence, the Commission viewed the confidentiality requirement as ending with the termination of a case. The Commission placed on its public record the documents that had been considered by the Commissioners in their determination of a case, minus those materials exempt from disclosure under the FECA or under the Freedom of Information Act, 5 U.S.C. 552, (FOIA). See 11 CFR 5.4(a)(4). In AFL-CIO v. FEC , 177 F.Supp.2d 48 (D.D.C. 2001), the district court disagreed with the Commission's interpretation of the confidentiality provision and found that the protection of section 437g(a)(12)(A) does not lapse at the time the Commission terminates an investigation. 177 F.Supp.2d at 56.

Following that district court decision, the Commission placed on the public record only those documents that reflected the agency's “final determination” with respect to enforcement matters. Such disclosure is required under section 437g(a)(4)(B)(ii) of the FECA and section (a)(2)(A) of the FOIA. In all cases, the final determination is evidenced by a certification of Commission vote. The Commission also continued to disclose documents that explained the basis for the final determination. Depending upon the nature of the case, those documents consisted of General Counsel's Reports (frequently in redacted form); Probable Cause to Believe Briefs; conciliation agreements; Statements of Reasons issued by one or more of the Commissioners; or, a combination of the foregoing. The district court indicated that the Commission was free to release these categories of documents. See 177 F.Supp.2d at 54 n.11. In administrative fines cases, the Commission began placing on the public record only the Final Determination Recommendation and certification of vote on final determination. In alternative dispute resolution cases, the public record consisted of the certification of vote and the negotiated agreement.

Although it affirmed the judgment of the district court in AFL-CIO , the Court of Appeals for the District of Columbia Circuit differed with the lower court's restrictive interpretation of the confidentiality provision of 2 U.S.C. 437g(a)(12)(A). The Court of Appeals stated that: “the Commission may well be correct that * * * Congress merely intended to prevent disclosure of the fact that an investigation is pending,” and that: “deterring future violations and promoting Commission accountability may well justify releasing more information than the minimum disclosures required by section 437g(a).” See AFL-CIO v. FEC , 333 F.3d 168 (D.C. Cir. 2003) at 174, 179. However, the Court of Appeals warned that, in releasing enforcement information to the public, the Commission must “attempt to avoid unnecessarily infringing on First Amendment interests where it regularly subpoenas materials of a ‘delicate nature * * * represent[ing] the very heart of the organism which the first amendment was intended to nurture and protect.’ ” Id . at 179. (Citation omitted). The decision suggested that, with respect to materials of this nature, a “balancing” of competing interests is required—on one hand, consideration of the Commission's interest in promoting its own accountability and in deterring future violations and, on the other, consideration of the respondent's interest in the privacy of association and belief guaranteed by the First Amendment. Noting that the Commission had failed to tailor its disclosure policy to avoid unnecessarily burdening the First Amendment rights of the political organizations it investigates, id . at 178, the Court found the agency's disclosure regulation at 11 CFR 5.4(a)(4) to be impermissible. Id . at 179.

The Commission is issuing this interim policy statement to identify several categories of documents integral to its decisionmaking process that will be disclosed upon termination of an enforcement matter. The categories of documents that the Commission intends to disclose either do not implicate the Court's concerns, e.g. , categories 8, 9 and 10, or, because they play a critical role in the resolution of a matter, the balance tilts decidedly in favor of public disclosure, even if the documents reveal some confidential information.

With respect to enforcement matters, the Commission will place the following categories of documents on the public record:

1. Complaint or internal agency referral;

2. Response to complaint;

3. General Counsel's Reports that recommend dismissal, reason to believe, no reason to believe, no action at this time, probable cause to believe, no probable cause to believe, no further action, or acceptance of a conciliation agreement;

4. Notification of reason to believe findings (including Factual and Legal Analysis);

5. Respondent's response to reason to believe findings;

6. Briefs (General Counsel's Brief and Respondent's Brief);

7. Statements of Reasons;

8. Conciliation Agreements;

9. Evidence of payment of civil penalty or of disgorgement; and

10. Certifications of Commission votes.

In addition, the Commission will make certain other documents available which will assist the public in understanding the record without intruding upon the associational interests of the respondents. These are:

1. Designations of counsel;

2. Requests for extensions of time;

3. Responses to requests for extensions of time; and

4. Closeout letters.

The Commission is placing the foregoing categories of documents on the public record in all matters it closes on or after January 1, 2004.

The Commission is not placing on the public record certain other materials from its investigative files, such as subpoenaed records, deposition transcripts, and other records produced in discovery, even if those evidentiary documents are referenced in, or attached to, documents specifically subject to release under this interim practice. Release of these underlying evidentiary documents may require a closer balancing of the competing interests cited by the D.C. Circuit. Accordingly, the Commission will consider the appropriateness of disclosing these materials only after a full rulemaking with the opportunity for public comment. However, if a document or record is referenced in, or attached to, a document specifically subject to release under this interim practice, that document or record will be disclosed if it is, or was, otherwise publicly available.

The Commission will place documents on the public record in all cases that are closed, regardless of the outcome. By doing so, the Commission complies with the requirements of 2 U.S.C. 437g(a)(4)(B)(ii) and 5 U.S.C. 552(a)(2)(A). Conciliation Agreements are placed on the public record pursuant to 2 U.S.C. 437g(a)(4)(B)(ii).

