The Agricultural Marketing Act (AMA) of 1946 (7 U.S.C. 1621 et seq. ) authorizes official voluntary grading and certification on a user-fee basis of eggs, poultry, and rabbits. The AMA provides that reasonable fees be collected from users of the program services to cover, as nearly as practicable, the costs of services rendered. The AMS regularly reviews these programs to determine if fees are adequate and if costs are reasonable.

The AMS regularly reviews these programs to determine if fees are adequate and if costs are reasonable. This rule will amend the schedule for fees and charges for grading services rendered to the egg, poultry, and rabbit industries to reflect the costs currently associated with them.

A recent review of the current fee schedule, effective January 1, 2003, revealed that anticipated revenue would not adequately cover increasing program costs. Costs in FY 2004 are projected at $29.8 million. Without a fee increase, FY 2004 revenues are projected at $29.0 million and trust fund balances would be $14.6 million. With a fee increase, FY 2004 revenues are projected at $29.8 million and trust fund balances would remain at $15.2 million.

Employee salaries and benefits account for approximately 82 percent of the total operating budget. The last general and locality salary increase for Federal employees became effective on January 1, 2003, and it materially affected program costs. Projected cost estimates for that increase were based on a salary increase of 2.6 percent, however, the increase was actually 4.02 to 4.87 percent, depending on locality. Another general and locality salary increase estimated at 2 percent is expected in January 2004. Also, from October 2002 through September 2004, salaries and fringe benefits of federally-licensed State employees will have increased by about 3 percent.

The impact of these cost increases was determined for resident, nonresident, and fee services. To offset projected cost increases, the hourly resident and nonresident rate will be increased by approximately 3 percent and the fee rate will be increased by approximately 4 percent. The hourly rate for resident and nonresident service covers graders' salaries and benefits. The hourly rate for fee service covers graders' salaries and benefits, plus the cost of travel and supervision.

As shown in the table below, only the maximum monthly administrative charge that covers overhead costs for resident poultry and shell egg grading would be increased, while other administrative charges would not be changed.

The following table compares current fees and charges with proposed fees and charges for egg, poultry, and rabbit grading as found in 7 CFR parts 56 and 70:

Based on the analysis of costs to provide these services, a proposed rule to increase the fees for these services was published in the Federal Register (68 FR 37984) on June 26, 2003. Comments on the proposed rule were solicited from interested parties until July 28. No comments were received. The Agency will implement these increases, as proposed, to ensure the financial stability of its grading programs.

This action has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the AMS has considered the economic impact of this action on small entities. It is determined that its provisions would not have a significant economic impact on a substantial number of small entities.

There are about 400 users of Poultry Programs' grading services. These official plants can pack eggs, poultry, and rabbits in packages bearing the USDA grade shield when AMS graders are present to certify that the products meet the grade requirements as labeled. Many of these users are small entities under the criteria established by the Small Business Administration (13 CFR 121.201). These entities are under no obligation to use grading services as authorized under the Agricultural Marketing Act of 1946.

The AMS regularly reviews its user fee financed programs to determine if fees are adequate and if costs are reasonable. A recent review determined that the existing fee schedule, effective January 1, 2003, will not generate sufficient revenues to cover program costs while maintaining an adequate reserve balance in FY 2004. Costs in FY 2004 are projected at $29.8 million. Without a fee increase, FY 2004 revenues are projected at $29.0 million and trust fund balances would be $14.6 million. With a fee increase, FY 2004 revenues are projected at $29.8 million and trust fund balances would remain at $15.2 million.

This action will raise the fees charged to users of grading services. The AMS estimates that overall, this rule will yield an additional $800,000 during FY 2004. The hourly rate for resident and nonresident service will increase by approximately 3 percent and the fee rate will increase by approximately 4 percent. The impact of these rate changes in a poultry plant will range from less than 0.0001 to 0.025 cents per pound of poultry handled. In a shell egg plant, the range will be less than 0.00002 to 0.11 cents per dozen eggs handled.

This action has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.

The information collection requirements that appear in the sections to be amended by this action have been previously approved by OMB and assigned OMB Control Numbers under the Paperwork Reduction Act (44 U.S.C. Chapter 35) as follows: § 56.52(a)(4)—No. 0581-0128; and § 70.77(a)(4)—No. 0581-0127.

Pursuant to 5 U.S.C. 533, it is found and determined that good cause exists for not postponing the effective date of this action until 30 days after publication in the Federal Register . The revised fees need to be implemented on an expedited basis in order to avoid further financial losses in the grading program. The effective date of the fee increase will coincide with the billing cycle that begins on the first day of the first month after the date of publication in the Federal Register .

Section 12(i) of the Exchange Act vests the OCC with the powers, functions, and duties otherwise vested with the Securities and Exchange Commission (SEC) to administer and enforce certain provisions of the Exchange Act as they apply to national banks that have a class of securities registered under the Exchange Act (registered national banks). 1

Prior to the enactment of the Sarbanes-Oxley Act, 2 section 12(i) gave the OCC the authority to administer and enforce sections 12, 13, 14(a), 14(c), 14(d), 14(f), and 16 of the Exchange Act. The Sarbanes-Oxley Act amended some of those sections of the Exchange Act to impose additional requirements and, as a result, the OCC will administer and enforce these new requirements as they apply to registered national banks. In addition, the Sarbanes-Oxley Act amended section 12(i) to add new sections of the securities laws to the list of provisions that are enforced and administered by the OCC.

Titles III and IV of the Sarbanes-Oxley Act include a number of provisions that are designed to improve the corporate governance and financial disclosures of issuers that have a class of securities registered under sections 12(b) or 12(g) of the Exchange Act or that are required to file periodic reports with the SEC under section 15(d) of the Exchange Act (public issuers). All registered national banks are public issuers for purposes of the law.

Pursuant to the amendments to section 12(i) made by the Sarbanes-Oxley Act, the OCC administers and enforces the following new provisions of the Act with respect to registered national banks in addition to any new requirements that were added through amendments to sections of the Exchange Act that were enforced by the OCC prior to the enactment of the Sarbanes-Oxley Act.

• Section 301 3 establishes certain oversight, independence, funding, and other requirements for the audit committees of certain public issuers. It requires the SEC to issue implementing rules that prohibit any national securities exchange or national securities association from listing the securities of an issuer that fails to comply with these audit committee requirements. The SEC issued final rules to implement section 301 on April 9, 2003. 4 The rules took effect on April 25, 2003. In the rules, the SEC applies section 301 only to public issuers listed on a national securities exchange or listed in an automated inter-dealer quotation system of a national securities association. 5 Thus, section 301 applies only to registered national banks that are so listed.

• Section 302 requires the SEC to adopt rules that require the principal executive officers and principal financial officers of public issuers to include certain certifications in the issuer's annual and quarterly reports filed under the Exchange Act. The SEC issued final rules implementing this section on August 29, 2002. 6 The rules took effect on the same day.

• Section 303 requires the SEC to issue rules prohibiting the officers and directors of public issuers, and persons acting under their direction, from fraudulently influencing, coercing, manipulating, or misleading the issuer's independent auditor for purposes of rendering the issuer's financial statements materially misleading. The SEC published a final rule implementing this section on May 28, 2003. 7 The rule took effect on June 27, 2003.

• Section 304 requires the chief executive officer and chief financial officer of public issuers to reimburse the issuer for certain compensation and profits received if the issuer is required to restate its financial reports due to material noncompliance, as a result of misconduct, with any financial reporting requirements under the Federal securities laws. The requirements of section 304 took effect on July 30, 2002. No implementing regulations are required.

