12872 Federal Register / Vol. 66, No. 41 / Thursday, March 1, 2001 / Rules and Regulations

SUPPLEMENTARY INFORMATION: Section

301, in conjunction with sections 110

and 111(c)(1) of the Clean Air Act as

amended November 15, 1990, authorize

EPA to delegate authority to implement

and enforce the standards set out in 40

CFR part 60, New Source Performance

Standards (NSPS).

On May 20, 1977, the EPA initially

delegated the authority for

implementation and enforcement of the

NSPS program to Knox County. This

agency has subsequently requested a

delegation of authority for

implementation and enforcement of the

previously adopted, undelegated part 60

NSPS categories listed below as well as

future NSPS categories codified in 40

CFR part 60.

Delegation Requested on May 8, 1997:

40 CFR part 60, Subpart VV, as

amended 6–12–96

40 CFR part 60, Subpart Dc, as amended

5–8–96

Delegation Requested on October 18,

1996:

40 CFR part 60, Subpart Ea, as amended

12–19–95

40 CFR part 60, Subpart Eb, as amended

12–19–95

40 CFR part 60, Subpart WWW,

promulgated 3–12–96

All current NSPS categories are

delegated with the exception of the

following sections within those subparts

that may not be delegated. Future NSPS

regulations will contain a list of sections

that will not be delegated for that

subpart.

1. Subpart A—§ 60.8(b) (2) and (3),

§ 60.11(e) (7) and (8), § 60.13 (g), (i) and

(j)(2).

2. Subpart B—§ 60.22, § 60.27, and

§ 60.29.

3. Subpart Da—§ 60.45a.

4. Subpart Db—§ 60.44b(f),

§ 60.44b(g), § 60.49b(a)(4).

5. Subpart Dc—§ 60.48c(a)(4).

6. Subpart Ec—§ 60.56(c)(i).

7. Subpart J—§ 60.105(a)(13)(iii),

§ 60.106(i)(12).

8. Subpart Ka—§ 60.114a.

9. Subpart Kb—§ 60.111b(f)(4),

§ 60.114b, § 60.116b(e)(3) (iii) and (iv),

§ 60.116b(f)(2)(iii).

10. Subpart O—§ 60.153(e).

11. Subpart EE—§ 60.316(d).

12. Subpart GG—§ 60.334(b)(2),

§ 60.335(f)(1).

13. Subpart RR—§ 60.446(c).

14. Subpart SS—§ 60.456(d).

15. Subpart TT—§ 60.466(d).

16. Subpart UU—§ 60.474(g).

17. Subpart VV—§ 60.482–1(c)(2) and

§ 60.484.

18. Subpart WW—§ 60.496(c).

19. Subpart XX—§ 60.502(e)(6).

20. Subpart AAA—§ 60.531, § 60.533,

§ 60.534, § 60.535, § 60.536(i)(2),

§ 60.537, § 60.538(e), § 60.539.

21. Subpart BBB—§ 60.543(c)(2)(ii)(B).

22. Subpart DDD—§ 60.562–2(c).

23. Subpart III—§ 60.613(e).

24. Subpart NNN—§ 60.663(e).

25. Subpart RRR—§ 60.703(e).

26. Subpart SSS—§ 60.711(a)(16),

§ 60.713(b)(1)(i), § 60.713(b)(1)(ii),

§ 60.713(b)(5)(i), § 60.713(d), § 60.715(a),

§ 60.716.

27. Subpart TTT—§ 60.723(b)(1),

§ 60.723(b)(2)(i)(C), § 60.723(b)(2)(iv),

§ 60.724(e), § 60.725(b).

28. Subpart VVV—§ 60.743(a)(3)(v)(A)

and (B), § 60.743(e), § 60.745(a),

§ 60.746.

29. Subpart WWW—§ 60.754(a)(5).

After a thorough review of the

request, the Regional Administrator

determined that such a delegation was

appropriate for all source categories. All

sources subject to the requirements of

40 CFR part 60 will now be under the

jurisdiction of the appropriate above

mentioned agency.

Since review of the pertinent laws,

rules, and regulations for the local

agency has shown them to be adequate

for implementation and enforcement of

existing, previously adopted,

undelegated NSPS and future NSPS,

EPA hereby notifies the public that it

has delegated the authority for existing,

previously adopted and undelegated

NSPS as well as the mechanism for

delegation (adopt-by-reference) of future

NSPS source categories upon

publication of this Federal Register

document.