The Commission will place these documents on the public record as soon as practicable, and will endeavor to do so within thirty days of the date on which notifications are sent to complainant and respondent. See 11 CFR 111.20(a). In the event a Statement of Reasons is required, but has not been issued before the date proposed for the release the remainder of the documents in a matter, those documents will be placed on the public record and the Statement of Reasons will be added to the file when issued.

With respect to administrative fines cases, the Commission will place the entire administrative file on the public record, which includes the following:

1. Reason to Believe recommendation;

2. Respondent's response;

3. Reviewing Officer's memoranda to the Commission;

4. Final Determination recommendation;

5. Certifications of Commission votes;

6. Statements of Reasons;

7. Evidence of payment of fine; and

8. Referral to Department of the Treasury.

With respect to alternative dispute resolution (ADR) cases, the Commission will place the following categories of documents on the public record:

1. Complaint or internal agency referral;

2. Response to complaint;

3. ADR Office's case analysis report to the Commission;

4. Notification to respondent that case has been assigned to ADR;

5. Letter or Commitment Form from respondent participating in the ADR program;

6. ADR Office recommendation as to settlement;

7. Certifications of Commission votes;

8. Negotiated settlement agreement; and

9. Evidence of compliance with terms of settlement.

When disclosing documents in administrative fines and alternative dispute resolution cases, the Commission will release publicly available records that are referenced in, or attached to, documents specifically subject to release under this interim practice.

With this interim policy, the Commission intends to provide guidance to outside counsel, the news media, and others seeking to understand the Commission's disposition of enforcement, administrative fines, and alternative dispute resolution cases and, thus, to enhance their ability to assess particular matters in light of past decisions. In all matters, the Commission will continue to redact information that is exempt from disclosure under the FECA and the FOIA.

As discussed above, the Commission hereby is announcing an interim policy. A rulemaking, with full opportunity for public comment, will be initiated in 2004.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 94-04-09, amendment 39-8829 (59 FR 8393, February 22, 1994), which is applicable to certain Bombardier Model DHC-8-100 and DHC-8-300 airplanes, was published in the Federal Register on October 9, 2003 (68 FR 58283). The action proposed to require new repetitive inspections of the strut assemblies for cracking of struts replaced per the existing AD, and replacement of any cracked strut with a new, machined strut. The action also proposed to change the applicability of the existing AD by adding certain airplanes and removing certain other airplanes, and proposed to include an optional terminating action for the repetitive inspections.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 192 airplanes of U.S. registry that will be affected by this AD.

The actions that are currently required by AD 94-04-09 take approximately 16 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Required parts are provided by the manufacturer at no cost to the operators. Based on these figures, the cost impact of the currently required actions is estimated to be $1,040 per airplane.

The new detailed inspection that is required in this AD action takes approximately 1 work hour per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the required inspection on U.S. operators is estimated to be $12,480, or $65 per airplane, per inspection cycle.

The cost impact figures discussed above are 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 optional terminating action, if done, will take approximately 16 work hours per strut to accomplish, at an average labor rate of $65 per work hour. Required parts will cost aproxiamately $800 per strut. Based on these figures, the cost impact of the optional terminating action is estimated to be $1,840 per strut, per airplane.

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 .

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 Airbus Model A300 B4-622R and A300 F4-622R airplanes, and Model A310-324 and -325 series airplanes, that are equipped with Pratt & Whitney PW4000 series engines, was published in the Federal Register on September 19, 2003 (68 FR 54872). That action proposed to require replacement of the existing flexible hose assembly that connects the oil pressure transmitter to the main oil circuit, with a new improved tube assembly.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the single comment received. The commenter has no objection to the proposed AD.

After careful review of the available data, including the comment noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 139 airplanes of U.S. registry will be affected by this AD, that it will take approximately 10 work hours per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Required parts will be provided by the manufacturer at no charge. Based on these figures, the cost impact of this AD on U.S. operators is estimated to be $90,350, or $650 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 .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2001-08-26, amendment 39-12203 (66 FR 20912, April 26, 2001), which is applicable to certain Airbus Model A319 and A320 series airplanes, was published in the Federal Register on September 18, 2003 (68 FR 54691). The action proposed to require revising the airplane flight manual to specify procedures for landing under certain conditions of gusty winds and turbulence. The action also proposed to require replacement of both Elevator and Aileron Computers (ELACs) having L80 standards with new ELACs having L81 standards, which would terminate the requirements of the existing AD.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 350 airplanes of U.S. registry that will be affected by this AD.

The AFM revision currently required by AD 2001-08-26 takes approximately 1 work hour per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $22,750, or $65 per airplane.

The new replacement required in this AD action takes approximately 1 work hour per airplane to accomplish, at an average labor rate of $65 per work hour. Required parts will be provided by the manufacturer at no cost to operators. Based on these figures, the cost impact of the replacement on U.S. operators is estimated to be $22,750, or $65 per airplane.

The cost impact figures discussed above are 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.

