        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 223
        [Docket No.010723187-1241-02, I.D. 061101I]
        RIN 0648-AP33
        Threatened Fish and Wildlife; Status Review of the Gulf of Maine/Bay of Fundy Population of Harbor Porpoise under the Endangered Species Act (ESA)

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Notice of final determination and response to comments; notice of availability of final harbor porpoise status review; removal from candidate species list.

          SUMMARY:

          The National Marine Fisheries Service (NMFS) has completed a status review of the Gulf of Maine/Bay of Fundy (GOM/BOF) stock of harbor porpoise (Phocoena phocoena).  Based on analysis of the best scientific and commercial data available, as required by the Endangered Species Act (ESA), NMFS determined that listing this stock of harbor porpoise as threatened or endangered is not warranted at this time.  In addition, based on the current status of the GOM/BOF stock, NMFS is removing this stock from the ESA candidate species list.  This notice also announces the availability of the final status review.

          DATES:
          This determination was made on September 28, 2001.

          ADDRESSES:
          Copies of the final report of the status review can be obtained from: NMFS, Marine Mammal Division, 1315 East-West Highway, Silver Spring, MD 20910; or NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930-2298.

          FOR FURTHER INFORMATION CONTACT:
          Emily Hanson, Office of Protected Resources, 301-713-2322 ext. 101; or Kim Thounhurst, Northeast Region, 978-281-9138.  Individuals who use a telecommunications device for the deaf may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays.

        SUPPLEMENTARY INFORMATION:
        Electronic Access
        The final report of the status review on the GOM/BOF population of harbor porpoise is accessible by the Internet at http://www.nero.nmfs.gov/porptrp/. -
        Background
        On August 2, 2001 (66 FR 40176), NMFS published a draft review of the biological status of the Gulf of Maine/Bay of Fundy (GOM/BOF) harbor porpoise stock.  In the draft status review, NMFS made the preliminary determination that listing the GOM/BOF stock as threatened under the ESA was not warranted and that NMFS intended to remove the GOM/BOF harbor porpoise stock from the ESA candidate species  list.  In a status review completed in 1999 (64 FR 465, January 5, 1999), NMFS determined that listing the GOM/BOF population of harbor porpoise as threatened under the ESA was not warranted.  NMFS also published a notice retaining the population on the ESA candidate species list to continue to monitor the species status and the results of implementation of the Harbor Porpoise Take Reduction Plan (HPTRP)(64 FR 480, January 5, 1999).  The 1999 status review notice and the August 2001 draft status review notice also provided information on the background of ESA actions involving the GOM/BOF population of harbor porpoise, reviewed available scientific and commercial fishery information affecting the species, evaluated the status of the species according to criteria listed in the ESA, and described regulatory mechanisms in place to address harbor porpoise mortality and serious injury incidental to commercial fishing activities.    -

        After consideration of the draft status review and public comments received, NMFS has determined not to list the harbor porpoise as threatened or endangered under the ESA and to remove the species from the ESA candidate species list.  No significant changes have been made to the final report of the status review since publication of the draft in the Federal Register on August 2, 2001.  The final status review is available to the public as a separate document.  See ADDRESSES or information on Electronic Access in the SUPPLEMENTARY INFORMATION section of this notice for information on obtaining a copy of the final status review.  -
        Comments and Responses
        A summary of the comments on the status review and NMFS responses follows. -
        Comments on the Need for Listing

          Comment 1: Three commenters supported NMFS’ decision not to list harbor porpoise as threatened or endangered under the ESA.   -

          Response: No information has been received since the publication of the draft status review to change NMFS’ preliminary determination that listing is not warranted at this time.   -
        Comments on the Status of Harbor Porpoise

          Comment 2:  One commenter, citing various potential negative biases in the mortality estimate, stated that actual mortality of harbor porpoise is likely to be higher than the annual estimated average mortality presented in the draft status review. -

          Response: NMFS recognizes that mortality estimates contain uncertainties.  However, the estimates of mortality in U.S. and Canadian waters presented in the draft status review are the best available estimates.  Additionally, these uncertainties are incorporated into the population viability analysis, as discussed in the draft status review, which predicted no chance of extinction in 100 years.  These mortality estimates are reviewed and updated annually in NMFS Marine Mammal Stock Assessment Reports.  The draft revised stock assessment for harbor porpoise, including mortality data from 1999 and 2000, is expected to be reviewed by the Atlantic Marine Mammal Scientific Review Group in November of 2001.  The draft estimates will also be made available for public review and comment in the 2002 Stock Assessment Reports.

          Comment 3: One commenter stated that NMFS must undertake the research recommended by the take reduction team to: (1) determine whether pingers were functioning on both sides of an actual take; and (2) randomly test net strings to determine the proportion of functioning versus deployed pingers. -

          Response:  NMFS is preparing to conduct this research and anticipates conducting preliminary testing of pingers in the fall of 2001. -

          Comment 4: One commenter discussed the maximum rate of increase and recovery factor parameters, which are used to assess the status of harbor porpoise. -

          Response: The maximum rate of increase and recovery factor that NMFS used in conducting the harbor porpoise status review have been reviewed by the Atlantic Marine Mammal Scientific Review Group and the public through the annual Stock Assessment Report (SAR) process as mandated by section 117 of the MMPA.  These values are the best available for the assessment of the harbor porpoise population.  NMFS will consider this comment in its review of the SAR. -
        Comments on the Adequacy of Regulatory Mechanisms

          Comment 5:  One commenter stated that any changes in Fishery Management Council actions are likely to result in an increase in harbor porpoise mortality, and there is no plan in place to prevent this from happening.  Therefore, the commenter concluded that current regulatory mechanisms are not adequate to protect harbor porpoise. -

          Response:  NMFS’ current strategy for reducing serious injury and mortality of harbor porpoise in commercial fisheries is to combine measures promulgated under the Marine Mammal Protection Act (MMPA) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).  In the final rule implementing the HPTRP (63 FR 66464, December 2, 1998), NMFS considered the cumulative scope of management actions under the Magnuson-Stevens Act and MMPA that would affect harbor porpoise bycatch and determined that a combined strategy was the best administrative approach.  This strategy has reduced the bycatch to below the PBR level in both 1999 and 2000.  If Fishery Management Plan (FMP) changes that may increase harbor porpoise bycatch are proposed, NMFS has authority under the MMPA to implement measures to reduce bycatch to appropriate levels.  This adaptive strategy is adequate to address potential increases in harbor porpoise bycatch.   -

          Comment 6: One commenter stated that if NMFS is considering the reduction in mortality that is gained through fishery management actions as a means of assessing the efficacy of management measures, NMFS must also consider the result if these temporary actions are altered or removed.  The commenter noted that if closures are lifted or re-configured, the mortality of harbor porpoise is likely to increase once again.  These questions about the stability of the Fishery Management Council actions lead, as a consequence, to doubts about their adequacy over the long term.   -

          Response:  NMFS and the New England Fishery Management Council (Council) are responsible for meeting the objectives of the Multispecies FMP, which include harbor porpoise conservation goals parallel to those under the MMPA.  In addition, a member of the Council staff also sits on each of the two Harbor Porpoise Take Reduction Teams. -
        The history of implementation of harbor porpoise conservation measures under the Multispecies FMP, as described in the draft status review, clearly demonstrates the commitment of both NMFS and the Council to conserve harbor porpoise by restricting the Northeast sink gillnet fishery for groundfish as appropriate.  NMFS has multiple options to address any risks to harbor porpoise that might arise through proposed changes to the Multispecies FMP.  In addition, NMFS is a member of the Council, including the Council’s Plan Development team, and works cooperatively with the Council staff in developing changes to the FMP.  Therefore, NMFS will be aware of any of the Council’s proposed groundfish regulatory changes that may directly or indirectly affect harbor porpoise, and NMFS will work with the Council and the two Harbor Porpoise Take Reduction Teams to determine whether any changes to the Multispecies FMP would require additional measures to protect harbor porpoise in the HPTRP regulations. -

          Comment 7: One commenter stated that fishery-related management actions have had a positive impact on harbor porpoise bycatch, and that effect cannot be understated. -

          Response: See responses to Comments 5 and 6. -

          Comment 8: One commenter stated that if mortality of harbor porpoise is to be curtailed, then it is critical to enforce the laws and regulations protecting them.  The commenter also stated that the current level of enforcement is inadequate.  Another commenter stated that NMFS must seriously consider using observer data to identify individual violators. -

          Response: Increased enforcement presence was also recommended by the Gulf of Maine Harbor Porpoise Take Reduction Team.  At the Team’s recommendation, NMFS is working on a compliance and enforcement plan for the HPTRP.  At-sea boardings and direct observations of violations by NMFS enforcement and U.S. Coast Guard officers are the primary source of enforcement evidence used to develop a case.  Observer data are used to provide a measure of overall compliance with Take Reduction Plan requirements and aid in focusing enforcement efforts. -

          Comment 9: One commenter noted that while NMFS states in the draft status review that the agency will monitor actions taken by the Council, and “may also revise the HPTRP to incorporate all measures necessary to ensure reduced harbor porpoise bycatch rather than relying on FMP time-area closures”, it makes no commitment to do so. -