Administrative Requirements

The Office of Management and Budget

has exempted this regulatory action

from Executive Order 12866, entitled

‘‘Regulatory Planning and Review.’’

The Congressional Review Act, as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (5 U.S.C. 801 et seq.), 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. However, Section 808 allows the

issuing agency to make a rule effective

sooner than otherwise provided by the

Congressional Review Act if the agency

makes a good cause finding that notice

and public procedure is impracticable,

unnecessary or contrary to the public

interest. This determination must be

supported by a brief statement. 5 U.S.C.

808(2). As stated previously, EPA has

made such a good cause finding,

including the reasons therefor, and

established an effective date of March 1,

2001. EPA will submit a report

containing this rule and other required

information to the U.S. Senate, the U.S.

House of Representatives, and the

Comptroller General of the United

States prior to publication of the rule in

the Federal Register. This action is not

a ‘‘major rule’’ as defined by 5 U.S.C.

804(2).

Authority: This document is issued under

the authority of sections 101, 110, 111, 112

and 301 of the Clean Air Act, as Amended

(42 U.S.C. 7401, 7410, 7411, 7412 and 7601).

Dated: January 16, 2001.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

[FR Doc. 01–4977 Filed 2–28–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 70 and 71

[FRL–6934–5]

RIN 2060–AJ04

State and Federal Operating Permits

Programs: Amendments Compliance

Certification Requirements

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: We, the EPA, are taking direct

final action to amend the State

Operating Permits Program and the

Federal Operating Permits Program. The

amendments are in response to the

United States Circuit Court of Appeals

October 29, 1999, decision to remand to

us part of the October 22, 1997,

Compliance Assurance Monitoring

rulemaking that included revisions

describing the ongoing compliance

certification content requirements. In

particular, the Court ruled that the

compliance certification must address

whether the affected facility or source

has been in continuous or intermittent

compliance. This action will revise only

certain sections to carry through the

revisions to the compliance certification

requirements.

EFFECTIVE DATE: This final rule

amendment is effective on April 30,

2001 without further notice, unless we

receive adverse comments on this direct

final rule by April 2, 2001 or we receive

a request for a hearing by March 16,

2001. If we receive timely adverse

comment or a timely hearing request,

we will publish a withdrawal in the

Federal Register informing you, the

public, that this direct final rule will not

take effect.

ADDRESSES: Comments. You may submit

comments on this rulemaking in writing

Federal Register / Vol. 66, No. 41 / Thursday, March 1, 2001 / Rules and Regulations 12873

(original and two copies, if possible) to

Docket No. A–91–52 to the following

address: Air and Radiation Docket and

Information Center (6102), US

Environmental Protection Agency, 401

M Street, SW., Room 1500, Washington,

DC 20460.

Docket. A docket containing

supporting information used in

developing this direct final rule

amendment is available for public

inspection and copying at our docket

office located at the above address in

Room M–1500, Waerside Mall (ground

floor). You are encouraged to phone in

advance to review docket materials or

schedule an appointment by phoning

the Air Docket Office at (202) 260–7548.

Refer to Docket No. A–91–52. The

Docket Office may charge a reasonable

fee for copying docket materials.

FOR FURTHER INFORMATION CONTACT:

Peter Westlin, Environmental Protection

Agency, Office Air Quality Planning and

Standards, at 919/541–1058, e-mail:

westlin. peter@epa.gov, facsimile 919/

541–1039.

SUPPLEMENTARY INFORMATION: We are

publishing these rule amendments

without a prior proposal because we

consider this to be noncontroversial

amendment, given the Court’s decision,

and we do not expect to receive any

adverse comment. We believe that this

change to the previously promulgated

rule adequately addresses the Court’s

direction expressed in the remand. In

the event we receive adverse comment

or a hearing request and this direct final

rule is subsequently withdrawn, we are

also publishing a separate document

that will serve as the proposal of this

amendment in the ‘‘Proposed Rules’’

section of this Federal Register

publication. This final rule amendment

will be effective on April 30, 2001

without further notice, unless we

receive adverse comment on this

rulemaking by April 2, 2001 or we

receive a request for a hearing by March

11, 2001. If we receive timely adverse

comment or a timely hearing request,

we will publish a withdrawal in the

Federal Register informing you that this

direct final rule will not take effect. In

that event, we will address all public

comments in a subsequent final rule,

based on the proposed rule amendment

published in the ‘‘Proposed Rules’’

section of this Federal Register

document. Because we will not provide

further opportunity for public comment

on this action, you must comment on

this amendment at this time if you wish

to do so.