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 Boeing Model 777-200 and 777-300 series airplanes was published in the Federal Register on November 18, 2002 (67 FR 69493). That action proposed to require application of high-temperature sealant to the strut aft dry bay.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

Several commenters stated that, in some of the airplanes on the effectivity list of Boeing Alert Service Bulletin 777-54A0016, dated January 25, 2001, (referenced in the proposed rule as the appropriate service bulletin), high-temperature sealant had been applied to the strut aft dry bay at the factory during production with no signs of damage or leakage. According to these commenters, The Boeing Company confirmed that not all the airplanes on the effectivity list were delivered with sealant missing from the designated areas of the strut aft dry bay. The commenters request, therefore, that the AD (1) add an inspection of those areas to determine whether sealant had been applied during production, and (2) require application of sealant only if had not been applied.

The FAA concurs with the commenters' request. We requested and subsequently approved a revision to the Boeing service bulletin. Service Bulletin 777-54A0016, Revision 1, dated July 10, 2003, adds an inspection for high-temperature sealant in the designated areas of the strut aft bay. If it is found that sealant has been properly applied at each of the designated areas during production, no further action is required. If it is found that sealant is missing or damaged at any of the designated areas, it must be applied. Paragraphs (b)(1) and (b)(2) have been added to this AD to specify the appropriate action.

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 previously described. In adding paragraphs (b)(1) and (b)(2) to this AD, we considered whether they would increase the economic burden on any operator or increase the scope of the AD. Our conclusion is that, if paragraph (b)(1) applies, it will be relieving; if paragraph (b)(2) applies, it will be neutral in its effect. Therefore, there is no need to provide additional opportunity for public comment.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. However, for clarity and consistency in this final rule, we have retained the language of the NPRM regarding that material.

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.

There are approximately 298 Model 777-200 and 777-300 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 95 airplanes of U.S. registry will be affected by this AD, that it will take approximately 4 work hours per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Required parts will cost approximately $20 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $26,600, or $280 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.

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 Bombardier Model DHC-8-400, -401, and -402 airplanes was published in the Federal Register on October 9, 2003 (68 FR 58287). That action proposed to require a one-time inspection of the forward engine mount assemblies on the left and right engine nacelles for installation of pre-production engine mount assemblies, and follow-on corrective actions if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

We estimate that 11 airplanes of U.S. registry will be affected by this AD, that it will take approximately 2 work hours per airplane to accomplish the required 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 $1,430, or $130 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 .

In the Federal Register of October 22, 2002 (67 FR 64835), FDA issued a proposed rule to classify human dura mater into class II based on new information regarding this device and the recommendation of the Neurological Devices Panel. FDA identified the draft guidance document entitled “Class II Special Controls Guidance Document: Human Dura Mater; Guidance for Industry and FDA” as the proposed special control capable of providing reasonable assurance of the safety and effectiveness of the device. The device is intended to repair defects in human dura mater. FDA invited interested persons to comment on the proposed rule by January 21, 2003. FDA received one comment.

The comment did not express an opinion on the proposed rule. It informed FDA of new research in transgenic mice which suggests that it may be difficult to distinguish whether a patient's cause of death is related to Creutzfeldt-Jakob Disease (CJD) or variant CJD based on neuropathology. FDA appreciates receipt of the information but does not believe it affects the classification of human dura mater. The guidance document “Class II Special Controls Guidance Document: Human Dura Mater” recommends clinical and histopathological methods, including next of kin interviews and full brain autopsy, respectively, that are intended to identify and defer potential human dura mater donors who have either CJD or variant CJD.

Based on a review of the available information in the preamble to the proposed rule and placed on file in FDA's Division of Dockets Management (HFA-305), Food and Drug Administration, 5600 Fishers Lane, rm. 1061, Rockville, MD 20852, FDA concludes that special controls, in conjunction with general controls, provide reasonable assurance of the safety and effectiveness of this device. Elsewhere in this issue of the Federal Register , FDA is announcing the availability of the class II special controls guidance document. Following the effective date of this final classification rule, any firm submitting a premarket notification (510(k)) for human dura mater will need to address the issues covered in the class II special control guidance. However, the firm need only show that its device meets the recommendations of the guidance or in some other way provides equivalent assurances of safety and effectiveness.

FDA is now codifying the classification and the class II special control guidance document for human dura mater by adding § 882.5975 to the device regulations in Title 21, Code of Federal Regulations (21 CFR). For the convenience of the reader, FDA is also adding § 882.1(e) to inform the reader where to find guidance documents referenced in 21 CFR part 882.

As discussed in the preamble to the proposed rule (67 FR 64835), FDA intends to transfer the regulation of human dura mater from the Center for Devices and Radiological Health to the Center for Biologics Evaluation and Research. FDA expects this transfer will take place upon the implementation of human-cellular and tissue-based product regulations, including regulations addressing donor suitability, good tissue practices, and registration and listing. FDA has initiated rulemaking proceedings involving these products. (See 64 FR 52696, September 30, 1999; 66 FR 1507, January 8, 2001; and 66 FR 5447, January 19, 2001.) In the interim, FDA believes that regulation of dura mater as a class II device subject to general and special controls provides a reasonable assurance of its safety and effectiveness.

The agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this rule is consistent with the regulatory philosophy and principles identified in the Executive order. In addition, the final rule is not a significant regulatory action as defined by the Executive order and so is not subject to review under the Executive order.