• Section 306(a) prohibits the directors and executive officers of any public issuer of equity securities from purchasing, selling, or transferring any equity security acquired by the director or executive officer in connection with his or her service as a director or executive officer during any “blackout period” with respect to the security. A “blackout period” generally is a period of three consecutive business days during which trading in the issuer's securities is suspended for 50% or more of the beneficiaries of the issuer's individual account plans. The SEC adopted final regulations pursuant to section 306(a) on January 26, 2003. 8 The rules took effect on the same day.

• Section 401(b) requires the SEC to issue rules that prohibit issuers from including misleading pro forma financial information in their reports under the securities laws or in any public release. Issuers also must reconcile any pro forma financial information included in such filings or public releases with the issuer's financial statements prepared in accordance with generally accepted accounting principles (GAAP). The SEC has issued final implementing regulations, 9 which apply to releases and disclosures made after March 28, 2003, and to annual and quarterly reports filed with respect to fiscal periods ending after March 28, 2003.

• Section 404 mandates that the SEC issue rules that require all annual reports filed under section 13(a) or 15(d) of the Exchange Act to include certain statements and assessments related to the issuer's internal control structures and procedures for financial reporting. 10 There is no statutory deadline for adoption of final rules implementing the requirements of section 404. The SEC adopted final regulations on June 5, 2003. 11

• Section 406 mandates that the SEC adopt rules that require public issuers to (1) disclose in their periodic reports filed under the Exchange Act whether the issuer has adopted a code of ethics for its senior financial officers and, if not, the reasons why such a code has not been adopted; and (2) promptly disclose on Form 8-K any change to, or waiver of, the issuer's code of ethics. The SEC published a final rule implementing this section on January 31, 2003. 12 The requirements of that rule took effect on March 3, 2003.

• Section 407 mandates that the SEC adopt rules that require public issuers to disclose in their periodic reports filed under the Exchange Act whether the audit committee of the issuer includes at least one financial expert and, if not, the reasons why the audit committee does not include such an expert. The SEC published a final rule implementing this section on January 31, 2003. 13 The requirements of that rule took effect on March 3, 2003.

On May 21, 2003, the OCC published in the Federal Register a notice of proposed rulemaking (NPRM) requesting comment on a proposed regulation implementing the provisions of the Sarbanes-Oxley Act. 68 FR 27753. The OCC did not receive any comments in response to the proposed rule. The OCC, therefore, is adopting the final rule as proposed with only technical changes.

Part 11 of the OCC's regulations, entitled “Securities Exchange Act Disclosure Rules,” currently implements the requirements of section 12(i) by applying to registered national banks, by means of cross-reference, the SEC's regulations implementing the reporting and disclosure provisions of sections 12, 13, 14(a), 14(c), 14(d), 14(f), and 16 of the Exchange Act. Part 11 requires national banks to file with the OCC any reports or forms required by the SEC's regulations.

We are amending part 11 to reflect the new provisions of the Sarbanes-Oxley Act that the OCC is required to administer and enforce with respect to registered national banks. Accordingly, the final rule revises § 11.2 to cross-reference new subsection 10A(m) of the Exchange Act and sections 302, 303, 304, 306, 401(b), 404, 406, and 407 of the Sarbanes-Oxley Act. The effect of the final rule is to require registered national banks to comply with the rules issued by the SEC pursuant to those statutory provisions.

Part 16 of the OCC's regulations, entitled “Securities Offering Disclosure Rules,” sets forth rules governing the offer and sale of securities by national bank issuers that are not subject to the registration and reporting requirements of the Securities Act of 1933. 14 Section 16.20 of the regulation mirrors the requirements of section 15(d) of the Exchange Act. 15 It requires each national bank that files a registration statement that has been declared effective by the OCC pursuant to part 16 to file the current and periodic reports required by section 13 of the Exchange Act  16 in accordance with the SEC's regulation 15D, as if the securities covered by the registration statement were securities registered pursuant to section 12 of the Exchange Act.

The final rule revises § 16.20 to continue to reference section 13 of the Exchange Act  17 and to add a cross-reference to the requirements of the revised § 11.2(a)(1)(ii). The effect of the final rule is to require banks filing registration statements pursuant to part 16 to continue to comply with section 13 of the Exchange Act and those sections of the Sarbanes-Oxley Act that are directly applicable to section 15(d) filers and that are administered and enforced by the OCC with respect to registered national banks. The final rule is thus consistent with the objectives of part 16, which we adopted in order to promote generally comparable treatment between national bank issuers of securities and other issuers that are directly subject to section 15(d). 18

Sections 11.2 and 16.20 currently cross-reference both the statutory provisions that the OCC has the authority to administer and enforce and the SEC's regulations implementing those provisions. The final rule removes cross-references to the specific sections of the SEC's regulations in favor of a more general reference to the rules, regulations, and forms adopted by the SEC pursuant to the listed statutory provisions. The existing statutory cross-references in parts 11 and 16 are adequate, in our judgment, to alert registered national banks and national banks required by part 16 to make filings pursuant to section 15(d) of the Exchange Act of the requirements that apply to them and to prompt them to consult the appropriate SEC regulations.

National banks may also monitor the Federal Register , the SEC's Web site, 19 and other appropriate publications to ensure that they are aware of developments that affect them. If the rules or forms issued by the SEC under these sections require issuers to file documents with the SEC, national banks must make such filings with the OCC in accordance with the provisions of part 11 or part 16, as appropriate.

This final rule takes effect 30 days after the date of its publication in the Federal Register, consistent with the delayed effective date requirement of the Administrative Procedure Act. See 5 U.S.C. 553(d). Section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994 (CDRI Act), 12 U.S.C. 4802(b), provides that regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions may not take effect before the first day of the quarter following publication unless the agency finds that there is good cause to make the rule effective at an earlier date. 20 The requirements of the Sarbanes-Oxley Act that are applied to national banks by the final rule are already in effect for those entities that are directly subject to the Act. Comparable regulation for national banks and similarly situated non-bank entities is best achieved by minimizing additional delay in applying those requirements to national banks. Accordingly, the OCC has determined that there is good cause to dispense with the requirements of the CDRI Act.

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise required under section 604 of the RFA is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a short, explanatory statement in the Federal Register along with its rule. As of December 31, 2002, there were approximately 25 national banks that had a class of securities registered under sections 12(b) or 12(g) of the Exchange Act and therefore subject to the amendments to part 11. As of the same date, only 15 of these institutions have assets of less than $100 million and are considered small entities for purposes of the RFA. See 5 U.S.C. 601; 13 CFR 121.201. As of December 31, 2002, there were approximately 20 national banks subject to part 16 reporting requirements.

Based on the relatively small number of national banks affected by the final rule and the fact that the requirements will not materially change the operating environment for those banks, the OCC hereby certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not needed.

In accordance with the requirements of the Paperwork Reduction Act of 1995, the OCC may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.

The information collection requirements contained in the notice of proposed rulemaking (68 FR 27753, May 21, 2003) were submitted to OMB for review and approved by OMB under OMB Control Numbers 1557-0106 ((MA)-Securities Exchange Act Disclosure Rules “ 12 CFR 11) and 1557-0120 ((MA)-Securities Offering Disclosure Rules “ 12 CFR 16).

The OCC solicited comments on the information collection requirements contained notice of proposed rulemaking. The OCC received no comments.