Regulated entities. The requirements

in this regulation may apply to you if

you own or operate any facility subject

to the compliance certification

requirements of part 70 to 71. These

regulations apply to, but are not limited

to, owners or operators of all sources

who must have operating permits under

either of these programs. State, local,

and tribal governments are potentially

affected tot he extent that those

governments must revise existing

compliance certification requirements

in implementing the part 70 operating

permits program to make consistent

with these revisions.

Internet. The text of this Federal

Register document is also available on

our web site on the Internet under the

Recently Signed Rules category at the

following address: http://www.epa.gov/

ttn/oarpg/rules.html and the OAQPS,

Emissions Measurement Center website

at http://www.epa.gov/ttn/emc/. Our

Office of Air and Radiation (OAR)

homepage on the Internet also contains

a wide range of information on the air

toxics program and many other air

pollution programs and issues. The

OAR’s homepage address is: http://

www.epa.gov/oar.

Electronic Access and Filing

Addresses. The official record for this

rulemaking, as well as the public

version, has been established for this

rulemaking under Docket No. A–91–52

(including comments and data

submitted electronically). A public

version of this record, including

printed, paper versions of electronic

comments, which does not include any

information claimed as confidential

business information (CBI), is available

for inspection from 8 a.m. to 5:30 p.m.,

Monday through Friday, excluding legal

holidays. The official rulemaking record

is located at the address listed in the

ADDRESSES section at the beginning of

this preamble. You may submit

comments on this rulemaking

electronically to the EPA’s Air and

Radiation Docket and Information

Center at their address: A-and-RDocket@epa.gov. Electronic comments

must be submitted as an ASCII file

avoiding the use of special characters

and any form of encryption. Comments

and data will also be accepted on disks

in WordPerfect in 6.1 file format or

ASCII file format. You must identify all

comments and data in electronic form

by the docket number (A–91–52). You

should not submit CBI through

electronic mail. You may file electronic

comments online at any Federal

Depository Library.

Outline. The information in this

preamble is organized as follows:

I. Authority

II. Background

A. Regulatory and litigation background

B. Direction from Court

III. Regulatory Revisions and Effects

A. What are the regulatory revisions?

B. What must I include in the compliance

certification?

IV. Administrative Requirements

A. Executive Order 12866: ‘‘Significant

Regulatory Action Determination’’

B. Regulatory Flexibility

C. Paperwork Reduction Act

D. Unfunded Mandates Reform Act

E. Docket

F. Executive Order 13132: Federalism

G. Executive Order 13045: Protection of

Children from Environmental Health

Risks and Safety Risks

H. Executive Order 13084: Consultation

and Coordination with Indian Tribal

Governments

I. Submission to Congress and the General

Accounting Office

J. National Technology Transfers and

Advancement Act

I. Authority

The statutory authority for this action

is provided by sections 114 and 501

through 507 of the Clean Air Act, as

amended (42 U.S.C. 7414a and 7661–

7661f).

II. Background

A. Regulatory and Litigation

Background

On October 22, 1997 (62 FR 54900),

we published the final part 64,

Compliance Assurance Monitoring

(CAM) rule, and revisions to parts 70

and 71, the State and Federal Operating

Permits Programs. Part 64 included

procedures, design specifications, and

performance criteria intended to satisfy,

in part, the enhanced monitoring

requirements of the Clean Air Act (‘‘the

Act’’). The revisions to parts 70 and 71

included language to §§ 70.6(c)(5)(iii)(B)

and 71.6(c)(5)(iii)(B) specifying the

minimum information necessary for the

compliance certification required of

responsible officials.

Subsequent to that publication, the

Natural Resources Defense Council, Inc.