FDA has also examined the impact of the rule under the Regulatory Flexibility Act. The purpose of this rule is to change the classification of human dura mater from an unclassified medical device into a class II medical device subject to special controls. As an unclassified device, this device is already subject to premarket notification and the general labeling provisions of the act. There are currently five to seven manufacturers of human dura mater medical devices. All of the firms meet the Small Business Administration's definition of a small entity (fewer than 500 employees). FDA, however, believes that manufacturers presently marketing this device already conform with many of the recommendations in the special controls guidance document. New manufacturers of human dura mater will only need to submit 510(k)s, as the statute now requires them to do, and demonstrate that they meet the recommendations of the guidance or in some way provide equivalent assurances of safety and effectiveness. In addition, biocompatibility and structural testing recommendations are eliminated from the guidance, which will decrease the premarket notification costs for manufacturers introducing new human dura mater devices into commercial distribution. The agency, therefore, certifies that this rule will not have a significant economic impact on a substantial number of small entities. In addition, this rule will not impose costs of $100 million or more on either the private sector or State, local, and tribal governments in the aggregate, and therefore, a summary statement or analysis under section 202(a) of the Unfunded Mandates Reform Act of 1995 is not required.

FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.

This final rule does not contain information collection provisions that are subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office. EPA has established an official public rulemaking file for this action under CT-057-7216e. The official public file 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 rulemaking file does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding federal holidays.

2. Copies of the State submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the State Air Agency. Bureau of Air Management, Department of Environmental Protection, State Office Building, 79 Elm Street, Hartford, CT 06106-1630.

3. Electronic Access. You may access this Federal Register document electronically through the Regulation.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on Federal rules that have been published in the Federal Register , the government's legal newspaper, and are open for comment.

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

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking CT-057-7216d” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

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

i. E-mail. Comments may be sent by electronic mail (e-mail) to conroy.david@epa.gov please including the text “Public comment on proposed rulemaking CT-057-7216d” in the subject line. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

ii. Regulation.gov. Your use of Regulation.gov is an alternative method of submitting electronic comments to EPA. Go directly to Regulations.gov at http://www.regulations.gov, then click on the button “TO SEARCH FOR REGULATIONS CLICK HERE,” and select Environmental Protection Agency as Agency name to search on. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in section 2, directly below. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: David Conroy, Unit Manager, Air Quality Planning, Office of Ecosystem Protection (mail code CAQ), U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA 02114-2023. Please include the text “Public comment on proposed rulemaking CT-057-7216d” in the subject line on the first page of your comment.

3. By Hand Delivery or Courier. Deliver your comments to: David Conroy, Unit Manager, Air Quality Planning, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding federal Holidays.

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

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

On June 17, 2003, the Connecticut Department of Environmental Protection (CTDEP) submitted an amendment to the Connecticut State Implementation Plan (SIP) containing 2005 and 2007 motor vehicle emissions budgets recalculated using the MOBILE6.2 model for the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area and 2007 motor vehicle emissions budgets for the Greater Connecticut nonattainment area. This SIP revision fulfills the commitment made by the CTDEP in its February 8, 2000 SIP submittal to revise the transportation conformity budgets using EPA's MOBILE6 emissions model. 1 In addition, this SIP revision demonstrates that the new levels of motor vehicle emissions calculated using MOBILE6.2 continue to support achievement of the rate of progress requirements and projected attainment of the one-hour ozone NAAQS for the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area and the Greater Connecticut nonattainment area. Connecticut held a public hearing on its proposed SIP revision on May 27, 2003. Today's action approves these budgets.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

The entire State of Connecticut is designated as nonattainment for the one-hour ozone NAAQS. Southwest Connecticut ( i.e. , all of Fairfield County except the town of Shelton, plus the Litchfield County towns of Bridgewater and New Milford) is part of the New York-Northern New Jersey-Long Island severe ozone nonattainment area, and the remainder of Connecticut is the Greater Connecticut serious ozone nonattainment area. The CTDEP submitted attainment demonstrations for both the Southwest Connecticut and Greater Connecticut ozone nonattainment areas on September 16, 1998, and EPA published proposed rulemakings on CTDEP's attainment demonstrations on December 16, 1999. 64 FR at 70332-70364 (December 16, 1999).

EPA's December 16, 1999 proposal to approve the attainment demonstration for the Greater Connecticut area was contingent upon several issues. The issues relevant to this action were the submittal of an adequate motor vehicle emissions budget that was consistent with attainment and a commitment to revise the motor vehicle emissions budget within one year after official release of EPA's MOBILE6 emissions model. The CTDEP submitted the required motor vehicle emissions budgets (calculated using EPA's MOBILE5b emissions model) for Greater Connecticut on February 8, 2000. The motor vehicle budgets submitted for Greater Connecticut on February 8, 2000 were calculated using then-current EPA guidance. This guidance is articulated in two memoranda which detail how states should incorporate the benefits of the federal motor vehicle Tier 2 standard into their SIPs, “Guidance on Motor Vehicle Emissions Budgets in one-hour Ozone Attainment Demonstrations,” issued November 3, 1999, and “One-hour Ozone Attainment Demonstrations and Tier2/Sulfur Rulemaking,” issued November 8, 1999. In addition, states that have attainment demonstrations that include interim MOBILE5b-based estimates of the federal motor vehicle Tier 2 standards are required to submit motor vehicle emissions budgets using the EPA's April 2000 MOBILE5 guidance, “MOBILE5 Information Sheet #8: Tier 2 Benefits Using MOBILE5.” 2 EPA granted full approval to the Greater Connecticut attainment demonstration on January 3, 2001 (66 FR 633).