          Response:  As described in the response to Comment 6, NMFS is actively involved in the Council process.  The Council is also directly involved in the harbor porpoise take reduction process through membership of Council staff on the Harbor Porpoise Take Reduction Teams.   -
        It is appropriate to manage harbor porpoise bycatch through both the Magnuson-Stevens Act and MMPA as described in the response to Comment 6.  NMFS has the authority to adjust the U.S. harbor porpoise bycatch reduction program through the MMPA and/or the Magnuson-Stevens Act if the agency determines that proposed changes to FMPs would reduce harbor porpoise protection.  It is important to emphasize that the Multispecies FMP also includes an objective requiring the reduction of harbor porpoise bycatch. -

          Comment 10:  One commenter stated that the increase in harbor porpoise mortality between 1999 and 2000 may be an indication that mitigation measures are not sufficient. -

          Response: For both years the bycatch is below the PBR level.  However, NMFS agrees that increases in bycatch are a concern and will continue to monitor the harbor porpoise bycatch and the effectiveness of the HPTRP. -

          Comment 11: One commenter stated that NMFS must revise the HPTRP to incorporate as requirements, not merely by reference, all of the measures necessary to achieve both a take level below PBR and the zero mortality rate goal. -

          Response: The current suite of measures under the MMPA and Magnuson-Stevens Act have already reduced the bycatch of harbor porpoise to below the PBR level.  If the level of bycatch increases such that it exceeds PBR or does not continue toward the zero mortality rate goal, the agency will reconvene the take reduction team to address the issue.   -

          Comment 12:  NMFS’ bycatch reduction strategy is strongly predicated on a calculated level of pinger effectiveness for various areas and seasons.  This calculation does not accommodate any variation due to harbor porpoise habituation to pingers or the catch of harbor porpoise in pingered nets as a result of the failure of fishermen to fully comply with the pinger requirements. -

          Response: The expected level of pinger effectiveness does not consider habituation or non-compliance.  However, it is not currently possible to quantify these potential effects.  Furthermore, through the Harbor Porpoise Take Reduction Teams, NMFS has the authority to modify the HPTRP based on a new expected level of pinger effectiveness should such information become available. -
        Comments on the Removal of Harbor Porpoise from the Candidate Species List

          Comment 13: Two commenters supported and two commenters opposed removal of harbor porpoise from the ESA candidate species list. -

          Response: NMFS is removing the GOM/BOF stock of harbor porpoise from the ESA candidate species list.  This action is appropriate because of the current status of the species and the adequacy of regulatory mechanisms available to address risks to the population.  NMFS will continue to monitor the status of harbor porpoise pursuant to the stock assessment process mandated under section 117 of the MMPA.  In addition, NMFS will continue to monitor harbor porpoise bycatch, compliance with the HPTRP, and the potential effect of changes in FMPs on harbor porpoise bycatch.  The removal of this stock from the ESA candidate species list does not change NMFS’ mandates under the MMPA with regard to harbor porpoise protection under the HPTRP or other MMPA programs. -
        Final Determination
        Section 4(b)(1) of the ESA requires the Secretary of Commerce to make a listing determination solely on the basis of the best scientific and commercial data available and after taking into account efforts being made to protect the species.  Therefore, in reviewing the status of the GOM/BOF population of harbor porpoise, NMFS has assessed the status of the species according to the criteria in the ESA. -
        Since 1999, NMFS has obtained no information demonstrating that factors other than mortality incidental to commercial fishing could cause the stock to be in danger of extinction or likely to become so in the foreseeable future or that available regulatory mechanisms are inadequate to reduce harbor porpoise mortality and serious injury.  After analysis of the GOM/BOF population of harbor porpoise under the five ESA listing factors, NMFS has determined that the stock is not in danger of extinction throughout all or a significant portion of its range, and it is not likely to become endangered in the foreseeable future.  Therefore, listing the GOM/BOF population of harbor porpoise as threatened or endangered is not warranted at this time.  In addition, because of the current status of the species it is appropriate to remove the GOM/BOF harbor porpoise population from the ESA candidate species list. -
        The most significant factors that NMFS considered in making this determination are the new abundance estimate from the 1999 survey and the results of measures promulgated under the MMPA through the HPTRP and under the Magnuson-Stevens Act through the Northeast Multispecies FMP that directly or indirectly reduce the level of harbor porpoise mortality incidental to commercial fishing in U.S. waters, the Harbor Porpoise Conservation Strategy implemented by the Canada Department of Fisheries and Oceans, and the existing authority by which regulatory agencies can adapt management measures if unanticipated changes in porpoise bycatch patterns occur.  Although it is likely that porpoise mortality will continue to occur incidental to fishery operation, existing regulatory mechanisms and authority for amending these mechanisms to address bycatch in commercial fisheries are adequate to ensure that bycatch in commercial fisheries do not cause harbor porpoise to be in danger of extinction throughout all or a significant portion of its range, and it is not likely to become endangered in the foreseeable future.   -
        Although the HPTRP and other bycatch reduction efforts have reduced the incidental take of harbor porpoise in gillnet fisheries to below the PBR level in both 1999 and 2000, it is clear that harbor porpoise bycatch must continue to be monitored.  NMFS has documented non-compliance with HPTRP regulations that may have reduced its effectiveness, requiring additional outreach and enforcement measures.  Furthermore, fishery management measures have changed since the implementation of the HPTRP and may continue to change via the annual adjustment process in the Multispecies FMP.  It is possible that closures implemented for fish conservation will be removed when fish stocks reach their rebuilding targets, which could result in an increased risk to harbor porpoise and may require adjustment of the HPTRP.   -
        NMFS will continue to monitor bycatch levels and will adjust the HPTRP as necessary to maintain bycatch levels within the goals established by section 118 of the MMPA.  NMFS will also monitor any proposed regulations and proposed changes to existing regulations that may affect harbor porpoise bycatch and consider whether management measures need to be changed.  NMFS intends to reconvene the two Harbor Porpoise Take Reduction Teams as necessary to monitor the implementation of the HPTRP relative to MMPA goals.

          Authority:
          16 U.S.C. 1531 et seq.

          Dated: October 12, 2001.
          William T. Hogarth
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. 01-26454 Filed 10-18-01; 8:45 am]
      BILLING CODE  3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 130822745-4627-01]
        RIN 0648-BD64
        Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Atlantic Surfclam and Ocean Quahog Fishery; Information Collection

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule; reopening of comment period.

          SUMMARY:
          NMFS reopens the comment period on the proposed rule to implement an information collection program for the Atlantic surfclam and ocean quahog fishery that published on August 7, 2014. The original comment period closed on September 8, 2014. The Mid-Atlantic Fishery Management Council requested the comment period be reopened to allow for additional public comment through October 17, 2014, to be submitted after this proposed action is discussed at the upcoming Council meeting.

          DATES:
          The comment period for the proposed rule published August 7, 2014 (79 FR 46233), is reopened. Public comment must be received by October 17, 2014.

          ADDRESSES:
          You may submit comments, identified by NOAA-NMFS-2014-0088, by any of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0088, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: John K. Bullard, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on Surfclam/Ocean Quahog Information Collection.”

            Instructions: All comments received are part of the public record and will generally be posted to www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.
          NMFS will accept anonymous comments. Attachments to electronic comments will be accepted via Microsoft Word, Microsoft Excel, WordPerfect, or Adobe PDF file formats only.

          Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to the Greater Atlantic Regional Fisheries Office and by email to OIRA_Submission@omb.eop.gov or fax to (202) 395-5806.

          FOR FURTHER INFORMATION CONTACT:
          Douglas Potts, Fishery Policy Analyst, 978-281-9341.

        SUPPLEMENTARY INFORMATION:

        Background
        Section 402(a)(1) for the Magnuson-Stevens Fishery Conservation and Management Act authorizes the Secretary of Commerce to implement an information collection program if a fishery management council determines that additional information would be beneficial for developing, implementing, or revising a fishery management plan. The Mid-Atlantic Fishery Management Council requested that NMFS implement an information collection program in the Atlantic surfclam and ocean quahog individual transferable quota (ITQ) fisheries. The specific components of the requested information collection are detailed in a white paper titled, “Data Collection Recommendations for the Surfclam and Ocean Quahog Fisheries,” that was prepared by the Surfclam and Ocean Quahog Data Collection Fishery Management Action Team at the direction of the Council. The purpose of this information collection is to better identify the specific individuals who hold or control ITQ allocation in these fisheries. The Council will use the information collected to inform the development of a future management action intended to establish an excessive share cap as part of the Council's Atlantic Surfclam and Ocean Quahog Fishery Management Plan.
        On August 7, 2014, NMFS published in the Federal Register a proposed rule to implement the Council's requested information collection program with a 30-day comment period that closed on September 8, 2014 (79 FR 46233). NMFS received a request from the Council to extend the comment period until after the Council meeting on October 7-9, 2014, to allow the Council to hold a public discussion of the proposed measures. Therefore, to allow for additional public comment to be submitted after this proposed action is discussed at the Council meeting, NMFS is reopening the comment period on the proposed rule through October 17, 2014. Comments submitted during the prior comment period have been incorporated into the public record, and will be fully considered during preparation of our final determination.