(NRDC) and the Appalachian Power

Company et al. (industry) filed petitions

with the United States Court of Appeals

for the District of Columbia Circuit

(Court) challenging several aspects of

the CAM rule. Industry challenged our

authority to promulgate the parts 70 and

71 language requiring that compliance

certifications be based on any other

material information including credible

evidence.

The NRDC argued that the monitoring

in part 64 failed to meet Clean Air Act

requirements regarding enhanced

monitoring and that the parts 70 and 71

revisions were inconsistent with the

Act’s explicit requirement that

compliance certifications indicate

12874 Federal Register / Vol. 66, No. 41 / Thursday, March 1, 2001 / Rules and Regulations

whether compliance is continuous or

intermittent.

B. Direction From Court

On October 29, 1999, the Court issued

its decision (see docket A–91–52, item

VIII–A–1) Natural Resources Defense

Council v. EPA, 194 F.3d 130 (D.C. Cir.

1999), on these challenges. Most

importantly, the court held that ‘‘EPA’s

adoption of CAM as ‘‘enhanced

monitoring’’ meets the requirements of

the Clean Air Act.’’ Id. at 137. The court

also dismissed the industry’s challenge

as unripe relying on its earlier decision

involving EPA’s Credible Evidence

Rule. See Clean Air Implementation

Project v. EPA, 150 F.3d 1200 (D.C. Cir.

1998). The court did, however, agree

with NRDC that EPA’s removal from

parts 70 and 71 of the explicit

requirement that compliance

certifications address whether

compliance is continuous or

intermittent revisions ran contrary to

the statutory requirement that each

source must certify ‘‘whether

compliance is continuous or

intermittent * * *’’ See section

114(a)(3)(D), 42 U.S.C. 7414(a)(3)(D).

Our rationale for revising the

compliance certification language had

been that so long as the compliance

certification addressed the substance of

whether compliance had been

continuous or intermittent there was no

need to require responsible officials to

use the terms ‘‘continuous’’ or

‘‘intermittent.’’ The court disagreed

finding Congress’’ intent to be ‘‘express

and unambiguous.’’ 194 F.3d at 138.

Accordingly, the court remanded that

portion of the CAM rule ‘‘pertaining to

‘continuous or intermittent’ compliance

certification’’ to us for revision

consistent with the court’s decision.

III. Regulatory Revisions and Effects

A. What Are the Regulatory Revisions?

In response to the court’s remand, we

have added text to sections,

§§ 70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B),

to require that the responsible official

for the affected facility include in the

annual (or more frequent) compliance

certification whether compliance during

the period was continuous or

intermittent. Specifically, the revised

text, including the introductory

language for both sections reads:

‘‘Permits shall include each of the

following * * *: A requirement that the

compliance certification include all of

the following * * *: The status of

compliance with the terms and

conditions of the permit for the period

covered by the certification, including

whether compliance during the period

was continuous or intermittent. The

certification shall be based on the

method or means designated in

paragraph (c)(5)(iii)(B) of this section.’’

The italicized text indicates the

revisions made in response to the Court

decision. Other text within both of these

sections remains as promulgated in

1997. Under this revised language, the

responsible official must include in the

compliance certification a statement as

to whether compliance during the

period was continuous or intermittent.

We believe these revisions respond

directly and adequately to the Court’s

decision to remand the compliance

certification requirements to us and are

consistent with the requirements of the

Act.

The Court’s decision and this

amendment to our regulations also

necessitate a change to a guidance

document issued in connection with the

CAM rulemaking. In ‘‘Compliance

Assurance Monitoring Rule

Implementation Questions and

Responses’’ (from Steve Hitte, OPG–

ITPID to APMs, Regions I–X (January 8,

1998)), we advised permitting

authorities that they could require

sources to certify compliance using

either existing state regulations that

tracked the statute (e.g., certify to

whether compliance was continuous or

intermittent) or the certification

language in the CAM revisions to Part

70. See at Question 10. This guidance

was based on our interpretation that (1)

the statutory requirement to certify

whether compliance is continuous or

intermittent had sufficient flexibility to

allow the approach taken in the

revisions to Part 70 and (2) the state

regulations on compliance certification

generally tracked exactly the statutory

language on certification of continuous

or intermittent compliance. The Court,

however, disagreed with our

interpretation of the statutory language

and remanded the revisions to Part 70

to us. As a result, the guidance above is

no longer justified. Accordingly, we

withdraw the guidance provided to

permitting authorities in Question and

Response 10 in the above-mentioned

guidance to the extent it states that

permitting authorities may allow

certifications based on the Part 70

revisions set aside by the Court. We are

aware that most if not all approved state

program regulations continue to require

responsible officials to certify whether

compliance was intermittent or

continuous. Accordingly, any state

programs that followed the

interpretation in Question 10 above

should be able to expeditiously require

certifications to be based upon the

proper statutory certification language.