For the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area, EPA's December 16, 1999 rulemaking proposed to conditionally approve the ozone attainment SIP for the nonattainment area, and in the alternative, to disapprove the SIP if the specified conditions were not satisfied. The only condition of importance to today's action is the submittal of adequate MOBILE5b 2007 motor vehicle emissions budgets that are consistent with attainment, and a commitment to revise the 2007 motor vehicle emissions budgets within one year after official release of EPA's MOBILE6 emissions model. In the February 8, 2000 submittal, the CTDEP submitted revised 2007 motor vehicle emissions budgets (determined with MOBILE5b), which EPA found adequate on June 16, 2000 (65 FR 37778-37779). Connecticut also committed to revise its motor vehicle emissions budgets within one year after release of MOBILE6. 3 In addition, the CTDEP incorporated the federal motor vehicle Tier 2 standards program into the SIP and provided the necessary SIP commitments as part of revisions submitted to EPA in February 2000 and October 2001, 4 respectively. As a result of this submittal and the resolution of other issues on the attainment demonstration, EPA granted full approval of Connecticut's one-hour ozone attainment demonstrations on December 11, 2001 for the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area (66 FR 63921).

The SIP being approved today satisfies CTDEP's commitments to revise motor vehicle emissions budgets within one year after EPA's release of the MOBILE6 motor vehicle emissions model. EPA published the release of the MOBILE6 model in the Federal Register on January 29, 2002 (67 FR 4254), beginning the one-year time line for submitting revised budgets. Thus, the effective date of that Federal Register notice constituted the start of the one-year time period for which Connecticut was required to revise its one-hour ozone attainment demonstration SIP using the MOBILE6 model. Therefore, Connecticut was required to submit this SIP revision to EPA by January 29, 2003. EPA subsequently released updated versions of the model, and the latest model update, MOBILE6.2, was used to prepare this SIP revision.

Although not required by EPA, CTDEP is electing to replace the existing 2005 MOBILE5b budgets for Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area with MOBILE6.2 budgets. There are no applicable budget requirements for 2005 for Greater Connecticut, but the State previously had 2005 budgets approved by EPA for the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area (66 FR 63921). Connecticut is only required to submit new 2007 budgets using the MOBILE6.2 model for the attainment year of 2007. Therefore, EPA's adequacy determination will only be for the revised attainment year budgets for 2007 for both the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area and the Greater Connecticut nonattainment area and not for the revised reasonable further progress (2005) budgets for the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area. This is consistent with EPA's approval of the previous MOBILE5 budgets which limited the adequacy process to only the revised attainment year budgets, or 2007 for both nonattainment areas in Connecticut. EPA has notified the public of Connecticut's SIP revision containing 2007 motor vehicle emissions budgets recalculated using the MOBILE6.2 model for the Connecticut portion of the New York-Northern New Jersey-Long Island ozone nonattainment area and for the Greater Connecticut ozone nonattainment area on EPA's Office of Transportation and Air Quality Web site “SIP Submissions Currently Under EPA Adequacy Review” located at http://www.epa.gov/otaq/transp/conform/currsips.htm. The thirty-day public comment period associated with the adequacy review process started Friday, December 5, 2003.

MOBILE6.2 is an EPA emissions factor model for estimating pollution from on-road motor vehicles in states outside of California. MOBILE6.2 calculates emissions of volatile organic compounds (VOCs), nitrogen oxides (NO X ) and carbon monoxide (CO) from passenger cars, motorcycles, buses, and light-duty and heavy-duty trucks. The model accounts for the emission impacts of factors such as changes in vehicle emission standards, changes in vehicle populations and activity, variations in temperature, humidity, fuel type, vehicle type and age distribution, and air quality programs such as inspection and maintenance, and many other variables. Although some minor updates were made in 1996 with the release of MOBILE5b, MOBILE6.2 is the first major revision to MOBILE since MOBILE5a was released in 1993.

In developing mobile source emission estimates, states rely on estimates of daily vehicle miles traveled (VMT) using travel demand forecasting models which use variables such as population, housing, land use, and other relevant planning data. Resulting VMT, speed data, vehicle age distribution, speed data, road types, vehicle type data, and other data are then entered into the MOBILE6.2 model to develop on-road vehicle emission factors. More information on Connecticut's travel demand modeling is contained in the state's June 17, 2003 SIP submittal.

Transportation conformity is required under section 176(c) of the Clean Air Act. The purpose of transportation conformity is to ensure that federally supported highway and transit project activities are consistent with (“conform to”) the purpose of a SIP. Conformity to the purpose of the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS. EPA's transportation conformity rule establishes the criteria and procedures for determining whether transportation activities conform to the state air quality plan. 40 CFR part 51, subpart W and part 93. The purpose of the MOBILE6.2 transportation conformity budgets being proposed for approval today is to cap the emissions resulting from Connecticut's statewide transportation improvement program (STIP) in the effort to reduce emissions and achieve the NAAQS for ground level ozone. The modeling conducted as part of the STIP must show that emissions are below these emissions budgets. This process is known as a “conformity determination.”