          Authority:
           16 U.S.C. 1801 et seq.

          Dated: September 26, 2014.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2014-23432 Filed 10-1-14; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF ENERGY
        48 CFR Parts 923, 936 and 970
        RIN 1991-AB47
        Acquisition Regulations: Acquisition of Products Containing Recovered Materials

          AGENCY:
          Department of Energy.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          The Department of Energy (DOE) is proposing to amend its acquisition regulations to implement Executive Order 13101, dated September 14, 1998, entitled Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition.

          DATES:
          Written comments on the proposed rulemaking must be received on or before close of business January 2, 2001.

          ADDRESSES:
          Comments should be addressed to: Richard Langston, MA-51, U.S. Department of Energy, Office of Procurement and Assistance Management 1000 Independence Avenue, SW., Washington, D.C. 20585

          FOR FURTHER INFORMATION CONTACT:
          Richard Langston at (202) 586-8247 or richard.langston@pr.doe.gov.

        SUPPLEMENTARY INFORMATION:

          I. Background.
          II. Section by Section Analysis.
          III. Procedural Requirements.
          A. Review Under Executive Order 12866.
          B. Review Under Executive Order 12988.
          C. Review Under the Regulatory Flexibility Act.
          D. Review Under the Paperwork Reduction Act.
          E. Review Under the National Environmental Policy Act.
          F. Review Under Executive Order 13132.
          G. Review Under the Unfunded Mandates Reform Act of 1995.
          H. Review Under the Treasury and General Government Appropriations Act, 1999.

        I. Background
        The purpose of this proposed rulemaking is to provide additional guidance regarding Executive Order 13101, dated September 14, 1998 (63 FR 49641), entitled Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition which superceded Executive Order 12873, dated October 20, 1993, Federal Acquisition, Recycling, and Waste Prevention.
        A rule has been proposed to amend the Department of Energy Acquisition Regulation to streamline policies, procedures, provisions, and clauses contained in Part 970 relative to the Department's management and operating contracts (65 FR 13418, March 13, 2000). It may be necessary to revise certain of the citations in this proposed rule if the other action is finalized prior to this action being finalized.
        II. Section-by-Section Analysis
        The Department of Energy proposes to amend the regulation as follows:
        1. The authority citation is revised.
        2. A new section 923.405, Procedures, is being added to note that the percentage of recycled content included in the EPA Recovered Materials Advisory Notice (RMAN) is to be specified in the solicitation as the minimum recycled content.
        3. Section 923.471, Policy, is being deleted as unnecessarily duplicative of FAR coverage at 23.403.
        4. A new section 923.705, Contract clause, will be added to supplement the FAR instruction concerning the clause at 52.223-10. It specifies that the clause is to be used in prime contracts for support services performed at Government-owned or Government-leased facilities and in contracts for operation of a Government-owned or Government-leased facility.
        5. A new 936.601-3 is added to supplement FAR coverage regarding Architect-Engineer (A-E) work statement preparation.
        6. Section 936.602-70 is modified by the addition of a new paragraph (a)(8) regarding consideration of energy efficiency, pollution prevention, waste reduction, and the use of recovered materials when performing A-E evaluations.
        7. Section 970.2304 is being updated to include reference to 48 CFR (FAR) 23.4 and 23.7 and revised to provide guidance concerning circumstances under which the clause at 970.5204-39 should be included in subcontracts.
        8. The clause at 970.5204-39 is being updated and revised to include guidance concerning circumstances under which the clause should be included in subcontracts.
        III. Procedural Requirements
        A. Review Under Executive Order 12866
        Today's regulatory action has been determined not to be a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” (58 FR 51735, October 4, 1993). Accordingly, this proposed rule is not subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB).
        B. Review Under Executive Order 12988
        With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, these proposed regulations meet the relevant standards of Executive Order 12988.
        C. Review Under the Regulatory Flexibility Act

        This proposed rule has been reviewed under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., which requires preparation of an initial regulatory flexibility analysis for any rule that must be proposed for public comment and that is likely to have significant economic impact on a substantial number of small entities. The proposed rule, which would implement provisions of Executive Order 13101 concerning use of recycled materials, would not have a significant economic impact on small entities. While rule requirements may flow down to subcontractors in certain circumstances, the costs of compliance are not estimated to be large and, in any event, would be reimbursable expenses under the contract or subcontract.
        Accordingly, DOE certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities, and, therefore, no regulatory flexibility analysis has been prepared.
        D. Review Under the Paperwork Reduction Act
        Information collection or record keeping requirements contained in this rulemaking have been previously cleared under Office of Management and Budget paperwork clearance package Number 1910-0300. There are no new burdens imposed by this rule.
        E. Review Under the National Environmental Policy Act

        DOE has concluded that promulgation of this proposed rule falls into a class of actions which would not individually or cumulatively have significant impact on the human environment, as determined by DOE's regulations (10 CFR part 1021, subpart D) implementing the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). Specifically, this proposed rule is categorically excluded from NEPA review because the amendments to the DEAR would be strictly procedural (categorical exclusion A6). Therefore, this proposed rule does not require an environmental impact statement or environmental assessment pursuant to NEPA.
        F. Review Under Executive Order 13132
        Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined today's proposed rule and has determined that it does not preempt State law and does 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. No further action is required by Executive Order 13132.
        G. Review Under the Unfunded Mandates Reform Act of 1995
        The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires a Federal agency to perform a detailed assessment of costs and benefits of any rule imposing a Federal Mandate with costs to State, local or tribal governments, or to the private sector, of $100 million or more. This proposed rulemaking would only affect private sector entities, and the impact is less than $100 million.
        H. Review Under the Treasury and General Government Appropriations Act, 1999
        Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule or policy that may affect family well-being. This rulemaking will have no impact on family well being.

          List of Subjects in 48 CFR Parts 923, 936 and 970
          Government procurement.

          Issued in Washington, D.C. on November 16, 2000.
          T. J. Glauthier,
          Deputy Secretary of Energy.

        For the reasons set out in the preamble, Chapter 9 of Title 48 of the Code of Federal Regulations is proposed to be amended as set forth below.
        1. The authority citations for parts 923 and 936 are revised to read as follows:

          Authority:

          Atomic Energy Act of 1954 (42 U.S.C. 2201); Department of Energy Organization Act (42 U.S.C. 7101, et seq.); National Nuclear Security Administration Act (50 U.S.C. 2401 et seq.).

          PART 923—ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
          2. Section 923.405(e) is added to read as follows:

            § 923.405
            Procedures [DOE supplemental coverage—paragraph (e)].
            (e) When acquiring items designated in the EPA Comprehensive Procurement Guidelines, the EPA recommended percentage of recovered/recycled content contained in the Recovered Materials Advisory Notice (RMAN) shall be specified in the solicitation as the minimum percentage of recycled content. Acquisition of products with recycled contents exceeding the RMAN recommended content is encouraged if their performance is acceptable.

            § 923.471
            [Removed and Reserved].
            3. Section 923.471 is removed and reserved.
            4. Subpart 923.7 is added to read as follows:

            Subpart 923.7—Contracting for Environmentally Preferable and Energy-Efficient Products and Services

              § 923.705
              Contract clause.
              Pursuant to 48 CFR (FAR) 23.704, the clause at 48 CFR (FAR) 52.223-10 should be included in solicitations and contracts for prime support service awards being performed at Government-owned or Government-leased facilities and in contracts for operation of a Government-owned or Government-leased facility.

          PART 936—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
          5. Section 936.601-3 is added to read as follows:

            § 936.601-3
            Applicable contract procedures.
            Executive Order 13123, Section 403(d), requires agencies to apply sustainable design principles to the siting, design, and construction of new facilities. Contracting activities shall optimize life-cycle costs, recycled materials, pollution prevention, and other environmental and energy efficiency considerations associated with the construction, life-cycle operation, and decommissioning of their facilities. Contracting activities shall consider using Energy Savings Performance Contracts or utility energy-efficiency service contracts to aid them in constructing sustainable design buildings.
            6. Section 936.602-70 is amended by adding paragraph (a)(8) to read as follows:

            § 936.602-70
            DOE selection criteria.

            (a) * * *
            (8) In addition to these requirements, consider the Architect Engineer firms' experience in energy efficiency, pollution prevention, waste reduction, and the use of recovered materials and other criteria at FAR 36.602-1.

          PART 970—MANAGEMENT AND OPERATING CONTRACTS
          7. The authority citation for part 970 continues to read as follows:

            Authority:

            Atomic Energy Act of 1954 (42 U.S.C. 2201); Department of Energy Organization Act (42 U.S.C. 7101, et seq.); National Nuclear Security Administration Act (50 U.S.C. 2401 et seq.).

            Subpart 970.23—Environment, Conservation, Occupational Safety, and Drug-Free Workplace

          8. Sections 970.2304, 970.2304-1, and 970.2304-2 are revised to read as follows:

            § 970.2304
            Use of recovered/recycled materials.