B. What Must I Include in the

Compliance Certification?

The compliance certification is your

assessment, signed by your facility’s

responsible official, as to whether your

facility complied with the terms and

conditions of the permit. The

compliance certification includes three

main elements. The first is

identification of all the permit terms

and conditions to which your facility is

subject. These include applicable design

provisions, work practice elements,

required operating conditions, and

emissions limitations in addition to

general and specific monitoring,

reporting, and record keeping

requirements.

Second, you must identify the

method(s) and any other material

information used to determine

compliance status of each term and

condition. The method(s) includes at a

minimum any testing and monitoring

methods required by Parts 70 or 71 that

were conducted during the period for

the certification. You must describe

whether the data collection using the

methods referenced for the compliance

certification provide continuous or

intermittent data.

Third, you must certify as to the

status of compliance including whether

compliance was continuous or

intermittent. You must base this status

on the results of the identified methods

and other material information. You

must note as possible exceptions to

compliance any deviations from the

permit requirements and any

excursions, or exceedances as defined in

part 64, or other underlying applicable

requirements, during which compliance

is required.

You can find additional explanation

on our interpretation of a certification of

continuous or intermittent compliance

in the preamble to the final CAM rule.

62 FR 54937

IV. Administrative Requirements

A. Executive Order 12866: ‘‘Significant

Regulatory Action Determination’’

Under Executive Order 12866 (58 FR

51735, October 4, 1993), we must

determine whether the regulatory action

is ‘‘significant’’ and therefore subject to

Office of Management and Budget

(OMB) review and the requirements of

the Executive Order. The Order defines

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

Federal Register / Vol. 66, No. 41 / Thursday, March 1, 2001 / Rules and Regulations 12875

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety in

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlement, grants, user fees,

or loan programs of the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

Because the annualized cost of this

final rule amendment would be

significantly less than $100 million and

would not meet any of the other criteria

specified in the Executive Order, we

have determined that this action is not

a ‘‘significant regulatory action’’ under

the terms of Executive Order 12866, and

is therefore not subject to OMB review.

Executive Order 12866 also encourages

agencies to provide a meaningful public

comment period, and suggests that in

most cases the comment period should

be 60 days. However, in consideration

of the very limited scope of this

amendment, we consider 30 days to be

sufficient in providing a meaningful

public comment period for this

rulemaking.

B. Regulatory Flexibility

The Regulatory Flexibility Act (RFA)

requires us to conduct a regulatory

flexibility analysis of any rule subject to

notice and comment rulemaking

requirements unless the agency certifies

that the rule will not have a significant

economic impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and small

governmental jurisdictions. We

determined that these amendments to

the parts 70 and 71 do not have a

significant impact on a substantial

number of small entities. We intended

that compliance with the CAM rule

would provide monitoring information

sufficient to demonstrate whether

compliance was continuous or

intermittent. Even though we did not

require that the responsible official use

those terms in the revisions to the

compliance certification, we did require

that the responsible rely on the

monitoring information in making that

certification. That the court held that

the responsible official must address

explicitly whether compliance was

continuous or intermittent does not

substantively change the monitoring

responsibilities or economic impact.

The revisions to parts 70 and 71 in this

action add no burden on responsible

officials other than to categorize their

compliance status as continuous or

intermittent. We have determined that a

regulatory flexibility analysis is not

necessary in connection with this

action.