In using MOBILE6.2 to calculate the revised budgets, states must consider whether these calculations continue to support attainment of the NAAQS for ozone. EPA has articulated its policy regarding the use of MOBILE6.2 in SIP development in its “Policy Guidance on the Use of MOBILE6.2 for SIP Development and Transportation Conformity”  5 and “Clarification of Policy Guidance for MOBILE6.2 in Mid-course Review Areas.”  6 Consistent with this policy guidance, Connecticut submitted a relative reduction comparison to show that its one-hour ozone attainment demonstration SIP continues to demonstrate attainment when applying the new MOBILE6.2 budgets.

In developing the EPA approved one-hour ozone attainment demonstrations, Connecticut relied on a “weight-of-evidence” approach that examined photochemical grid modeling results, emission projections, and air quality data. As part of Connecticut's one-hour attainment demonstration, the level of additional emission reductions needed for attainment was determined by applying a relative emission reduction technique. 7 This relied on measured air quality data and emission estimates from 1999, along with previous photochemical grid modeling with 2007 emission estimates, to determine whether additional emission reductions were necessary to provide for a projection of attainment for Connecticut in 2007. EPA concluded that attainment could be demonstrated if emission reductions expected from the federal motor vehicle Tier 2 program were incorporated into the SIP, and Connecticut subsequently incorporated this program into the SIP as part of revisions submitted to EPA in February 2000 and October 2001, respectively. 8

CTDEP used a similar approach to determine if the 2007 MOBILE6.2 emission projections remain consistent with the approved attainment plans. CTDEP analyzed 1999 through 2007 to compare the relative emission reductions projected by MOBILE6.2 to those projected by MOBILE5b to determine if the relative reductions estimated over the 1999-2007 period with MOBILE6.2 equal or exceed those estimates using MOBILE5b.

MOBILE6.2 generally calculates higher emission factors than MOBILE5b between the base year and the attainment year, or 1999 and 2007 for the budgets that are being approved today. As can be seen in table 1, for the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area, MOBILE6.2 reductions are greater than MOBILE5b for emissions of total precursors (39.7 tons per summer day (tpd) versus 26.6 tpd), VOC (18.3 tpd versus 7.9 tpd), and NO X (21.4 tpd versus 18.7 tpd). In addition, the rate of emission reductions between the base year of 1999 and attainment year of 2007 is also greater with MOBILE6.2 than MOBILE5b for total precursor emissions (46.3% versus 44.3%) and VOC emissions (52.7% versus 44.9%); but slightly lower for NO X emissions (41.9% versus 44.1%). Therefore, MOBILE6.2 provides an “excess” rate of VOC reductions that is 7.9% above what MOBILE5b provided in the approved attainment SIP. In addition, MOBILE6.2 provides a 2.2% smaller rate of NO X reductions compared to the MOBILE5b emissions included in the approved attainment SIP.

To demonstrate the net beneficial effect on ozone of the combined 7.9% “excess” VOC reductions and the 2.2% NO X “deficit,” CTDEP applied the emission reduction factors previously approved by EPA to determine the amount of additional reductions needed in Connecticut to ensure attainment of the ozone standard. See Addenda to the Ozone Attainment Demonstrations for the Southwest Connecticut Severe Ozone Nonattainment Area and Greater Connecticut Serious Ozone Nonattainment Area, section 3.B. at 4-7 (January 14, 2000). This method determined that emission reductions of 0.83% VOC and 0.61% NO X resulted in an ozone air quality improvement of one ppb in the New York City modeling domain. Scaling these “normalized” values, the 2.2% MOBILE6.2 NO X deficit described above can be offset by 3.0% ( i.e. , (0.83/0.61) × 2.2% = 3.0% with rounding) of the 7.9% MOBILE6.2 VOC “excess.”  9 This substitution results in a final MOBILE6.2 VOC “excess” reduction of 4.9% (with a net zero balance of NO X ), relative to the MOBILE5b emissions included in the approved attainment SIP. Similar calculations are summarized in Table 1 for the Greater Connecticut nonattainment area.

The methodology used in these calculations differs from the methodology provided in EPA guidance, 10 but Connecticut has provided evidence that these budgets continue to support attainment of the ozone NAAQS by 2007 in both nonattainment areas. First, to assess the relative level of reduction under the MOBILE5 model compared with the MOBILE6 model, Connecticut compared mobile source emission reductions from 1999 to 2007, the attainment year for these areas. EPA's guidance, however, recommends comparing reductions from the base year of the attainment demonstration with the attainment year. For most purposes, the base year for the attainment demonstrations in Connecticut was 1990. Nevertheless, Connecticut believes that it makes more sense to start the comparison with 1999 levels, because that was the year Connecticut assembled its attainment demonstration for EPA using a weight of evidence assessment of various emissions and air quality trends. Much of the data used in that weight of evidence assessment came from the late 1990's and made projections of attainment in 2007 by assessing how past trends in that data would likely proceed from 1999 forward. See e.g. the discussion of the Regional Design Value Rollback Analysis for the Connecticut Nonattainment Areas (64 FR at 70341-70342 (Greater Connecticut) and at 70359 (Southwest Connecticut) (December 16, 1999)). Connecticut and EPA effectively used 1999 as a base year for several purposes when constructing the weight of evidence analysis supporting our approval of the state's attainment demonstration. Therefore, Connecticut used 1999 as the starting point for assessing whether the relative level of reductions in mobile emissions projected using MOBILE6 still supports its attainment demonstration, since a critical step in that demonstration relied on projections from 1999 to 2007.