            § 970.2304-1
            General.
            The policy for the acquisition and use of EPA designated items, i.e. items with recovered/recycled content, is set forth at 48 CFR (FAR) 23.4—Use of Recovered Materials as supplemented by 48 CFR (DEAR) 923.405(e) and by 48 CFR (FAR) 23.705, Application to Government-owned or Government-leased facilities, and 48 CFR (FAR) 23.706, Contract clause, as supplemented by 48 CFR (DEAR) 923.706.

            § 970.2304-2
            Contract clause.

            The contracting officer shall insert the clause at 48 CFR (FAR) 52.223-10, Waste Reduction Program, and the clause at 48 CFR (DEAR) 970.5204-39, Affirmative Procurement Program, in contracts for the management of DOE facilities including national laboratories. If the contractor subcontracts a significant portion of the logistical operation of the Government facility, or subcontracts for construction or remodeling at the facility, which includes the acquisition of items designated in EPA's Comprehensive Procurement Guidelines that Federal agencies and their contractors are to acquire with recovered/recycled content, the subcontract shall contain the clause at 48 CFR (DEAR) 970.5204-39. Examples of such subcontracts would be operation of the facility supply function, construction or remodeling at the facility, or operation of the facility motor vehicle fleet.

            Subpart 970.52—Contract Clauses for Management and Operating Contracts

          9. Section 970.5204-39 is revised to read as follows:

            § 970.5204-39
            Affirmative procurement program.
            As prescribed in 48 CFR (DEAR) 970.2304-2, insert the following clause in contracts for the management of DOE facilities, including national laboratories.

              Affirmative Procurement Program (xxx 2000)
              (a) In the performance of this contract, the Contractor shall comply with the requirements of the U.S. Department of Energy Affirmative Procurement Program Guidance which is available on the Internet.
              (b) In complying with the requirements of paragraph (a) of this clause, the Contractor shall coordinate its activities with the DOE Recycling Coordinator. Reports required by paragraph (c) of this clause shall be submitted through the DOE Recycling Coordinator.
              (c) The contractor shall prepare and submit reports on matters related to the acquisition of items designated in EPA's Comprehensive Procurement Guidelines that Federal agencies and their contractors are to procure with recovered/recycled content at the conclusion of each fiscal year.
              (d) If the contractor subcontracts a significant portion of the logistical operation of the Government facility or subcontracts for construction or remodeling at the facility which includes the acquisition of items designated in EPA's Comprehensive Procurement Guidelines that Federal agencies and their contractors are to acquire with recovered/recycled content, the subcontract shall contain the clause at 48 CFR (DEAR) 970.5204-39. Examples of such a subcontract would be operation of the facility supply function, construction or remodeling at the facility, or operation of the facility motor vehicle fleet.
              (e) When this clause is used in a subcontract, the word “contractor” will be understood to mean “subcontractor” and the term “DOE Recycling Coordinator” will be understood to mean “Contractor Recycling Coordinator.”

      [FR Doc. 00-30313 Filed 11-29-00; 8:45 am]
      BILLING CODE 6450-01-P


        DEPARTMENT OF TRANSPORTATION
        Office of the Secretary
        49 CFR Part 40
        [Docket OST-2002-13435]
        RIN 2015-AD14
        Drug and Alcohol Management Information System Reporting

          AGENCY:
          Office of the Secretary, DOT.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          The Department of Transportation's Office of Drug and Alcohol Policy and Compliance (ODAPC) proposes to revise the Management Information System (MIS) forms currently used within six U.S. Department of Transportation (DOT) operating administrations (OA) for submission of annual drug and alcohol program data. These OAs are: Federal Motor Carrier Safety Administration (FMCSA); Federal Aviation Administration (FAA); Federal Transit Administration (FTA); Federal Railroad Administration (FRA); Research and Special Programs Administration (RSPA); and the United States Coast Guard (USCG). The Department proposes to streamline the annual reporting of drug and alcohol program data to OAs through use of a one-page MIS data collection form. The Department desires to standardize across the OAs the information collected and to reduce the amount of data reported by transportation employers. If an OA intends to require supplemental data, the OA will address those issues separately.

          DATES:
          The Docket Office must receive comments by November 14, 2002. We will consider late-filed documents to the extent practicable.

          ADDRESSES:
          To ensure that you do not duplicate your docket submissions, please submit them by only one of the following means:
          (1) By mail to the Docket Management Facility (SVC-124), U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. [It is important to note that because of current security procedures affecting the U.S. Mail, other means (e.g., FedEx, UPS) may be faster];
          (2) By delivery to room PL-401 on the Plaza Level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329;
          (3) By fax to the Docket Management Facility at 202-493-2251; or,

          (4) By electronic means through the Web site for the Docket Management System at: http://dms.dot.gov.

          The Docket Management Facility maintains the public docket for this rulemaking. Comments to the docket will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The public may also review docketed comments electronically at: http://dms.dot.gov.

          FOR FURTHER INFORMATION CONTACT:

          Jim L. Swart, Drug and Alcohol Policy Advisor at 202-366-3784 (voice) 202-366-3897 (fax) or at: jim.swart@ost.dot.gov (e-mail).

        SUPPLEMENTARY INFORMATION:
        Background and Purpose
        Six OAs collect drug and alcohol program data from their regulated employers on an annual basis. Employers compile this data on MIS forms and each form is OA specific. In fact, more than twelve MIS data collection forms currently exist within the OAs. The Department believes that data collection and entry will be greatly simplified for transportation employers and the Department if a single form is utilized throughout the transportation industries and the OAs.
        All drug and alcohol testing conducted under DOT authority uses a standard form for drug testing—Federal Drug Testing Custody and Control Form—and a standard form for alcohol testing—DOT Alcohol Testing Form. In essence, use of standard testing forms should limit MIS reporting to a finite number of data elements. Therefore, a core set of data elements will make up the new MIS form—a ONE-DOT MIS form—which all transportation employers will complete, as appropriate, for their company and the OA regulating them.
        This MIS form will simplify and streamline data recording for transportation employers and will require employers to enter less data. In addition, because the proposed form contains fewer data elements and is on a one-page format, it can be more easily entered and processed via electronically based systems. As an added benefit, there will be a single set of MIS instructions for all transportation employers, regardless of OA.

        However, not every OA expects information for all potential data elements (e.g., RSPA does not conduct random alcohol testing), and some data elements may be collected through some means other than MIS (e.g., USCG receives alcohol data immediately following each post-accident testing event). The form's instructions will highlight some of those peculiar testing differences, and companies not required to conduct or report certain types of tests will simply leave those sections blank. For instance, because USCG wants no alcohol testing data on the MIS form, USCG-regulated employers will leave blank Section IV of the form. In addition, when no testing was done or no results were received for particular data elements, employers will leave those items blank rather than inserting zeros (as is now required).
        On June 6, 2002, President Bush announced his proposal to create a Cabinet-level homeland security department. Inside this new department, the President proposes to put several agencies, including the USCG. The President urged Congress to pass legislation to create the new Department of Homeland Security. This process may take some time. As a result, if you have USCG ties and MIS interests, please submit your comments to this NPRM. We will consider congressional and presidential action regarding the USCG and homeland security in the final rule.
        Discussion of Proposed Rule