C. Paperwork Reduction Act

This amendment does not include or

create any information collection

activities subject to the Paperwork

Reduction Act, and therefore we will

submit no information collection

request (ICR) to OMB for review in

compliance with the Paperwork

Reduction Act, 44 U.S.C. 3501, et seq.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

we must prepare a written statement,

including a cost-benefit analysis, for

proposed and final rules with ‘‘Federal

mandates’’ that may result in

expenditures to State, local, and tribal

governments, in the aggregate, or to the

private sector, of $100 million or more

in any one year. Before we promulgate

a rule for which a written statement is

needed, section 205 of the UMRA

requires us to identify and consider a

reasonable number of regulatory

alternatives and adopt the least costly,

most cost-effective or least burdensome

alternative that achieves the objectives

of the rule. The provisions of section

205 do not apply when they are

inconsistent with applicable law.

Moreover, section 205 allows us to

adopt an alternative other than the least

costly, most cost-effective or least

burdensome alternative if the

Administrator publishes with the final

rule an explanation of why that

alternative was not adopted. Before we

establish any regulatory requirements

that may significantly or uniquely affect

small governments, including tribal

governments, we must have developed

under section 203 of the UMRA a small

government agency plan. That plan

must provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of regulatory proposals

with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

As noted above, this amendment is of

very narrow scope, and provides a

compliance alternative very similar to

one already available in the

promulgated part 70 compliance

certification requirements. We have

determined that this action contains no

regulatory requirements that might

significantly or uniquely affect small

governments. We have also determined

that this action does not contain a

Federal mandate that may result in

expenditures of $100 million or more

for State, local, and tribal governments,

in the aggregate, or the private sector in

any one year. Thus, today’s action is not

subject to the requirements of sections

202 and 205 of the UMRA.

E. Docket

The docket includes an organized and

complete file of all the information

upon which we relied in taking this

direct final action. The docketing

system is intended to allow you to

identify and locate documents readily

so that you can participate effectively in

the rulemaking process. Along with the

proposed and promulgated standards

and their preambles, the contents of the

docket, except for certain interagency

documents, will serve as the record for

judicial review. (See CAA section

307(d)(7)(A).)

F. Executive Order 13132: Federalism

Executive Order 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,

1999), requires us to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’

Under Section 6 of Executive Order

13132, we may not issue a regulation

that has federalism implications, that

imposes substantial direct compliance

costs, and that is not required by statute,

unless the Federal government provides

the funds necessary to pay the direct

compliance costs incurred by State and

local governments, or we consult with

State and local officials early in the

process of developing the proposed

regulation. We also may not issue a

regulation that has federalism

implications and that preempts State

law, unless we consult with State and

local officials early in the process of

developing the proposed regulation.

This final rule does not have

federalism implications. The rule will

12876 Federal Register / Vol. 66, No. 41 / Thursday, March 1, 2001 / Rules and Regulations

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. Today’s action

does not create a mandate on State, local

or tribal governments. The amendments

to the rule do not impose any new or

additional enforceable duties on these

entities. Thus, the requirements of

section 6 of the Executive Order do not

apply to this rule.

G. Executive Order 13045: Protection of

Children From Environmental Health

Risks and Safety Risks

Executive Order 13045 applies to any

rule that the EPA determines (1)

economically significant as defined

under E.O. 12866, and (2) the

environmental health or safety risk

addressed by the rule has a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency. These

amendments to the State and Federal

operating permits program are not

subject to E.O. 13045, entitled

Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997),

because it is not an economically

significant regulatory action as defined

by E.O. 12866, and the amendments do

not address an environmental health or

safety risk that would have a

disproportionate effect on children.

H. Executive Order 13084: Consultation

and Coordination With Indian Tribal

Governments

Under Executive Order 13084, we

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If we comply by

consulting, Executive Order 13084

requires us to provide to the Office of

Management and Budget, in a separate

identified section of the preamble to the

rule, a description of the extent of our

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires us to

develop an effective process permitting

elected officials and other

representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’ These amendments to

parts 70 and 71 do not significantly or

uniquely affect the communities of

Indian tribal governments. The

amendments to the rule do not impose

any new or additional enforceable

duties on these entities. Accordingly,

the requirements of section 3(b) of

Executive Order 13084 do not apply to

this action.

I. Submission to Congress and the

General Accounting Office

The Congressional Review Act, 5

U.S.C. 801 et seq., added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of

Congress and to the Comptroller General

of the United States. We will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of this final

rule in the Federal Register.