Second, Connecticut used the factors described above to compare and offset the “deficit” in NO X reductions with “excess” VOC reductions. EPA's guidance does not directly address the situation where the overall level of ozone precursor reductions appears to support the weight of evidence analysis underlying the attainment demonstration but there is a slight shortfall in the level of reduction for one pollutant. Connecticut has looked to an analogous exercise the State and EPA undertook to calculate how to balance between NO X and VOC reductions when calculating emission reduction shortfalls in ozone nonattainment areas. EPA believes the State's use of these factors is a reasonable extension of that methodology, since the goal of both exercises is to compare the relative benefit in reducing ozone that results from reductions in either VOC or NO X .

Application of this methodology provides evidence that MOBILE6.2 projects a net reduction in total ozone precursor emissions between the 1999 base year and the 2007 attainment year that are at least equivalent to the level of reduction Connecticut relied on for its attainment demonstration using MOBILE5. These excess emission reductions determined with MOBILE6.2 reaffirm that the transportation budgets developed with MOBILE6.2 are consistent with Connecticut's previously approved attainment demonstrations.

In addition to the evaluation of on-road mobile source emissions, CTDEP also reevaluated the effects on the attainment plan of recent changes to 2007 growth projections for other emission source categories ( i.e. , point, area, and non-road mobile sources). The Connecticut Department of Labor's updated total employment projections for the manufacturing sector are actually lower than previous projections by almost five percent. In addition, population projections were also updated. When updated employment growth and population forecasts are incorporated into emission calculations, 11 overall ozone precursor emission projections for 2007 are slightly lower than those included in the previously approved attainment plan. These lower emission projections further support the attainment plan's conclusion that emission reductions included in the SIP are on target to achieve one-hour ozone attainment by 2007 in both the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area and the Greater Connecticut area.

Connecticut must submit a mid-course review of its attainment demonstration by December 31, 2004 to ensure that the state remains on track to attain by 2007. During that mid-course review, EPA can reconfirm that these mobile budgets continue to support Connecticut's attainment demonstration.

Lastly, to further support the approval of Connecticut's mobile source budgets, EPA supplemented Connecticut's analysis with an analysis of its own based on information provided by the CTDEP. For the entire state, we compared the relative reduction, by percentage, between the 1990 and 2007 inventories generated using the two different versions of the models to ensure that the approved 1-hour ozone attainment demonstrations for Connecticut will continue to demonstrate attainment by 2007. The methodology for this relative reduction comparison consists of comparing the revised MOBILE6 baseline and attainment case inventories, by pollutant, with the previously approved MOBILE5 inventory totals for the State of Connecticut to determine if attainment can still be predicted by the attainment date.

Table 2 below contrasts Connecticut's revised MOBILE6-based motor vehicle emissions inventories with the previously approved MOBILE5-based inventories for the two Connecticut nonattainment areas, by pollutant, expressed in units of tons per summer day (tpd). These revised inventories were developed using the latest available information including vehicle registration data, traffic data, vehicle miles traveled, and growth assumptions. Non-road emissions were calculated using the latest version of EPA's non-road model.

This relative reduction comparison shows that the reduction in NO X emissions, on a percentage basis, is greater in the revised MOBILE6-based inventories than in the previously approved MOBILE5 inventories. For VOC emissions, the relative reduction in the revised MOBILE6-based inventories is slightly less than in the previously approved MOBILE5 inventories. However, the “deficit” in VOC reductions is more than offset with the “excess” in NO X reductions when the technique that Connecticut DEP used in its analysis is performed. This analysis satisfies the conditions outlined in EPA's MOBILE6 Policy guidance, and demonstrates that the new levels of motor vehicle emissions calculated using MOBILE6 continue to support achievement of the projected attainment of the 1-Hour Ozone NAAQS by the attainment date of 2007 for Connecticut ozone nonattainment areas.

Table 3 contains Connecticut's revised budgets that EPA is approving today. These budgets were developed using the latest planning assumptions, including 2000 vehicle registration data, VMT, speeds, fleet mix, and SIP control measures. For the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area, EPA is approving budgets for 2005 and 2007, and for the Greater Connecticut nonattainment area EPA is approving budgets for 2007.