        The ODAPC and the OAs propose to revise the MIS reporting requirements to standardize the collection of data for the OAs. The proposed rulemaking would impose a few new requirements for data collection; specifically, data related to information associated with the revised Federal Drug Testing Custody and Control Form developed by the Department of Health and Human Services (65 FR 39155, June 23, 2000). However, the overall amount of required data will be less than that required currently. The Department also intends to place the MIS form and instructions for completing it into Part 40. We propose to have the forms and instructions removed from all OA regulations.
        As stated earlier, many data elements will no longer be part of the MIS form. OAs have decided that some information items required on previous MIS forms were available in other formats, had become superfluous, or were items obtainable during inspections, reviews and audits. The following represents a listing for each OA of most of the data elements we are proposing to eliminate:
        FMCSA
        1. Number of persons denied a position following a positive drug test.
        2. Number of employees returned to duty following a refusal or positive drug test.
        3. Supervisor initial drug training data.
        4. Number of employees denied a position following an alcohol test of 0.04 or greater.
        5. Number of employees returned to duty after engaging in alcohol misuse.
        6. Number of employees having both a positive drug test and an alcohol test of 0.04 or greater when both tests were administered at the same time.
        7. Actions taken for alcohol violations other than alcohol testing.
        8. Supervisor initial alcohol training data.
        FAA
        1. Number of employees returned to duty after having failed or refused a drug test.
        2. Actions taken for drug test refusals.
        3. Number of persons denied employment for a positive drug test.
        4. Actions taken for positive drug results.
        5. Employee initial drug training data.
        6. Supervisor initial drug training data.
        7. Supervisor recurrent drug training data.
        8. Number of persons denied a position for an alcohol test 0.04 or greater.
        9. Number of employees returned to duty after engaging in alcohol misuse.
        10. Actions taken for alcohol regulation violations.
        11. Number of employees having both a positive drug test and an alcohol test of 0.04 or greater when both tests were administered at the same time.
        12. Number of other violations of the alcohol regulation.
        13. Actions taken for refusals to take an alcohol test.
        14. Supervisor alcohol training data.
        FTA
        1. Number of persons denied a position for alcohol results 0.04 or greater.
        2. Number of accidents (noted as fatal and non-fatal) with alcohol results 0.04 or greater.
        3. Number of fatalities from accidents resulting in alcohol results 0.04 or greater.
        4. Number of employees returned to duty following an alcohol violation.
        5. Number of employees having both a positive drug test and an alcohol test of 0.04 or greater when both tests were administered at the same time.
        6. Actions taken for other alcohol rule violations.
        7. Supervisor alcohol training data.
        8. Number of persons denied a position for positive drug test results.
        9. Number of accidents (noted as fatal and non-fatal) with positive drug test results.
        10. Number of fatalities from accidents resulting in positive drug tests results.
        11. Number of persons returned to duty following a positive drug test or refusal result.
        12. Employee drug education data.
        13. Supervisor drug training data.
        14. Funding source information.
        FRA
        1. Number of applicants/transfers denied employment/transfer for a positive drug test.
        2. Number of employees returned to duty after having failed or refused a drug test.
        3. Detailed breakouts of for-cause drug and alcohol testing.
        4. Non-qualifying accident drug testing data.
        5. Supervisor drug training data.
        6. Number of applicants/transfers denied employment/transfer for alcohol results 0.04 or greater.
        7. Number of employees returned to duty after engaging in alcohol misuse.
        8. Supervisor alcohol training data.
        USCG
        1. Number of persons denied a position for a positive drug test.
        2. Number of employees returned to duty following a drug violation.
        3. Employee drug and alcohol training data.
        4. Supervisor drug and alcohol training data.
        5. Post-accident alcohol testing data.
        6. Reasonable cause alcohol testing data.
        RSPA
        1. Number of employees returned to duty after engaging in alcohol misuse.
        2. Actions taken for alcohol test results equal to or greater than 0.04.
        3. Number of other alcohol rule violations and actions taken for them.
        4. Actions taken for alcohol test refusals.
        5. Supervisor initial alcohol training data.
        6. Number of persons denied a position following a positive drug test.
        7. Number of employees returned to duty following a positive or refusal drug test.
        8. Actions taken for positive drug tests.
        9. Actions taken for drug test refusals.
        10. Supervisor initial drug training data.
        The Department proposes also to count collections differently than under the old MIS regimen. Under the old MIS counting method a drug collection was considered to be a testing event that resulted in a negative, positive, or cancellation. Refusals to test—no matter the reason for the refusal—were not considered appropriate for inclusion. Despite the instruction to include no refusals, we know that many companies included those that were the result of adulterated or substituted results that were verified by the MRO as refusals. Still other companies counted these types of refusals as well as refusal events for which no urine was sent to laboratories for testing (e.g., employee failed to show-up at the collection site; employee left the collection site before urine had been collected).
        Similarly, in determining if companies were conducting random testing at the appropriate established annual rates, some OAs did not count refusals; some counted all refusals; and still others counted only refusals reported by the MRO (as a result of adulteration or substitution) toward satisfaction of the random rate requirement. Furthermore, in calculating the annual random rates for testing, all OA rules say the following will be factored for the positive rate: number of random positives plus number of random refusals divided by number of random tests plus number of random refusals. This means that some cancelled random tests and random refusals were already in the random test numbers before the number of random refusals was added to the total.

        To clear up these discrepancies, the Department proposes to count the number of specimens collected as the number of testing events resulting in negative, positive, and refusal to test results no matter the reason for the refusal. We will add all refusals because the OAs factor refusals into the annual random testing rates. We will not add cancelled test results to the mix because § 40.207(b) says, “* * * a cancelled test does not count toward compliance with DOT requirements (e.g., being applied toward the number of tests needed to meet the employer's minimum random testing rate).” Counting in this manner will enable many of the columns and rows of the MIS form to add-up.
        In short, we would have employers continue to exclude cancelled tests and blind tests as testing events. We propose to instruct employers to include all refusals as testing events. After all, no matter how the refusal occurred, a refusal is a valid and final result. A quiet benefit would be that MIS blocks could add up: The number of testing events will equal the number of negatives plus positives for one or more drugs plus refusals (with types of refusals broken out). Invalid test results are always cancelled and would not be included. However, those invalid results requiring a subsequent directly observed collection would simply be considered another collection that will have a final result.
        In addition, annual random testing rates would be determined using more accurate counts because no cancelled test would be mistakenly included and no refusals would be factored twice in the total. OA inspectors and auditors would count all refusals (e.g., be they from an adulterated specimen result or from shy bladder evaluation with no medical condition) as satisfying a company's meeting their random testing rate. After all, the testing event had a valid result (e.g., it was not from a blind specimen; it was not a cancelled result). In short, the employee was selected for testing and the test result was negative, positive, or refusal to test.
        For cancellations requiring the employee to go in for a second test, the test that is cancelled will not count. However, the result of the subsequent recollection will count, provided that it too is not cancelled. These include: Invalid test cancellations requiring the employee to go in for an observed collection; split specimen cancellations requiring the employee to go in for an observed collection; and cancellations requiring the employee to go in for another collection because a negative result is needed (for pre-employment; return to duty; and follow-up).
        In addition, if more than one collection is sent to the lab during one testing event, both will count as one collection: These include: Negative dilute specimens when the employee goes in for a second collection per employee policy [the result of the second test is the result of record]; and observed collections requiring both the original collection and the observed collection be sent to the laboratory (e.g., specimen out of temperature range) (the result requiring the most stringent consequence will ultimately be the result of record).
        The Department is also seeking to clear up the discrepancies between OAs regarding how their regulated companies are to determine the total number of employees against which the annual random rate applies. Some OAs tell employers to count the number of covered employees working at the start of the calendar year; some OAs direct employers to count the total number of covered employees that worked for the company within the year; and still others advise employers to count the average number of employees on a monthly or quarterly basis.
        We propose to have employers add the total number of covered employees eligible for random testing in each random testing selection period for the year and dividing that total by the number of random testing periods. For instance, a company conducting random testing quarterly would need to add the total of covered employees they had in the random pool when each selection was made; then divide this number by 4 to obtain the yearly average number of covered employees. (As an example, if Company A had 1500 employees in the first quarter random pool, 2250 in the second quarter, 2750 in the third quarter; and 1500 in the fourth quarter; 1500 + 2250 + 2750 + 1500 = 8000; 8000/4 = 2000; the total number of covered employees for the year would be reported as, “2000”.)

        Companies (and their contractors, as applicable) will continue to submit the MIS reports in accordance with requirements (e.g., dates for submission; selection of companies required to submit, etc.) that will continue to be in each OA rule. Likewise, OA rules will continue to address the manner (e.g., mail; CD; electronic transmission) and locations they wish the completed forms sent.
        It is important to note that MIS alcohol testing data would reflect all these proposals made for drug testing data. Refusals will count as testing events; cancelled tests will not; and random pool averages will determine the number of employees against which the annual testing rate applies.
        The Department is currently working toward an electronic MIS form capable of Internet submission. Each form would be OA specific and would not have extraneous items showing (for example, the USCG-specific form would not include an alcohol testing section; the RSPA-specific form would not show an alcohol random testing category). Additionally, the system would bring to the attention of the person completing the form any items that did not accurately compute mathematically. Finally, employee categories would only be those for the specific employer. We seek comment about this type of system, suggestions for how it might work, and concerns for problems in implementing such a system.
        Regulatory Analyses and Notices
        This rule is not a significant rule for purposes of Executive Order 12866 or the DOT's regulatory policies and procedures. Nor is the rule an economically significant regulation. It is a reworking of existing requirements; it imposes no new mandates; and it will not create any new costs. In fact, the proposed rule will serve to reduce requirements and costs.
        This NPRM does not have sufficient Federalism impact to warrant a Federalism assessment under Executive Order 13132. With respect to the Regulatory Flexibility Act, the certifies that, if adopted, this rule would not have a significant economic impact on a substantial number of small entities, so a Regulatory Flexibility analysis has not been prepared. Even though this rule might affect a large number of small entities, we do not expect the new MIS requirements to have a significant economic impact on anyone.
        This rulemaking involves a “610 Review” under the Small Business Regulatory Enforcement Fairness Act. We believe the changes recommended by the rulemaking should be particularly helpful to small, regulated employers.
        The proposed rule also contains information collection requirements. As required by the Paperwork Reduction Act of 1995, (the PRA, 44 U.S.C. 3507(d)), the Department will submit these requirements to the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB) for review, as required under the Paperwork Reduction Act.