The collections contained in the final rule are unchanged from the proposed rule.

The OCC is amending 12 CFR part 11 to reflect amendments to section 12(i) of the Securities Exchange Act of 1934 (Exchange Act) made by the Sarbanes-Oxley Act of 2002. These amendments to section 12(i) give the OCC the authority to administer and enforce a number of the Sarbanes-Oxley Act's new reporting, disclosure, and corporate governance requirements with respect to national banks that have a class of securities registered under the Exchange Act.

The OCC is also making conforming amendments to 12 CFR part 16, which prescribes securities offering disclosure rules for national banks that issue securities that are not subject to the registration requirements of the Securities Act of 1933.

12 CFR part 11 references the applicable SEC regulations. The OCC does not maintain its own forms for collecting information and instead requires reporting banks to file SEC forms. Part 11 ensures that publicly owned national banks provide adequate information about their operation to current and potential shareholders, depositors, and to the public. The OCC reviews the information to ensure that it complies with Federal law and makes public all information required to be filed under these rules. Investors, depositors, and the public use the information to make informed investment decisions.

Title: (MA)-Securities Exchange Act Disclosure Rules (12 CFR 11).

OMB Number: 1557-0106.

Form Numbers: SEC Forms 3, 4, 5, 8-K, 10, 10-K, 10-Q, Schedules 13D, 13G, 14A, 14B, and 14C.

Estimated number of respondents: 65.

Estimated number of responses: 331.

Average hours per response: Varies.

Estimated total burden hours: 3,055 hours.

The likely respondents: National banks, individuals.

The information collection requirements in 12 CFR part 16 enable the OCC to perform its responsibilities relating to offerings of securities by national banks by providing the investing public with facts about the condition of a bank, the reasons for raising new capital, and the terms of securities offerings. Part 16 generally requires banks to conform to the Securities and Exchange Commission rules.

Title: (MA)-Securities Offering Disclosure Rules (12 CFR 16).

OMB Number: 1557-0120.

Description: Sections 16.3 and 16.5 require a national bank to file its registration statement with the OCC. Section 16.4 requires a national bank to submit certain communications not deemed an offer to the OCC. Section 16.5 provides an exemption for items that satisfy the requirements of SEC Rule 144, which, in turn, requires certain filings. Section 16.6 requires a national bank to file documents with the OCC and to make certain disclosures to purchasers in sales of nonconvertible debt. Section 16.7 requires a national bank to file a notice with the OCC. Section 16.8 requires a national bank to file offering documents with the OCC. Section 16.15 requires a national bank to file a registration statement and sets forth content requirements for the registration statement. Section 16.17 requires a national bank to file four copies of each document filed under part 16, and requires filers of amendments or revisions to underline or otherwise indicate clearly any changed information. Section 16.18 requires a national bank to file an amended prospectus when the information in the current prospectus becomes stale, or when a change in circumstances makes the current prospectus incorrect. Section 16.19 requires a national bank to submit a request to the OCC if it wishes to withdraw a registration statement, amendment, or exhibit. Section 16.20 requires a national bank to file current and periodic reports as required by sections 12 and 13 of the Exchange Act and SEC Regulation 15D. Section 16.30 requires a national bank to include certain elements and follow certain procedures in any request to the OCC for a no-objection letter.

Estimated number of respondents: 73.

Estimated number of responses: 73.

Average hours per response: Varies.

Estimated total burden hours: 2,333 hours.

Likely respondents: National banks.

Section 202 of the Unfunded Mandates Reform Act of 1995 requires that an agency prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, or $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Reform Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. The OCC has determined that this final rule will not result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, or $100 million or more in any one year. Accordingly, we have not prepared a budgetary impact statement.

The Comptroller of the Currency has determined that this final rule does not constitute a “significant regulatory action” for the purposes of Executive Order 12866.

The Bank Holding Company Act (12 U.S.C. 1841 et seq. ) (BHC Act), as amended by the Gramm-Leach-Bliley Act (GLB Act), 1 permits all bank holding companies to engage in any nonbanking activity that the Board had determined, by order or regulation prior to November 12, 1999, to be “so closely related to banking as to be a proper incident thereto” under section 4(c)(8) of the BHC Act. 2 The GLB Act requires bank holding companies to conduct these activities subject to the terms and conditions contained in the Board's regulation or order authorizing the activity, unless the Board modifies those terms or conditions. 3

The GLB Act also permits a bank holding company or foreign bank that has made an effective election to become a financial holding company (FHC) to engage in a broader range of activities that the GLB Act defines as being financial in nature or incidental to a financial activity, including the sale of insurance as principal or agent, full-scope securities underwriting and dealing, and merchant banking. 4 FHCs also may engage in any other activity that the Board, in consultation with the Secretary of the Treasury, determines to be financial in nature or incidental to a financial activity. 5 The text and legislative history of the GLB Act indicate that the “financial in nature” test was intended to be broader and more flexible than the “closely related to banking” standard that previously governed the scope of permissible nonbanking activities under section 4(c)(8) of the BHC Act. 6 Moreover, the factors that the Board is directed to consider in determining whether an activity is financial in nature or incidental to financial activities indicates that the scope of financial and incidental activities may expand over time in light of, among other things, changes in the marketplace in which FHCs compete. 7

The GLB Act also permits an FHC to engage in a nonfinancial activity if the Board determines that the activity is “complementary to a financial activity and does not pose a substantial risk to the safety and soundness of depository institutions or the financial system generally.” 8 This authority was intended to permit the Board to authorize an FHC to engage, to a limited extent, in activities that appear to be commercial if a meaningful connection exists between the proposed commercial activity and the FHC's financial activities and the proposed commercial activity would not pose undue risks to the safety and soundness of the FHC's affiliated depository institutions or the financial system. The GLB Act requires an FHC to obtain the Board's approval under section 4(j) of the BHC Act prior to engaging in an activity that the FHC believes is complementary to financial activities. 9

Following passage of the GLB Act, several FHCs, represented by their trade associations, requested that the Board authorize FHCs to engage in, or invest in companies engaged in, a wide range of data processing, technology, communication and e:commerce-related activities. In response to these requests, the Board took several steps. In December 2000, the Board adopted a final rule that authorizes FHCs to act as a “finder” through electronic or other means and thereby bring together buyers and sellers of financial and nonfinancial products for transactions that the parties themselves negotiate and consummate. 10 The Board's Finder Rule addressed several of the activities requested by the FHCs and permits FHCs, among other things, to—

To address other aspects of the FHCs' requests, the Board in December 2000, requested comment on a proposed rule that would modify the limits imposed by the Board on the amount of nonfinancial data processing activities that a bank holding company may conduct in connection with its financial data processing activities. 11 Regulation Y currently permits all bank holding companies to provide data processing and data transmission services, facilities (including data processing and data transmission hardware, software, documentation, or operating personnel), data bases, advice and access to such services, facilities and data to any customer if the data processed or furnished are financial, banking or economic in nature. 12 Regulation Y also currently permits a bank holding company or nonbank subsidiary engaged in processing financial data to provide data processing services for nonfinancial data so long as the annual revenues derived by the company or subsidiary from its nonfinancial data processing activities does not exceed 30 percent of the total annual revenue derived by the company or subsidiary from providing data processing services under section 225.28(b)(14). 13 The Board proposed increasing this limit on nonfinancial data processing activities from 30 percent to 49 percent.