As stated in section IIA above, EPA has posted an announcement on EPA's Office of Transportation and Air Quality Web site http://www.epa.gov/otaq/transp/conform/currsips.htm, initiating the adequacy review process for the MOBILE6.2 2007 attainment year budgets for both areas in Connecticut in accordance with EPA guidance. 12 The 2005 budgets for the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area must be approved before being used in a conformity analysis and are not subject to the adequacy process. The 2007 MOBILE6.2 attainment year budgets may be used for conformity determinations upon EPA's determination of “adequate,” as described in EPA guidance  13 and specified in EPA's approvals of Connecticut's attainment demonstrations. 14

Once the MOBILE6.2 2007 attainment year motor vehicle emissions budgets for the Connecticut portion of the New York-Northern New Jersey-Long Island are deemed adequate, transportation air quality conformity analyses, prepared with MOBILE6.2, can be evaluated in southwestern Connecticut using the SIP-approved MOBILE5b 2005 and the MOBILE6.2 2007 budgets for the emission budget tests.

The MOBILE6.2 budgets for 2005 and 2007 for the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area and for 2007 for the Greater Connecticut nonattainment area will be approved effective 60 days from today. Once the MOBILE6.2 budgets are approved, all future transportation conformity analyses in Connecticut will be required to demonstrate conformity with the new MOBILE6.2 budgets.

EPA is approving Connecticut's revision submitted on June 17, 2003 containing 2005 and 2007 motor vehicle emissions budgets using MOBILE6.2 for the Connecticut portion of the New York-Northern New Jersey-Long Island nonattainment area and 2007 budgets for the Greater Connecticut nonattainment area.

The EPA is publishing this action without a prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective February 17, 2004 without further notice unless the Agency receives relevant adverse comments by January 20, 2004.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. Only parties interested in commenting on the proposed rule should do so at this time. If EPA receives no such comments, the public is advised that this rule will be effective on February 17, 2004 and EPA will take no further action on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this 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 (Public Law 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. 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 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 February 17, 2004. Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal. 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).)

This final rule implements the tax refund offset provisions of the Debt Collection Improvement Act of 1996 (DCIA), Pub. L. 104-134, 110 Stat. 1321-358, codified at 31 U.S.C. 3720A. As required by the tax refund offset provisions of the DCIA, a Federal agency owed a past-due debt must notify the Secretary of the Treasury of such debt for collection by tax refund offset in accordance with regulations promulgated by the Secretary of the Treasury. The Financial Management Service (FMS), a bureau of the Department of the Treasury (Treasury), is responsible for promulgating the regulations implementing this and other debt collection tools established by the DCIA. The Treasury Final Rule, as amended, is published in section 285.2 of title 31 of the Code of Federal Regulations.

In accordance with the requirements of the DCIA and the implementing regulations issued by the Department of the Treasury at 31 CFR 285.2, the rule establishes the rules and procedures for certifying and referring a past-due debt to FMS for tax refund offset, correcting and updating referral information transmitted to FMS, and providing the debtor with written notice at least 60 days before the Department refers a debt to FMS. This written notice informs the debtor of the nature and amount of the debt, that the debt is past-due and legally enforceable, that the Department intends to enforce collection by referring the debt to the Department of the Treasury for tax refund offset, and that the debtor has a right to inspect and copy Department records relating to the debt, enter into a repayment agreement, and request review and present evidence that all or part of the debt is not past-due or legally enforceable.

Except for minor changes to make the provisions agency-specific, the final rule is substantially identical to the Treasury Final Rule. In accordance with the substantive and procedural requirements of the DCIA and the Treasury Final Rule, the final rule establishes HHS rules and procedures for:

1. Certifying and referring a past-due debt to FMS for tax refund offset.

2. Correcting and updating referral information transmitted to FMS.

3. Providing the debtor with written notice at least 60 days before referring a debt to FMS. This written notice must inform the debtor of the nature and amount of the debt, that the debt is past-due and legally enforceable, that the Department intends to enforce collection by referring the debt to the Department of the Treasury for tax refund offset, and that the debtor has a right to inspect and copy Department records relating to the debt, enter into a repayment agreement, and request review and present evidence that all or part of the debt is not past-due or legally enforceable.

No public comments were received.

We have examined the impact of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), as amended by Executive Order 13258 (February 2002, Amending Executive Order 12866 on Regulatory Planning and Review) and the Regulatory Flexibility Act (RFA) (September 19, 1980; Pub. L. 96-354), the Unfunded Mandated Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132 (August 1999, Federalism).

Executive Order 12866 (the Order), as amended by Executive Order 13258, directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize the benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in 1 year). We have determined that the final rule is consistent with the principles set forth in the Order, and we find that the final rule would not have an effect on the economy that exceeds $100 million in any one year. In addition, this rule is not a major rule as defined at 5 U.S.C. 804(2). In accordance with the provisions of the Order, the rule was reviewed by the Office of Management and Budget.

It is hereby certified under the RFA that this final rule will not have a significant economic impact on a substantial number of small entities. This final rule applies only to individuals with past-due debts owed to the United States.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditure of in any 1 year by State, local, or tribunal governments, in the aggregate, or by the private sector, of $100 million. As noted above, we find that the final rule would not have an effect of this magnitude on the economy.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. We have reviewed the final rule under the threshold criteria of Executive Order 13132, Federalism, and have determined that this final rule would not have substantial direct impact on States, or on the distribution of power and responsibilities among the various levels of government. As there are no Federalism implications, a Federalism impact statement is not required.

For purposes of the Paperwork Reduction Act, 44 U.S.C. chapter 35, this final rule will impose no new reporting or record-keeping requirements on any member of the public.