        As noted elsewhere in this preamble, the proposal would amend Part 40 to include a new format and a new set of instructions for the MIS form. This single form would be used across six DOT OAs rather than the multiple forms with multiple instructions currently in use. The form's data elements would be reduced significantly as well.
        Completing an MIS report requires a company to collect and compile drug and alcohol testing data generated throughout the year by that company's drug and alcohol testing program and placing some of that data onto the form. Certainly, the more complex a company's testing program set-up, the more complex assembling needed data becomes. Companies having decentralized program locations may have to draw information from a variety of localized programs. Companies with a number of subsidiaries may have large amounts of data to compile and authenticate. In addition, companies failing to regularly update and bring together their testing data may find themselves in positions of having to do so in a hurried manner at the end of the year. Also, companies lacking computerization of data capabilities may have to use the “stubby pencil-method” of data entry.
        Because MIS reporting has been part of the DOT testing equation for more than half a decade, many companies have become experienced in and have applied sound business sense to putting the report together. Many companies update their drug and alcohol program data on a regular, throughout-the-year basis rather than doing so at the last minute. Most companies require their localized programs, subsidiaries, and contractors to regularly provide program updates rather than authenticate data at the end of the year. Many companies utilize computer databases rather than “pen-and-ink” data entries. Still other companies prefer to have data entry provided as part of their TPA's contracted services.
        Whatever the case, the Department does not require any particular management style of program data: We simply require that the data be accurate; that it be in a system that has controlled access; that it be readily auditable; and that specific data be included in MIS reports when they are required or requested by the OAs. The Department would prefer that companies update their drug and alcohol program data throughout the year; require their divisions, subsidiaries, and contractors to report their data regularly to them; and computerize their data-entry methodologies. However, we do not mandate these actions even though we think they are all preferable to end-of-the-year company scrambles to complete MIS forms.
        The Department believes that requiring less data entry on MIS forms and having only one form throughout the transportation industries will make data gathering and compilation simpler. For instance, no longer will employers need to provide employee and supervisor training data, violation consequence data, and non-Part 40 violation data (among other entries). Furthermore, the single-format MIS form replaces the E-Z Drug form, the E-Z Alcohol form, the Long-Drug form, and the Long-Alcohol form, the format of which were different for each OA. Therefore, employers subject to more than one OA rule will not have to navigate their ways through multiple MIS formats.
        These represent important steps in reducing the amount of time needed to compile data for MIS purposes—no matter of how a company chooses to manage their drug and alcohol testing data. The Department believes the simplicity of the form will result in another significant time saving action for employers.
        OA estimates show that 5,948 companies submitted to DOT 13,542 MIS forms during one recent data-reporting year; and the time it took to fill out the forms was 18,411 hours. For that same data year, companies submitted an estimated 7,921 E-Z forms and 5,621 Long forms. (Based upon OA estimates, the old E-Z forms took 30 minutes (FMCSA, FTA, FRA, and RSPA) to 1 hour (FAA) to complete; the long forms, 2.5 hours each to complete. USCG did not authorize use of an E-Z form.)
        Estimates for the new MIS form indicate that, if the new form had been operational, these 5,948 companies would have sent 6,300 MIS reports to DOT and the time to complete them would have been 9,450 hours. Therefore, we foresee nearly 9,000 hours saved per year in filling out the new MIS form as opposed to completing the old multiple MIS forms. (Based upon industry and OA estimates, we have concluded that the new MIS report will take between 45 minutes and 1.5 hours to complete. We have chosen, for this paragraph, to use the highest industry and OA estimate—1.5 hours. We estimate that slightly over 300 companies report to more than one OA.)

        Individuals and organizations may submit comments on the information collection elements of the NPRM by November 14, 2002 and should submit them to the DOT docket specified at the beginning of the NPRM. According to OMB's regulations implementing the PRA (5 CFR 1320.8(b)(2)(vi)), an agency may not conduct or sponsor, and a person need not respond to a collection of information unless it displays a currently valid OMB control number. The OMB control number for this information will be published in the Federal Register after OMB approves it.
        A number of other Executive Orders can affect rulemakings. These include Executive Orders 13084 (Consultation and Coordination with Indian Tribal Governments), 12988 (Civil Justice Reform), 12875 (Enhancing the Intergovernmental Partnership), 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights), 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations), 13045 (Protection of Children from Environmental Health Risks and Safety Risks), and 12880 (Implementation of North American Free Trade Agreement). We have considered these Executive Orders in the context of this NPRM, and we believe that the proposed rule does not directly affect matters that the Executive Orders cover.
        We have prepared this rulemaking in accordance with the Presidential Directive on Plain Language.

          List of Subjects in 49 CFR Part 40
          Administrative practice and procedure, Alcohol abuse, Alcohol testing, Drug testing, Laboratories, Reporting and recordkeeping requirements, Safety, Transportation.

          Issued this 20th day of September, 2002, at Washington, DC.
          Norman Y. Mineta,
          Secretary of Transportation.

        For reasons set forth in the preamble, the Department of Transportation proposes to amend part 40 of Title 49, Code of Federal Regulations, as follows:
        1. The authority citation for 49 CFR part 40 continues to read as follows:

          Authority:
          49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 45101 et seq.

        2. Add a new § 40.26 to read as follows:

          § 40.26
          What form must an employer use to report Management Information System (MIS) data to a DOT agency?
          As an employer, when you are required to report MIS data to a DOT agency, you must use the form and instructions at Appendix H to Part 40.
          3. Add a new Appendix H to read as follows:

            Appendix H to Part 40—DOT Drug and Alcohol Testing Management Information System (MIS) Data Collection Form
            The following form and instructions must be used when an employer is required to report MIS data to a DOT agency.

            BILLING CODE 4910-62-P

              EP30SE02.056

            BILLING CODE 4910-62-C

            Department of Transportation Drug and Alcohol Testing MIS Data Collection Form Instruction Sheet
            This MIS form is made-up of four sections: employer information; covered employee information; drug testing data; and alcohol testing data. The employer information needs only to be provided once per submission. However, you must submit a separate page of data for each employee category for which you report testing data. If you are preparing reports for more than one DOT Operating Administration (OA), then you must submit OA-specific forms.
            Please type or print entries legibly in black ink.

              TIP—Read the entire instructions before starting. Please note that USCG-regulated employers do not report alcohol test results on the MIS form.
            Calendar Year Covered by this Report: Enter the appropriate year.
            Section I. Employer
            1. Enter your company's name, to include when applicable, your “doing business as” name; current address, city, state, and zip code; and an e-mail address, if available.
            2. Enter the printed name, signature, and complete telephone number of the company official certifying the accuracy of the report and the date that person certified the report as complete.
            3. If someone other than the certifying official completed the MIS form, enter that person's name on the appropriate line provided.
            4. Operating Administration Information:
            a. Check the box next to the OA for which you are completing this MIS form. Again, if you are submitting to multiple OAs, you must use separate forms for each OA.
            b. If you are submitting the form for RSPA, check the additional box(s) indicating your type of operation.
            c. If you are completing the form for FRA, enter the number of observed/documented Part 219 “Rule G” Observations for covered employees.
            d. If you are completing the form for FAA, enter your FAA Certificate Number and FAA Antidrug Plan/Registration Number, when applicable.
            e. If you are submitting the form for FMCSA, enter your FMCSA DOT Number, as appropriate. In addition, you must indicate whether you are an owner-operator.
            f. If you are submitting the form for USCG, enter the vessel ID number. If there is more than one number, enter the numbers separately.
            Section II. Covered Employees
            1. In Box II-A, enter the total number of covered employees who work for your company. Then enter, in Box II-B, the total number of employee categories that number represents.

            [For instance, if you are submitting the information for the FRA and you have 20,000 covered employees performing duties in each of the FRA-covered service areas—you would enter “20,000” in the first box (II-A) and “5” in the second box (II-B), because FRA has five safety-sensitive employee categories.]

              TIP—To calculate the total number of covered employees, add the total number of covered employees eligible for testing during each random testing selection period for the year and divide that total by the number of random testing periods. For instance, a company conducting random testing quarterly needs to add the total of covered employees they had in the random pool when each selection was made; then divide this number by 4 to obtain the yearly average number of covered employees. It is extremely important that you place all eligible employees into these random pools. [As an example, if Company A had 1500 employees in the first quarter random pool, 2250 in the second quarter, 2750 in the third quarter; and 1500 in the fourth quarter; 1500 + 2250 + 2750 + 1500 = 8000; 8000 / 4 = 2000; the total number of covered employees for the year would be reported as,'2000'.]

            2. If you are reporting multiple employee categories, enter the specific employee category in box II-C; and provide the number of employees in that specific category.

            [For example, you are submitting data to the FTA and you have 2000 covered employees. You have 1750 personnel performing revenue vehicle operation and the remaining 250 are performing revenue vehicle and equipment maintenance. When you provide vehicle operation information, you would enter “Revenue Vehicle Operation” in the first II-C box and “1750” in the second II-C box. When you provide data on the maintenance personnel, you would enter “Revenue Vehicle and Equipment Maintenance” in the first II-C box and “250” in the second II-C box.]