The proposal also requested comment on whether the Board should authorize an FHC to invest, as a complementary activity, up to 5 percent of its Tier 1 capital in companies that provide (1) Data storage services for any type of data, so long as the company also provided data storage services for financial data; (2) general data processing services for any type of data, so long as the company derived at least 20 percent of its total revenues from financial data processing activities, providing data processing services to depository institutions and their affiliates, and the sale of other financial products and services; and (3) information portal services over electronic networks. 14 The Board indicated that an FHC would be expected to market and provide financial products or services through any information portal owned under the proposed authority. The Board asked for comment on whether the connections described above between the acquired company's nonfinancial and financial activities were sufficient to ensure that the acquired company's nonfinancial activities were complementary to financial activities within the meaning of the GLB Act. Consistent with the GLB Act, the Board also proposed to require that FHCs obtain the Board's prior approval under section 4(j) of the BHC Act for any proposed investment under these complementary authorities. 15

The Board also solicited the public's views on whether the Board should develop a proposal that would authorize FHCs to invest in companies engaged in developing new technologies that might support the marketing or sale of financial products or services, providing communication links, or selling and distributing financial and nonfinancial products and services through electronic means. The Board asked commenters supporting further Board action with respect to these investments to provide detailed arguments and data that would support a finding that investments in companies engaged in these activities are financial in nature or incidental or complementary to financial activities. The Board also sought comment on a variety of other potential issues associated with these investments, including whether authorizing such investments would be consistent with the intent of the GLB Act to maintain the general separation of banking and commerce, and whether investments in such companies, if permitted, should be limited to non-controlling positions.

The Board received thirteen comments on the proposal from banks, bank holding companies, and trade associations that represent banking organizations, securities firms and other financial service providers. All of the commenters supported Board action in this area and the Board's efforts to expand the range of activities permissible for bank holding companies and FHCs. Several commenters also stated that the proposal was consistent with Congress's desire, as expressed in the GLB Act, to allow FHCs to engage in an expanded range of financially related activities. Commenters also indicated that the proposal would allow bank holding companies to develop additional sources of revenue and would not present significant safety and soundness concerns.

Commenters strongly supported the Board's proposal to increase, from 30 percent to 49 percent, the amount of data processing revenues that a bank holding company or nonbank subsidiary engaged in financial data processing activities may derive from processing nonfinancial data. Commenters stated that there are no operational or functional differences between processing financial and nonfinancial data and that the proposal would allow bank holding companies to use more efficiently the systems, expertise and resources that they have developed for processing financial data. Commenters also stated that bank holding companies have gained experience in processing nonfinancial data under the more limited authority currently available under Regulation Y, and that the proposal would allow bank holding companies to meet the needs of their customers more effectively.

Also, customers increasingly are seeking data processing services that can satisfy both the financial and nonfinancial data processing needs of the customer. For example, some hospitals that previously sought only billing, payroll and accounting data processing services from bank holding companies now seek a more complete package of data processing services that include medical record organization, storage and retrieval, as well as billing, payroll and accounting services.

Commenters also supported the proposal to allow FHCs to invest in companies engaged in general data storage, general data processing, or electronic information portal activities. Commenters offered several reasons why the Board should find such investments to be financial in nature, incidental to financial activities or complementary to financial activities. For example, some commenters argued that data processing and data storage activities are, by their nature, financial activities regardless of the type of data involved. Others argued that the proposed activities were similar to, or an appropriate extension of, the existing data processing activities of bank holding companies or the “finder” activities permissible for FHCs. 16 Similarly, some commenters contended that general data storage activities are functionally similar to the safe deposit and custody services that banks have traditionally offered to their customers.

Alternatively, commenters asserted that the connections required by the proposed rule between the acquired company's nonfinancial activities and financial activities were sufficient to demonstrate that the investments were complementary to financial activities for purposes of the GLB Act. Some, however, argued that the proposed investments should be deemed incidental to financial activities if the acquired company engaged in any financial data processing activities or did so to a substantial extent. Similarly, some commenters argued that investing in a company providing information portal services should be deemed to be incidental to financial activities if the portal was used to sell financial products or services, or if the company operating the portal derived a certain portion of its revenues ( e.g. 50 percent) from financial activities.

Several commenters opposed the proposed 5 percent Tier 1 capital limit on investments made by FHCs in companies providing general data processing, data storage or information portal services. These commenters argued that the 5 percent investment limit was too low, was unnecessary to address any potential safety and soundness issues, or would force FHCs to sell profitable investments or engage in these activities only through separate subsidiaries. 17

Some commenters also asserted that the 60-day prior notice requirement for complementary investments would impede the ability of FHCs to respond quickly to investment opportunities and marketplace developments, and asked the Board to consider establishing a streamlined notice procedure for complementary investments. One commenter, however, asserted that the prior approval process was appropriate and would allow the Board to review and address on an individualized basis the issues associated with proposals by FHCs to engage in complementary activities.

Commenters generally favored allowing FHCs to invest in companies engaged in developing new technology, providing communication links, or marketing or selling financial and nonfinancial products or services through electronic means and encouraged the Board to take steps to determine that these types of investments are financial in nature or incidental or complementary to financial activities. Only a few commenters, however, addressed specifically this aspect of the proposal and the Board's questions concerning these types of investments. Commenters generally asserted that the financial industry increasingly relies on technology, communication systems, and electronic sales channels to support the marketing and sale of financial products and services. Commenters also asserted that new technologies, systems and networks often are developed and operated to support a wide range of financial and nonfinancial applications, and that companies providing these services may seek equity (rather than contractual) partners. In light of these developments, commenters argued that FHCs must be able to invest in companies developing or operating new technologies, communication systems and electronic sales channels to ensure that these technologies, systems and networks will meet the needs of the financial industry, and to ensure that FHCs do not become reliant on third parties for the tools and delivery channels that may be used in the marketing and sale of financial products and services. Some commenters also noted that while FHCs may invest in technology-related companies under the GLB Act's merchant banking authority, 18 the cross-marketing restrictions imposed on merchant banking investments by the GLB Act may diminish the ability of FHCs to compete for these investments.

After carefully considering the comments received on the proposal, the Board has adopted a final rule that amends the limitations previously imposed by the Board to allow all bank holding companies additional flexibility to process, store and transmit nonfinancial data in connection with their financial data processing, storage and transmission activities. The Board believes that the final rule will enhance the ability of bank holding companies to compete in the market for data processing services and respond to the financial and nonfinancial data processing needs of their customers. The Board also believes that amending the limitations in this manner would not negatively affect the safety and soundness of bank holding companies and their depository institution subsidiaries.

As discussed further below, the Board also believes that there are a variety of ways that additional nonfinancial data processing, information portal and other technology-related investments and activities may be complementary to the financial activities of an FHC within the meaning of the GLB Act. However, the factors and relationships that may demonstrate that a proposed activity or investment by an FHC is complementary to the financial activities of the FHC may vary based on the facts and circumstances associated with the proposal. In light of these facts, and the limited record developed during this rulemaking, the Board believes it is appropriate at this time to review proposals by FHCs to engage in, or acquire a company engaged in, a complementary activity on a case-by-case basis in accordance with the prior notice procedures established by section 4(j) of the BHC Act. The Board expects to revisit whether it would be appropriate to propose a rule permitting FHCs generally to engage in, or invest in companies engaged in, additional nonfinancial data processing, information portal or other technology-related activities after the Board has gained experience in reviewing requests by individual FHCs to engage complementary activities.