J. National Technology Transfer and

Advancement Act

Under section 12(d) of the National

Technology Transfer and Advancement

Act (NTTAA), Public Law 104–113

(March 7, 1996), we are required to use

voluntary consensus standards in its

regulatory and procurement activities

unless to do so would be inconsistent

with applicable law or otherwise

impractical. Voluntary consensus

standards are technical standards (e.g.,

materials specifications, test methods,

sampling procedures, business

practices, etc.) which are adopted by

voluntary consensus standard bodies.

Where we do not use available and

potentially applicable voluntary

consensus standards, the NTTA requires

us to provide Congress, through OMB,

an explanation of the reasons for not

using such standards. This action does

not involve technical standards.

Therefore, we did not consider the use

of any voluntary consensus standards.

List of Subjects in 40 CFR Parts 70 and

71

Environmental protection, Air

pollution control, Reporting and

recordkeeping requirements.

Dated: January 12, 2001.

Carol M. Browner,

Administrator.

For the reasons stated in the

preamble, we amend title 40, chapter I,

parts 70 and 71 of the Code of Federal

Regulations to read as follows:

PART 70—STATE OPERATING PERMIT

PROGRAMS

1. The authority citation for part 70

continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

2. Section 70.6 is amended by revising

paragraph (c)(5)(iii)(C) to read as

follows:

§ 70.6 Permit content.

* * * * *

(c) * * *

(5) * * *

(iii) * * *

(C) The status of compliance with the

terms and conditions of the permit for

the period covered by the certification,

including whether compliance during

the period was continuous or

intermittent. The certification shall be

based on the method or means

designated in paragraph (c)(5)(iii)(B) of

this section. The certification shall

identify each deviation and take it into

account in the compliance certification.

The certification shall also identify as

possible exceptions to compliance any

periods during which compliance is

required and in which an excursion or

exceedance as defined under part 64 of

this chapter occurred; and

* * * * *

PART 71—FEDERAL OPERATING

PERMITS PROGRAMS

1. The authority citation for part 71

continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

2. Section 71.6 is amended by revising

paragraph (c)(5)(iii)(C) to read as

follows:

§ 71.6 Permit content.

* * * * *

(c) * * *

(5) * * *

(iii) * * *

(C) The status of compliance with the

terms and conditions of the permit for

the period covered by the certification,

including whether compliance during

the period was continuous or

Federal Register / Vol. 66, No. 41 / Thursday, March 1, 2001 / Rules and Regulations 12877

intermittent. The certification shall be

based on the method or means

designated in paragraph (c)(5)(iii)(B) of

this section. The certification shall

identify each deviation and take it into

account in the compliance certification;

and

* * * * *

[FR Doc. 01–4975 Filed 2–28–01; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 64

[CC Docket No. 94–129; FCC 00–255 and

FCC 01–67]

Implementation of the Subscriber

Carrier Selection Changes Provisions

of the Telecommunications Act of

1996, Policies and Rules Concerning

Unauthorized Changes of Consumers

Long Distance Carriers

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: In this document, the

Commission adopts rules proposed in

the Second Report and Order and

Further Notice of Proposed Rulemaking

to implement the slamming provisions

of the Communications Act of 1934, as

amended by the Telecommunications

Act of 1996. Telecommunications

carriers are prohibited from carrier from

submitting or executing an

unauthorized change in a subscriber’s

selection of a provider of telephone

exchange service or telephone toll

service. This practice, known as

‘‘slamming,’’ enables those companies

who engage in fraudulent activity to

increase their customer and revenue

bases at the expense of consumers and

law-abiding companies. The rules

adopted in this document will improve

the carrier change process for

consumers and carriers alike, while

making it more difficult for

unscrupulous carriers to perpetrate

slams.

DATES: Effective April 2, 2001 except for

§§ 64.1130(a) through (c), 64.1130(i),

64.1130(j), 64.1180, 64.1190(d)(2),

64.1190(d)(3), 64.1190(e), and 64.1195,

which contain information collection

requirements that have not yet been

approved by the Office of Management

and Budget (OMB). The Commission

will publish a document in the Federal

Register announcing the effective date

of those sections.