              TIP—A separate form for each employee category must be submitted. You may do this by filling out a single MIS form through Section II-B and then make one copy for each additional employee category you are reporting. [For instance, if you are submitting the MIS form for the FMCSA, you need only submit one form for all FMCSA covered employees working for you—your only category of employees is “driver.” If you are reporting testing data to the FAA and you employ only flight crewmembers, flight attendants, and aircraft maintenance workers, you need to complete one form each for category—three forms in all. If you are reporting to FAA and have all FAA categories of covered employees, you must submit eight forms.]
            Here is a full listing of OA employee categories:

            FMCSA (one category): Driver
            FAA (eight categories): Flight Crewmember; Flight Attendant; Flight Instructor; Aircraft Dispatcher; Aircraft Maintenance; Ground Security Coordinator; Aviation Screener; Air Traffic Controller
            FTA (six categories): Revenue Vehicle Operation; Revenue Vehicle and Equipment Maintenance; Revenue Vehicle Control/Dispatch; CDL/Non-Revenue Vehicle; Armed Security Personnel
            FRA (five categories): Engine Service; Train Service; Dispatcher/Operation; Signal Service; Other [Includes yardmasters, hostlers (non-engineer craft), bridge tenders; switch tenders, and other miscellaneous employees performing 49 CFR 228.5(c) defined covered service.]
            RSPA (one category): Operation/Maintenance/Emergency Response
            USCG (one category): Crewmember
            Section III. Drug Testing Data
            This section summarizes the drug testing results for all covered employees (to include applicants). The table in this section requires drug test data by test type and by result. The categories of test types are: Pre-Employment; Random; Post-Accident; Reasonable Suspicion; Reasonable Cause; Return-to-Duty, and Follow-up.
            The categories of type of results are: Total Number of Test Results [excluding cancelled tests and blind specimens]; Verified Negative; Verified Positive; Positive for Marijuana; Positive for Cocaine; Positive for PCP; Positive for Opiates; Positive for Amphetamines; Refusals due to Adulterated, Substituted, Shy Bladder with No Medical Explanation, and Other Refusals to Submit to Testing; and Cancelled Results.

              TIP—Do not enter data on blind specimens submitted to laboratories. Be sure to enter all “pre-employment” testing data regardless of whether an applicant was hired or not. Make note of the fact that FMCSA and FTA do not authorize “reasonable cause” drug testing; that FAA, RSPA, and USCG do not authorize “reasonable suspicion” drug testing; but that FRA authorizes both. For USCG, enter any “Serious Marine Incident” testing in the “Post-Accident” row. For FRA, do not enter “post accident” data (the FRA does not collect this data on the MIS form). Finally, rather than enter “0” (zero) for any row or column in which there were no results, just leave that area blank.

            Section III, Column 1. Total Number of Test Results—This column requires a count of the total number of test results in each testing category during the entire reporting year. Count the number of test results as the number of testing events resulting in negative, positive, and refusal results. Do not count cancelled tests and blind specimens in this total.

            [For example, a company that conducted fifty pre-employment tests would enter “50” on the Pre-employment Row. If it conducted one hundred random tests, “100” would be entered on the Random Row. If that company did no post-accident, reasonable suspicion, reasonable cause, return-to-duty, or follow-up tests, those categories will be left blank.]

            Section III, Column 2. Verified Negative Results—This column requires a count of the number of tests in each testing category that the Medical Review Officer (MRO) reported as negative. Do not count a negative-dilute result if, consequently, the employee underwent a second collection; the second test is the test of record.

            [For example, if forty-seven of the company's fifty pre-employment tests were reported negative, “47” would be entered in Column 2 on the Pre-employment Row. If ninety of the company's one hundred random test results were reported negative, “90” would be entered in Column 2 on the Random Row. Because the company did no other testing, those other categories would be left blank.]

            Section III, Column 3. Verified Positive Results—For One Or More Drugs—This column requires a count of the number of tests in each testing category that the MRO reported as positive for one or more drugs. When the MRO reports a test positive for two drugs, it would count as one positive test.

            [For example, if one of the fifty pre-employment tests was positive for two drugs, “1” would be entered in Column 3 on the Pre-employment Row. If four of the company's one hundred random test results were reported positive (three for one drug and one for two drugs), “4” would be entered in Column 3 on the Random Row.]

            Section III, Columns 4 through 8. Positive (for specific drugs)—These columns require entry of the by-drug data for which specimens were reported positive by the MRO.

            [For example, if the pre-employment positive test reported by the MRO was positive for marijuana, “1” would be entered in Column 4 on the Pre-employment Row. If three of the four positive results for random testing were reported by the MRO to be positive for marijuana, “3” would be entered in Column 4 on the Random Row. If one of the four positive results for random testing was reported positive for both PCP and opiates, “1” would be entered in Column 6 on the Random Row and “1” would be entered in Column 7 of the Random Row.]

              TIP—Column 1 should equal the sum of Columns 2, 3, 9, 10, 11, and 12. Remember you have not counted specimen results that were ultimately cancelled or were from blind specimens. So, Column 1 = Column 2 + Column 3 + Column 9 + Column 10 + Column 11 + Column 12. Certainly, double check your records to determine if your actual results count is reflective of all negative, positives, and refusal counts.

            An MRO may report that a specimen is positive for more than one drug. When that happens, to use the company example above (i.e., one random test was positive for both PCP and opiates), the positive results should be recorded in the appropriate columns—PCP and opiates in this case. There is no expectation for Columns 4 through 8 numbers to add up to the numbers in Column 3 when you report multiple positives.
            Section III, Columns 9 through 12. Refusal Results The refusal section is divided into four refusal groups—they are: Adulterated; Substituted; Shy Bladder With No Medical Explanation; and Other Refusals To Submit to Testing. The MRO reports two of these refusal types—adulterated and substituted specimen results “ because of laboratory test findings.
            When an individual does not provide enough urine at the collection site, the MRO conducts or causes to have conducted a medical evaluation to determine if there exists a medical reason for the person's inability to provide the appropriate amount of urine. If there is no medical reason to support the inability, the MRO reports the result to the employer as a refusal to test: Refusals of this type are reported in the “Shy Bladder—With No Medical Explanation” category.
            Finally, additional reasons exist for a test to be considered a refusal. Some examples are: the employee fails to report to the collection site as directed by the employer; the employee leaves the collection site without permission; the employee fails to empty his or her pockets at the collection site; the employee refuses to have a required shy bladder evaluation. Again, these are only four examples; there are more.
            Section III, Column 9. Adulterated—This column requires the count of the number of tests reported by the MRO as refusals because the specimens were adulterated.

            [For example, if one of the fifty pre-employment tests was adulterated, “1” would be entered in Column 9 of the Pre-employment Row.]

            Section III, Column 10. Substituted—This column requires the count of the number of tests reported by the MRO as refusals because the specimens were substituted.

            [For example, if one of the 100 random tests was substituted, “1” would be entered in Column 10 of the Random Row.]

            Section III, Column 11. Shy Bladder—With No Medical Explanation—This column requires the count of the number of tests reported by the MRO as being a refusal because there was no legitimate medical reason for an insufficient amount of urine.

            [For example, if one of the 100 random tests was a refusal because of shy bladder, “1” would be entered in Column 11 of the Random Row.]

            Section III, Column 12. Other Refusals To Submit To Testing—This column requires the count of refusals other than those already entered in Columns 9 through 11.

            [For example, the company entered “100” as the number of random specimens collected, however it had five employees who refused to be tested without submitting specimens: two did not show up at the collection site as directed; one refused to empty his pockets at the collection site; and two left the collection site rather than submit to a required directly observed collection. Because of these five refusal events, “5” would be entered in Column 11 of the Random Row.]

              TIP—Even though some testing events result in a refusal in which no urine was collected and sent to the laboratory, a “refusal” is still a final test result. Therefore, your overall numbers for test results (in Column 1) will equal the total number of negative tests (Column 2); positives (Column 3); and refusals (Columns 9, 10, 11, and 12). Do not worry that no urine was processed at the laboratory for some refusals; all refusals are counted as a testing event for MIS purposes and for establishing random rates.

            Section III, Column 13. Cancelled Tests—This column requires a count of the number of tests in each testing category that the MRO reported as cancelled. You must not count any cancelled tests in Column 1 or in any other column. For instance, you must not count a positive result (in Column 3) if it had ultimately been cancelled for any reason (e.g., specimen was initially reported positive, but the split failed to reconfirm).

            [For example, if a pre-employment test was reported cancelled, “1” would be entered in Column 13 on the Pre-employment Row. If three of the company's random test results were reported cancelled, “3” would be entered in Column 13 on the Random Row.]
            Section IV. Alcohol Testing Data
            This section summarizes the alcohol testing conducted for all covered employees (to include applicants). The table in this section requires alcohol test data by test type and by result. The categories of test types are: Pre-Employment; Random; Post-Accident; Reasonable Suspicion; Reasonable Cause; Return-to-Duty, and Follow-up.
            The categories of results are: Number of Screening Test Results; Screening Tests with Results Below 0.02; Screening Tests with Results 0.02 Or Greater; Number of Confirmation Test Results; Confirmation Tests with Results 0.02 through 0.039; Confirmation Tests with Results 0.04 Or Greater; Refusals due to Shy Lung with No Medical Explanation, and Other Refusals to Submit to Testing; and Cancelled Results.