Section 225.28(b)(14) of Regulation Y currently permits bank holding companies, including FHCs, to provide data processing services (including software, hardware, advice and personnel) to any customer if the data to be processed is financial, banking or economic in nature. 19 The authority to engage in financial data processing activities permits bank holding companies to provide their customers with a wide range of data processing services, including data processing related to payroll, accounts receivable and accounts payable processing; bill preparation and bill payment; processing credit card, debit card and ATM transactions and other electronic funds transfers; loan processing; credit analysis; tax planning; accounting and bookkeeping services; economic forecasting; and data processing services to support the customer's marketing, sale and delivery of financial products and services over the Internet or other electronic networks, such as home banking or securities brokerage services. 20

Regulation Y also currently permits a company engaged in financial data processing activities under section 225.28(b)(14) to process nonfinancial data so long as the annual revenue derived by the company from its nonfinancial data processing activities does not exceed 30 percent of the company's total annual data processing revenues. As noted above, the Board proposed to raise this 30 percent limit on the nonfinancial data processing activities of bank holding companies to 49 percent. Commenters strongly supported this change for the reasons outlined above.

The Board has amended its regulatory limitation governing the conduct of data processing activities previously authorized for bank holding companies under section 4(c)(8) of the BHC Act to raise the threshold on nonfinancial data processing services as proposed. 21 In accordance with the GLB Act, all bank holding companies, including FHCs, may take advantage of the expanded data processing authority granted by the final rule.

The Board believes that the final rule will allow all bank holding companies to leverage more effectively the experience and resources they have developed from engaging in financial data processing activities. In addition, by allowing bank holding companies to process additional amounts of nonfinancial data for their customers, the final rule should allow bank holding companies to achieve additional economies of scale and compete more effectively with nonbank providers of data processing services.

The 49-percent revenue limit included in the final rule ensures that the data processing subsidiaries of bank holding companies operating under section 4(c)(8) of the BHC Act remain predominantly engaged in processing financial, banking or economic data. The Board believes this limit provides reasonable assurances that any nonfinancial data processing activities conducted by a bank holding company under section 225.28(b)(14) will remain incidental to the company's financial data processing for purposes of section 4(c)(8) of the BHC Act.

Bank holding companies that provide data processing services to customers should take appropriate steps to maintain the security, integrity and confidentiality of the customer's data. 22 In addition, bank holding companies must take appropriate steps to ensure compliance with all applicable federal and state laws governing the privacy of consumer data processed by the bank holding company on behalf of third parties.

Several commenters asked the Board to clarify the ability of bank holding companies to provide data storage, retrieval and imaging services as part of their data processing activities under section 225.28(b)(14). Data storage, retrieval and imaging are functions that are an integral and often necessary part of data processing and data transmission activities. Accordingly, the Board previously has indicated that the data processing services that bank holding companies may provide under section 225.28(b)(14) include data storage, imaging and retrieval. 23 In light of the commenters' requests, the Board has included language in the final rule that clarifies that bank holding companies may provide data storage, imaging and retrieval services for financial, economic or banking data without limit, and may provide such services for nonfinancial data to the extent permitted by the 49-percent revenue limit adopted by the final rule. 24

A few commenters also asserted that the Board should allow a bank holding company to use any excess capacity that may exist in the company's data processing systems to process nonfinancial data. The Board previously has indicated that bank holding companies may use any excess capacity that results in good faith from the bank holding company's financial data processing activities under section 225.28(b)(14) to process nonfinancial data, and bank holding companies may continue to use their excess capacity in this manner subject to the Board's regulations and policies governing these activities. 25 The Board also previously has indicated that revenue derived by a bank holding company from the use of excess capacity is not included for purposes of determining the company's compliance with the rule's revenue limit on nonfinancial data processing activities. 26

A bank holding company may use any currently available or newly developed technological means, including dedicated or shared electronic facilities, the Internet and optical technology, to provide its customers permissible data processing services. In addition, a bank holding company may provide its customers data processing services either as a stand-alone service or in conjunction with other products and services that the bank holding company is authorized to provide under the BHC Act.

The Board notes, however, that the authority to provide data processing services for financial and nonfinancial data does not authorize bank holding companies to engage in an activity simply because it involves the use of a computer or the transmission of data in electronic form. Section 225.28(b)(14) permits a bank holding company to provide data processing services to third-party customers to support the functions or activities of the customer. Where the bank holding company's data processing activities represent the conduct of a separate or different activity by the bank holding company itself, the bank holding company must have the authority to engage in that activity under other provisions of Regulation Y. For example, while a bank holding company may provide data processing support to an unaffiliated insurance agency under section 225.28(b)(14), such as, for example, by processing customer payments and optically scanning and storing the insurance policies issued by the agency, a bank holding company may not itself sell insurance (through electronic means or otherwise) under section 225.28(b)(14).

A few commenters asked that the Board permit bank holding companies to determine their compliance with the 49-percent revenue limit on nonfinancial data processing activities on a business line or organization-wide basis. The Board recognizes that there may be situations where a bank holding company has bona fide operational reasons for conducting its financial and related nonfinancial data processing activities through separately incorporated subsidiaries. Accordingly, bank holding companies may request permission to administer the 49-percent revenue limit on a business-line or multiple-entity basis in appropriate circumstances. The Board has delegated authority to its General Counsel, in consultation with the Director of the Division of Banking Supervision and Regulation, to review and act on these requests. Such requests should describe the structure of the holding company's data processing operations, the methodology the holding company proposes to use to administer the revenue test, and the reasons why the holding company believes the proposed methodology is appropriate. The General Counsel or the Board where appropriate will consider any request in light of all the facts and circumstances, including the inter-relationships between the data processing activities conducted by the bank holding company's separate subsidiaries, the holding company's business or operational reasons for conducting its data processing activities in different subsidiaries, and the level of the holding company's ownership interest in the individual subsidiaries.

The Board will revisit whether it would be appropriate to authorize all bank holding companies to monitor compliance with the revenue limit on a consolidated or business-line basis based on the experience gained from reviewing any such requests.

In response to requests from FHCs, the Board also requested comment on whether the Board should adopt a rule permitting FHCs to invest, as a complementary activity, in any company that provides (1) Data storage services for nonfinancial data without regard to the revenue limitations discussed above, so long as the company provided data storage services for some financial data; (2) data processing services for nonfinancial data, so long as the company derived at least 20 percent of its total revenues from processing financial data, processing data for depository institutions, or the sale of other financial products or services; or (3) electronic information portal services. 27 The Board proposed limiting the aggregate carrying value of an FHC's investments in companies engaged in these activities to 5 percent of the FHC's Tier 1 capital. FHCs also had requested authority to invest in companies that develop technology that might support the marketing or sale of financial products or services in the future; provide communication linkages for any type of information; or market and sell nonfinancial and financial products or services through electronic means.

The Board notes that much of the need expressed by FHCs for authority to make these types of investments may be addressed by the Board's decision to raise the revenue limit on the nonfinancial data processing activities of bank holding companies to 49 percent. In addition, the Board notes that FHCs currently have the authority to make investments in data processing companies that do not comply with the 49 percent revenue limit and other technology-related companies under the GLB Act's merchant banking authority. Although some commenters noted that the cross-marketing restrictions applicable to merchant banking investments may diminish the attractiveness of this investment authority, the Board notes that these restrictions apply only to the depository institution subsidiaries of an FHC (and not to the FHC itself or its nonbank affiliates) and Congress currently is considering legislation that would loosen these restrictions in several important respects. 28 Commenters also presented little evidence that, in the Board's view, indicates why data processing, information portal and the other technology-related activities, without limit on the type of data processed or amount of nonfinancial data processed, should, in all circumstances, be found to be financial in nature or incidental to a financial activity.