FOR FURTHER INFORMATION CONTACT:

Dana Walton-Bradford, Attorney,

Accounting Policy Division, Common

Carrier Bureau, (202) 418–7400.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Third

Report and Order and Second Order on

Reconsideration (Third Report and

Order) in CC Docket No. 94–129, which

was released on August 15, 2000. This

summary also contains amendments

and modifications to the Third Report

and Order that were adopted in an

Order released on February 22, 2001.

The full text of this document is

available for public inspection during

regular business hours in the FCC

Reference Center, Room CY–A257, 445

Twelfth Street, SW., Washington, DC

20554.

I. Introduction and Background

1. In this Third Report and Order and

Second Order on Reconsideration

(Order), we adopt rules proposed in the

Second Report and Order and Further

Notice of Proposed Rulemaking (Section

258 Order or FNPRM, 64 FR 07745 (2/

16/1999) to implement Section 258 of

the Communications Act of 1934 (Act),

as amended by the Telecommunications

Act of 1996 (1996 Act). Section 258

prohibits any telecommunications

carrier from submitting or executing an

unauthorized change in a subscriber’s

selection of a provider of telephone

exchange service or telephone toll

service. This practice, known as

‘‘slamming,’’ enables those companies

who engage in fraudulent activity to

increase their customer and revenue

bases at the expense of consumers and

law-abiding companies. The rules we

adopt in this Order will improve the

carrier change process for consumers

and carriers alike, while making it more

difficult for unscrupulous carriers to

perpetrate slams.

2. In the Section 258 Order, we

established a comprehensive framework

designed to close loopholes used by

carriers who slam consumers and to

bolster certain aspects of our slamming

rules to increase their deterrent effect. In

particular, we adopted aggressive new

liability rules designed to take the profit

out of slamming. We also broadened the

scope of our slamming rules to

encompass all carriers and imposed

more rigorous verification measures. In

our First Reconsideration Order, we

amended certain aspects of the

slamming liability rules, granting in part

petitions for reconsideration of our

Section 258 Order. Although the

petitions raised a broad range of issues

relating to the slamming rules, the First

Reconsideration Order addressed only

those issues relating to our liability

rules, which had been stayed by the

D.C. Circuit. We chose to resolve those

issues separately, and on an expedited

basis, because of the overriding public

interest in reinstating the liability rules

in order to deter slamming.

3. When the Commission released the

Section 258 Order, it recognized that

additional revisions to the slamming

rules could further improve the

preferred carrier change process and

prevent unauthorized changes. Thus,

concurrent with the release of the

Section 258 Order, the Commission

issued a Further Notice of Proposed

Rulemaking and sought comment on the

following proposals: (1) Permitting the

authorization and verification of

preferred carrier changes over the

Internet; (2) requiring resellers to obtain

their own carrier identification codes

(CICs), or, in the alternative, some type

of pseudo-CIC that would provide

underlying facilities-based carriers and

subscribers of resellers with a way to

identify the service provider; (3)

modifying the independent third party

verification method; (4) defining the

term ‘‘subscriber’’ for purposes of

authorizing preferred carrier changes;

(5) requiring carriers to submit reports

on the number of slamming complaints

they receive; (6) creating a registration

requirement for all providers of

interstate telecommunications services;

and (7) requiring unauthorized carriers

to remit to authorized carriers certain

amounts in addition to the amount paid

by slammed subscribers.

4. On June 30, 2000, the President

signed into law a piece of legislation

that is relevant to our slamming rules

and some of the issues pending in this

proceeding, particularly our proposal in

the FNPRM to allow the authorization

and verification of preferred carrier

changes using the Internet. The

Electronic Signatures in Global and

National Commerce Act, S. 761 (E-Sign

Act) is intended to foster the

development of e-commerce, or

commerce conducted electronically over

the Internet. To accomplish this goal,

the E-Sign Act establishes a framework

governing the use of electronic

signatures and records in transactions in

or affecting interstate and foreign

commerce. With certain exceptions not

relevant here, the provisions of the ESign Act took effect on October 1, 2000.

5. In this Order, we adopt a number

of the proposals discussed in the

FNPRM, and we also address the

remaining issues that were raised on

reconsideration of the Section 258

Order. Specifically, in this Order, we

amend the current carrier change

authorization and verification rules to

expressly permit the use of Internet

Letters of Agency (Internet LOAs) in a