              TIP—Be sure to enter all “pre-employment” testing data regardless of whether an applicant was hired or not. Of course, for most employers pre-employment alcohol testing is optional, so you may not have conducted this type of testing. Make note of the fact that FMCSA, FAA, FTA, and RSPA authorize “reasonable suspicion” but not “reasonable cause” alcohol testing; but FRA authorizes both “reasonable cause” and “reasonable suspicion” alcohol testing. RSPA does not authorize “random” testing for alcohol. Finally, rather than enter “0” (zero) for any row or column in which there were no results, just leave that area blank. Please note that USCG-regulated employers do not report alcohol test results on the MIS form: Do not fill-out Section IV if you are a USCG-regulated employer.
            Section IV, Column 1. Total Number of Screening Test Results—This column requires a count of the total number of screening test results in each testing category during the entire reporting year. Count the number of screening tests as the number of screening test events with final screening results of below 0.02, of 0.02 through 0.039, of 0.04 or greater, and all refusals. Do not count cancelled tests in this total.

            [For example, a company that conducted twenty pre-employment tests would enter “20” on the Pre-employment Row. If it conducted fifty random tests, “50” would be entered. If that company did no post-accident, reasonable suspicion, reasonable cause, return-to-duty, or follow-up tests, those categories will be left blank.]

            Section IV, Column 2. Screening Tests With Results Below 0.02—This column requires a count of the number of tests in each testing category that the BAT or STT reported as being below 0.02 on the screening test.

            [For example, if seventeen of the company's twenty pre-employment screening tests were reported as being below 0.02, “17” would be entered in Column 2 on the Pre-employment Row. If forty-four of the company's fifty random screening test results were reported as being below 0.02, “44” would be entered in Column 2 on the Random Row. Because the company did no other testing, those other categories would be left blank.]

            Section IV, Column 3. Screening Tests With Results 0.02 Or Greater—This column requires a count of the number of screening tests in each testing category that BAT or STT reported as being 0.02 or greater on the screening test.

            [For example, if one of the twenty pre-employment tests was reported as being 0.02 or greater, “1” would be entered in Column 3 on the Pre-employment Row. If four of the company's fifty random test results were reported as being 0.02 or greater, “4” would be entered in Column 3 on the Random Row.]

            Section IV, Column 4. Number of Confirmation Test Results—This column requires entry of the number of confirmation tests that were conducted by a BAT as a result of the screening tests that were found to be 0.02 or greater. In effect, all screening tests of 0.02 or greater should have resulted in confirmation tests. Ideally the number of tests in Column 3 and Column 4 should be the same. However, we know that this required confirmation test sometimes does not occur. In any case, the number of confirmation tests that were actually performed should be entered in Column 4.

            [For example, if the one pre-employment screening test reported as 0.02 or greater had a subsequent confirmation test performed by a BAT, “1” would be entered in Column 4 on the Pre-employment Row. If three of the four random screening tests that were found to be 0.02 or greater had a subsequent confirmation test performed by a BAT, “3” would be entered in Column 4 on the Random Row.]

            Section IV, Column 5. Confirmation Tests With Results 0.02 Through 0.039 ~ This column requires entry of the number of confirmation tests that were conducted by a BAT that led to results that were 0.02 through 0.039.

            [For example, if the one pre-employment confirmation test yielded a result of 0.042, Column 5 of the Pre-employment Row would be left blank. If two of the random confirmation tests yielded results of 0.03 and 0.032, “2” would be entered in Column 5 of the Random Row.]

            Section IV, Column 6. Confirmation Tests With Results 0.04 Or Greater ~ This column requires entry of the number of confirmation tests that were conducted by a BAT that led to results that were 0.04 or greater.

            [For example, because the one pre-employment confirmation test yielded a result of 0.042, “1” would be entered in Column 6 of the Pre-employment Row. If one of the random confirmation tests yielded a result of 0.04, “1” would be entered in Column 6 of the Random Row.]

              TIP—Column 1 should equal the sum of Columns 2, 3, 7, and 8. The number of screening tests results should reflect the number of screening tests you have no matter the result (below 0.02 or at or above 0.02, plus refusals to test), unless of course, the tests were ultimately cancelled. So, Column 1 = Column 2 + Column 3 + Column 7 + Column 8. Certainly, double check your records to determine if your actual screening results count is reflective of all these counts.
            There is no need to record MIS confirmation tests results below 0.02: That is why we have no column for it on the form. [If the one of the random test that screened 0.02 went to a confirmation test; and that confirmation test yielded a result below 0.02, there is no place for that confirmed result to be entered.] We assume that if a confirmation test was completed but not listed in either Column 5 or Column 6, the result was below 0.02. In addition, if the confirmation test ended up being cancelled, it should not have been included in Columns 1, 3, or 4 in the first place.
            Section IV, Columns 7 and 8. Refusal Results—The refusal section is divided into two refusal groups—they are: Shy Lung—With No Medical Explanation; and Other Refusals To Submit to Testing. When an individual does not provide enough breath at the test site, the company requires the employee to have a medical evaluation to determine if there exists a medical reason for the person's inability to provide the appropriate amount of breath. If there is no medical reason to support the inability as reported by the examining physician, the employer calls the result a refusal to test: Refusals of this type are reported in the “Shy Lung—With No Medical Explanation” category.
            Finally, additional reasons exist for a test to be considered a refusal. Some examples are: the employee fails to report to the test site as directed by the employer; the employee leaves the test site without permission; the employee fails to sign the certification at Step 2 of the ATF; the employee refuses to have a required shy lung evaluation. Again, these are only four examples; there are more.
            Section IV, Column 7. Shy Lung—With No Medical Explanation—This column requires the count of the number of tests in which there is no medical reason to support the employee's inability to provide an adequate breath as reported by the examining physician; subsequently, the employer called the result a refusal to test.

            [For example, if one of the 50 random tests was a refusal because of shy lung, “1” would be entered in Column 7 of the Random Row.]

            Section IV, Column 8. Other Refusals To Submit To Testing—This column requires the count of refusals other than those already entered in Columns 7.

            [For example, the company entered “50” as the number of random specimens collected, however it had one employee who did not show up at the testing site as directed. Because of this one refusal event, “1” would be entered in Column 8 of the Random Row.]

              TIP—Even though some testing events result in a refusal in which no breath (or saliva) was tested, there is an expectation that your overall numbers for screening tests (in Column 1) will equal the total number of screening tests with results below 0.02 (Column 2); screening tests with results 0.02 or greater (Column 3); and refusals (Columns 7 and 8). Do not worry that no breath (or saliva) was tested for some refusals; all refusals are counted as a screening test event for MIS purposes and for establishing random rates.

            Section IV, Column 9. Cancelled Tests—This column requires a count of the number of tests in each testing category that the BAT or STT reported as cancelled. Do not count any cancelled tests in Column 1 or in any other column other than Column 9. For instance, you must not count a 0.04 screening result or confirmation result in any column, other than Column 9, if the test was ultimately cancelled for some reason (e.g., a required air blank was not performed).

            [For example, if a pre-employment test was reported cancelled, “1” would be entered in Column 9 on the Pre-Employment Row. If three of the company's random test results were reported cancelled, “3” would be entered in Column 13 on the Random Row.]

      [FR Doc. 02-24718 Filed 9-27-02; 8:45 am]
      BILLING CODE 4910-62-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R05-OAR-2014-0385; FRL-9928-56-Region 5]

        Approval and Promulgation of Air Quality Implementation Plans; Ohio; Ohio PM2.5 NSR

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:

          The Environmental Protection Agency (EPA) is proposing to approve, under the Clean Air Act (CAA), revisions to Ohio's state implementation plan (SIP) as requested by the Ohio Environmental Protection Agency on June 19, 2014. The changes to the SIP include revisions related to particulate matter smaller than 2.5 micrometers (PM2.5) defining a significance level for PM2.5 for nonattainment areas, baseline for determining credit for emission offsets, location of offsetting emissions in nonattainment areas, and offset requirements. The revisions also include establishing definitions for emergency, emergency engine, publicly owned treatment works, and semi-public disposal system and incorporating minor organizational or typographical changes.

          DATES:
          Comments must be received on or before July 27, 2015.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-R05-OAR-2014-0385, by one of the following methods:
          1. www.regulations.gov: Follow the on-line instructions for submitting comments.
          2. Email: damico.genevieve@epa.gov.

          3. Fax: (312) 385-5501.
          4. Mail: Genevieve Damico, Chief, Air Permits Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
          5. Hand Delivery: Genevieve Damico, Chief, Air Permits Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

          Please see the direct final rule which is located in the Rules section of this Federal Register for detailed instructions on how to submit comments.

          FOR FURTHER INFORMATION CONTACT:

          Charmagne Ackerman, Environmental Engineer, Air Permits Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-0448, ackerman.charmagne@epa.gov.

        SUPPLEMENTARY INFORMATION:
        In the Final Rules section of this Federal Register, EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and public comments will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. 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. For additional information, see the direct final rule which is located in the Rules section of this Federal Register.

          Dated: May 19, 2015.
          Susan Hedman,
          Regional Administrator, Region 5.

      [FR Doc. 2015-15553 Filed 6-24-15; 8:45 am]
       BILLING CODE 6560-50-P