The GLB Act does permit an FHC to engage in, or acquire a company engaged in, a nonfinancial activity if the Board determines that the activity is complementary to financial activities and does not pose a substantial risk to the safety and soundness of depository institutions or the financial system. As noted above, this authority was intended to provide the Board a mechanism to allow an FHC to engage to a limited degree in commercial activities if the proposed commercial activities would meaningfully complement or enhance the financial activities of the FHC, and the proposed activities would not present undue risks to the subsidiary depository institutions of the FHC or the financial system.

The Board believes that there are a variety of relationships or connections between a commercial activity or investment and an FHC's financial activities that may indicate that the activity or investment is complementary to the FHC's activities within the meaning of the GLB Act. Ultimately, the determination whether a commercial activity or investment is complementary will depend on the nature of the activity and the level and quality of the many types of connections that may exist between the proposed activity or investment and the FHC's financial activities.

The Board does not believe that the limited record developed during this rulemaking provides the Board a sufficient basis for determining, by rule, that nonfinancial data processing and information portal activities are as a general matter financial in nature, incidental to a financial activity, or complementary to the financial activities of FHCs. The Board also does not believe that the record is sufficient at this time to warrant developing a formal proposal requesting comment on whether the Board should determine, by rule, that the other technology-related investments suggested by the initial FHC requestors are as a general matter financial in nature, incidental to a financial activity, or complementary to the financial activities of FHCs.

In light of the foregoing, the Board believes it is appropriate to review proposals by FHCs to engage in, or acquire a company engaged in, general data processing and electronic information portal activities, as well as other nonfinancial technology-related activities, on a case-by-case basis under section 4(j) of the BHC Act. This approach is consistent with the procedure established by the GLB Act for FHCs to engage in complementary activities. 29 This process will allow an FHC to present, and the Board to review, all the connections that may demonstrate that a proposed investment or activity is complementary to the FHC's financial activities for purposes of the GLB Act. Moreover, because the proposed rule would have required FHCs to obtain the Board's approval under section 4(j) prior to making any complementary investment under the proposal, the procedural approach adopted by the Board does not impose any additional filing burden on FHCs.

FHCs that believe a proposed investment or activity is complementary to the FHC's financial activities should submit a notice to the Board in accordance with section 4(j) of the BHC Act and section 225.89 of the Board's Regulation Y (12 CFR 225.89). The notice should, among other things, identify and define the proposed complementary activity, identify the financial activity to which the proposed complementary activity would be complementary, and describe the relationships and connections between the proposed activity and the identified financial activity that the FHC believes support a finding that the proposed activity is complementary. 30 In addition, the notice should explain why the proposed complementary activity or investment would not pose undue risks to the safety and soundness of the FHC's subsidiary depository institutions or the financial system and what, if any, limits would be appropriate to ensure that the investment or activity remains small in relation to the FHC's financial activities.

In accordance with section 4(a) of the Regulatory Flexibility Act (5 U.S.C. 604(a)), the Board must publish a final regulatory flexibility analysis with this rulemaking. The final rule expands the ability of bank holding companies of all sizes to process, store and transmit nonfinancial data in connection with their financial data processing activities. The Board specifically requested comment on the likely burden that the proposed rule would have on bank holding companies of all sizes, including small bank holding companies. 31 Commenters noted that the rule should enhance the ability of bank holding companies of all sizes to compete with other providers of data processing services, achieve additional economies of scale and utilize more efficiently their existing data processing resources and expertise. In response to comments received, the Board also has clarified the ability of bank holding companies to engage in data storage, imaging and retrieval activities in connection with their permissible data processing activities, and to use any excess capacity that may result, in good faith, from the bank holding company's financial data processing activities to process, store and transmit nonfinancial data.

A few commenters asked that the Board permit bank holding companies to derive more than 49 percent of their data processing revenues from processing, storing or transmitting nonfinancial data, or to apply the rule's revenue limit on nonfinancial data processing activities on a business-line or organization-wide basis. For the reasons discussed in the supplementary information above, the Board does not believe such actions would generally be appropriate or consistent with section 4(c)(8) of the BHC Act. The Board, however, has established a process whereby any bank holding company, including small bank holding companies, may obtain permission to administer the rule's revenue limit on nonfinancial data processing activities on a multiple-entity or consolidated basis. This process will permit bank holding companies, including small bank holding companies, to administer the revenue test in a more flexible manner when such action would be consistent with the BHC Act.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR 1320 Appendix A.1), the Board has reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget (“OMB”). The Federal Reserve may not conduct or sponsor, and an organization is not required to respond to, an information collection unless it displays a currently valid OMB control number.

As discussed in the SUPPLEMENTARY INFORMATION above, bank holding companies may request permission to administer the 49-percent revenue limit on nonfinancial data processing activities adopted by the final rule on a business-line or multiple-entity basis in appropriate circumstances. Such requests should be directed to the Board's General Counsel and should describe the structure of the holding company's data processing operations, the methodology the holding company proposes to use to administer the revenue test, and the reasons why the holding company believes the proposed methodology is appropriate. It is estimated that there will be 5 respondents per year with an estimated burden of 2 hours per response. Therefore the total amount of annual burden is estimated to be 10 hours. There is estimated to be $200 annual cost burden over the annual hour burden. An OMB control number for this information collection will be obtained.

A request may be filed in letter form and there will be no reporting form for this information collection. The agency form number for the notice will be the FR 4021. A bank may request confidentiality for the information contained in the notice in accordance with the Freedom of Information Act and the Board's Rules Regarding the Availability of Information. See 5 U.S.C. 552; 12 CFR part 261.

As required by the GLB Act, section 225.89 of the Board's Regulation Y currently requires an FHC to obtain the Board's approval prior to engaging in, or acquiring a company engaged in, an activity that the FHC believes is complementary to a financial activity. See 12 CFR 225.89. Section 225.89 also describes the information that must be included in any request to engage in, or acquire a company engaged in, a complementary activity. The Board previously has reviewed and approved this information collection in accordance with the requirements of the Paperwork Reduction Act. See Requests for Approval to Engage in an Activity that is Complementary to a Financial Activity (FR 4012; OMB No. 7100-0292).

The Board has a continuing interest in the public's opinions of the Federal Reserve's collections of information. At any time, comments regarding the burden estimate, or any other aspect of this information collection, including suggestions for reducing the burden, may be sent to: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW., Washington, DC 20551; and to the Office of Management and Budget, Paperwork Reduction Project, Washington, DC 20503.

Section 722 of the GLB Act requires the Board to use “plain language” in all proposed and final rules published after January 1, 2000. The Board requested comment on whether there were ways to make the proposed rule easier to understand. One commenter suggested that the Board reformat the portion of the proposed rule relating to the complementary general data processing activities of FHCs (§ 225.89(d)(1)(B) of the proposed rule) to make the rule easier to understand. For the reasons discussed above, the Board has determined not to adopt that section of the proposed rule. The Board also believes that the final rule is written plainly and presented clearly.

The FAA has determined that the notice and opportunity for public comment is impracticable because these procedures would significantly delay certification of the airplane and delivery of the affected airplane. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance, however, the FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the commit closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday thru Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On September 26, 2003, Garrett Aviation Services, 1200 North Airport Drive, Capital Airport Springfield, IL 62707, applied for a Supplemental Type Certificate (STC) to modify Israel Aircraft Industries (IAI) Model 1124 airplanes approved under Type Certificate No. A2SW. The IAI Model 1124 is a small transport category airplane. The IAI Model 1124 airplane is powered by two AiResearch Manufacturing Company TFE731-3-1G turbofans and has a maximum takeoff weight of 23,500 pounds. This airplane operates with a 2-pilot crew and can hold up to 10 passengers. The modification incorporates the installation of dual Innovative Solutions & Support Air Data Display Units (ADDU) and a single IS&S Air Data Sensor (ADS) interfaced with an existing Collins AP-105 Autopilot. The ADDU is a replacement for the existing analog flight instrumentation, while also providing additional functional capability and redundancy in the system. The ADS is a digital replacement for the existing analog Collins 590A-3( ) Air Data Controller which outputs vertical and lateral mode signals to the Collins flight guidance system. The digital avionics/electronics and electrical systems installed under this project in this airplane have the potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, Garrett Aviation Services must show that the IAI Model 1124 airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A2SW, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The certification basis for the modified IAI Model 1124 airplanes include 14 CFR Part 25, dated February 1, 1964, as amended by Amendments 25-1 through 25-20 except for special conditions and exceptions noted in Type Certificate Data Sheet (TDCS) A2SW.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , 14 CFR part 25, as amended) do not contain adequate or appropriate safety standards for the IAI Model 1124 airplanes because of novel or unusual design features, special conditions are prescribed under the provisions § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the IAI Model 1124 airplanes must comply with the associated change requirements of § 21.93(b).

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should Garrett Aviation Services apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same or similar novel or unusual design feature, these special conditions would also apply to the other model under the provisions of 14 CFR 21.101.

The IAI Model 1124 airplanes modified by Garrett Aviation Services will incorporate dual Air Data Display Units and a single Air Data Sensor system that will perform critical functions. These systems have to potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane. The current airworthiness standards (part 25) do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effect of HIRF. Accordingly, this system is considered to be a novel or unusual design feature.

There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved that is equivalent to that intended by the regulations incorporated by reference; special conditions are needed for IAI Model 1124 airplanes modified by Garrett Aviation Services. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters, plus the advent of space and satellite communications, coupled with electronic command and control of the airplane, the immunity of critical avionics/electronics and electrical systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1, or 2 below:

1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the following field strengths for the frequency ranges indicated. Both peak and average field strength components from the Table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

As discussed above, these special conditions are applicable to IAI Model 1124 airplanes modified by Garret Aviation Services. Should Garrett Aviation Services apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same or similar novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features on the IAI Model 1124 airplanes modified by Garrett Aviation Services. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of these special conditions has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities to comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for the Israel Aircraft Industries Model 1124 airplanes modified by Garrett Aviation Services.

1. Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF). Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields.

2. For the purpose of these special conditions, the following definition applies:

Critical Functions: Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane.

The FAA has determined that notice and opportunity for prior public comment is impracticable because these procedures would significantly delay certification of the airplane and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance; however, the FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m., and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On August 29, 2003, AeroMech Incorporated applied to the FAA, Fort Worth Special Certification Office, for a supplemental type certificate (STC) to modify certain Boeing Model 707-300 airplanes. These models are currently approved under Type Certificate No. 4A26. The Model 707-300 is a transport category airplane powered by four Pratt & Whitney turbojet engines. This airplane operates with three flightcrew and can hold up to 189 passengers. The modification incorporates the installation of dual Innovative Solutions and Support (IS&S) Air Data Display Units. The information presented is flight critical. The avionics/electronics and electrical systems installed in this airplane have the potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, AeroMech Incorporated must show that the Boeing Model 707-300 airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. 4A26, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The certification basis for the Model 707-300 airplanes includes Civil Air Regulations (CAR) 4b, as amended by Amendments 4b-1, 4b-2, and 4b-3; and additional requirements identified in the type certificate data sheet that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (CAR 4b, as amended) do not contain adequate or appropriate safety standards for the Boeing Model 707-300 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 707-300 airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should AeroMech Incorporated apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate 4A26 to incorporate the same or similar novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101.

As noted earlier, Boeing Model 707-300 airplanes modified by AeroMech Incorporated will incorporate brand new avionics/electronics and electrical systems (IS&S Air Data Display Units) that will perform critical functions. These systems may be vulnerable to high-intensity radiated fields external to the airplane. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effects of HIRF. Accordingly, this sytem is considered to be a novel or unusual design feature.

There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Boeing Model 707-300 airplanes modified by AeroMech Incorporated. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters, and the advent of space and satellite communications coupled with electronic command and control of the airplane, the immunity of critical avionics/electronics and electrical systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 or 2 below:

1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the field strengths identified in the table below for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

As discussed above, these special conditions are applicable to Boeing Model 707-300 series airplanes modified by AeroMech Incorporated. Should AeroMech Incorporated apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate 4A26 to incorporate the same or similar novel or unusual design feature, these special conditions would apply to that model as well as under the provisions of § 21.101.

This action affects only certain novel or unusual design features on the Boeing Model 707-300 airplanes modified by AeroMech Incorporated. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of these special conditions has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

1. Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF). Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high intensity radiated fields.

2. For the purpose of these special conditions, the following definition applies: Critical Functions: Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane.

On July 17, 2003, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class D and E4 airspace at Ormond Beach, FL, (68 FR 42322). This action provides adequate Class D and E4 airspace for IFR operations at Ormond Beach Municipal Airport. Class D airspace designations for airspace areas extending upward from the surface of the earth and Class E4 airspace areas designated as an extension to a Class D surface area are published in Paragraphs 5000 and 6004 respectively, of FAA Order 7400.9L, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E4 designations listed in this document will be published subsequently in the Order.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) establishes Class D and E4 airspace at Ormond Beach, FL.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On June 30, 2003, a notice proposing to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class E airspace extending upward from 700 feet above the surface within a 6-mile radius of Gettysburg Airport and Travel Center, Gettysburg, PA was published in the Federal Register (68 FR 38652-38653). Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before July 30, 2003. No comments to the proposal were received. The rule is adopted as proposed.

The coordinates for this airspace docket are based on North American Datum 83. Class E airspace area designations for airspace extending upward from the surface of the earth are published in paragraph 6005 of FAA Order 7400 9L, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published in the Order.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting IFR operations within a 6-mile radius of Upshur County Regional Airport, Buckhannon, WV.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affected air traffic procedures and air navigation, it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to 14 CFR 71 modifies the Class E airspace area extending upward from 700 feet above the surface at Great Bend, KS. It incorporates the current airport reference point for Great Bend Municipal Airport and modifies the Class E airspace extension from the 303° bearing from the airport to the 302° bearing. It brings the legal description of this airsapce area into compliance with FAA Order 7400.2E, Procedures for Handling Airspace Matters. The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9L, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2003-16080/Airspace Docket No. 03-ACE-72.” The postcard will be date/time stamped and returned to the commenter.

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

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to 14 CFR 71 modifies the Class E airspace area extending upward from 700 feet above the surface at Kingman, KS. It replaces “Kingman Municipal Airport,” the former name of the airport, with “Kingman Airport—Clyde Cessna Field,” the new name of the airport, in the legal description. A review of controlled airspace at Kingman, KS indicates existing 700 feet Above Ground Level (AGL) airspace does not meet criteria for diverse departures as specified in FAA Order 7400.2E, Procedures for Handling Airspace Matters. The criteria in FAA Order 7400.2E for an aircraft to reach 1200 feet AGL is based on a standard climb gradient of 200 feet per mile plus the distance from the Airport Reference Point (ARP) to the end of the outermost runway. Any fractional part of a mile is converted to the next higher tenth of a mile. The area is enlarged to conform to the criteria in FAA Order 7400.2E. An amendment to the Very High Frequency Omni-Directional Range (VOR)/Distance Measuring Equipment (DME) Runway (RWY) 18 SIAP raises the final approach fix crossing altitude and thereby eliminates the need for the north extension of the Kingman, KS Class E airspace area. This action brings the legal description of this airspace area into commpliance with FAA Order 7400.2E. The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9L, dated September 2, 2003, and effective September 16. 2003, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register, and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views, and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2003-16081/Airspace Docket No. 03-ACE-73.” The postcard will be date/time stamped and returned to the commenter.

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

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to 14 CFR part 71 modifies the Class E airspace area extending upward from 700 feet above the surface of the earth at Greenfield, IA. An examination of controlled airspace for Greenfield Municipal Airport reveals it does not meet the criteria for 700 AGL airspace required for diverse departures as specified in FAA Order 7400.2E, Procedures for Handling Airspace Matters. The criteria in FAA Order 7400.2E for an aircraft to reach 1200 feet AGL is based on a standard climb gradient of 200 feet per mile plus the distance from the Airport Reference Point (ARP) to the end of the outermost runway. Any fractional part of a mile is converted to the next higher tenth of a mile. This amendment also modifies the extension to the Greenfield, IA Class E airspace area by defining it with the 144° bearing from the Greenfield nondirectional radio beacon (NDB) versus the current 142° bearing. This amendment brings the legal description of the Greenfield, IA Class E airspace area into compliance with FAA Order 7400.2E. This area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9L, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2003-16504/Airspace Docket No. 03-ACE-88.” The postcard will be date/time stamped and returned to the commenter.

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

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On Monday, September 22, 2003, the FAA proposed to amend 14 CFR part 71 by establishing a Class E airspace area designated as an extension to the Class E surface area and revising the Class E airspace area extending upward from 700 feet or more above the surface at Goodland, KS (68 FR 55015) [FR Doc. 03-24143]. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received and a Final rule was subsequently published in the Federal Register on Friday, November 14, 2003, (68 FR 64524) [FR Doc. 03-28538].

A determination has been made that airspace comprising the extension to the Goodland, KS Class E surface area was necessary and properly established. However, this airspace area was erroneously categorized as an extension to the Class E surface area (E4) when it should have been added to the existing Class E airspace designated as a surface area (E2). This correction has no effect on the dimensions or definition of controlled airspace established by the rule, it merely identifies the extension as part of the basic surface area.

In the Federal Register of June 4, 2003 (68 FR 33362), FDA issued a FM for OTC skin protectant drug products in part 347. Section 347.50(b)(2) of that FM includes the following indications for OTC skin protectant drug products:

Shortly after FDA issued the FM, an industry national trade association submitted a petition (“The petition,” Ref. 1) requesting FDA to amend the FM to permit the terms “helps prevent” and “chafed” in the indications in § 347.50(b)(2). The petition stated that FDA had included these terms in the indication in this section proposed in the tentative final monograph (TFM) (February 15, 1983, 48 FR 6820 at 6832), which stated: “Helps prevent and temporarily protects chafed, chapped, cracked, or windburned skin and lips.”

The petition noted that the preamble to the FM contained a discussion of a study using nonmonograph concentrations of glycerin (less than 20 percent) that were found to be inadequate to support the indication that had been proposed in the TFM (see 68 FR 33362 at 33367). The petition added that the FM did not provide adequate justification or discussion for the elimination of this claim for other skin protectant active ingredients. The petition stated that skin protectant products are selected frequently for their preventative as well as their protective benefits. The petition requested FDA to reconsider its decision not to include the terms “helps prevent” and “chafed” in the indications in § 347.50(b)(2) of the FM.

FDA has reevaluated the indications in § 347.50(b)(2) of the FM and concurs with the petition that these terms should have remained in these indications, as proposed in the TFM. However, because labeling space may be limited for some OTC skin protectant drug products and all manufacturers of these products may not wish to include this additional language in their products' indications, FDA is including these additional terms as optional labeling in the indications in § 347.50(b)(2). Including these additional terms as labeling options will enable those manufacturers who wish to include these terms in product labeling to do so, but will not require all manufacturers of these products to have to include the terms if they do not wish to do so. Accordingly, in this final rule, FDA is amending § 347.50(b)(2) to read as follows:

FDA concludes that this revised labeling provides manufacturers a number of ways to state the indications for these OTC skin protectant drug products. Although not requested by the petition, FDA is also amending the indications in § 347.50(e)(1)(ii) [for products formulated and labeled as a lip protectant and that meet the criteria established in § 201.66(d)(10)] and (f)(1)(ii) [for products containing only cocoa butter, petrolatum, or white petrolatum, singly or in combination with each other, and marketed other than as a lip protectant]. FDA is amending these indications so that OTC skin protectant drug products labeled under these sections of the monograph can have comparable labeling to products labeled under § 347.50(b)(2). These amended sections read as follows:

FDA also intends to amend one of the indications in § 352.52(f)(1)(ii) to add the optional “prevents” language to be comparable to the other labeling revisions being made above. FDA intends to propose that the revised indication state:

To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it comes within the good cause exceptions in 5 U.S.C. 553(b)(3)(B) in that obtaining public comment is impracticable, unnecessary, and contrary to public interest. The labeling revisions represent a minor change to reinstate language that should not have been excluded from the FM, and to make other labeling in the FM consistent with the labeling proposed in the TFM. In addition, given the imminence of the current compliance dates (see DATES) for the FM, seeking prior public comment on this delay is contrary to the public interest in the orderly issuance and implementation of regulations. In accordance with 21 CFR 10.40(e)(1), FDA is providing an opportunity for comment on whether the regulation should be modified or revoked.

FDA has examined the impacts of this final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq. ). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Under the Regulatory Flexibility Act, if a rule may have a significant economic impact on a substantial number of small entities, an agency must analyze regulatory options that would minimize any significant impact of the rule on small entities. Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement and economic analysis before proposing any rule that may result in an expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million in any 1 year (adjusted annually for inflation).

FDA concludes that this final rule is consistent with the principles set out in Executive Order 12866 and in these two statutes. The final rule is not a significant regulatory action as defined by the Executive order and so is not subject to review under the Executive order. The Unfunded Mandates Reform Act does not require FDA to prepare a statement of costs and benefits for this final rule, because the final rule is not expected to result in any 1-year expenditure that would exceed $100 million adjusted for inflation. The current inflation adjusted statutory threshold is about $110 million.

The purpose of this final rule is to revise several monograph indications. These changes provide manufacturers of OTC skin protectant drug products additional options to state the uses in the labeling for their products.

All manufacturers of OTC skin protectant drug products will need to relabel their products as a result of the FM issued on June 4, 2003. Based on the amount of time it takes to relabel products (6 to 10 months, on average) FDA estimates that few, if any, manufacturers have relabeled their products as of the date of this technical amendment to the FM.

For the reasons stated in the previous paragraphs and under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Commissioner of Food and Drugs certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

FDA concludes that the labeling requirements in this document are not subject to review by the Office of Management and Budget because they do not constitute a “collection of information” under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Rather, the labeling statements are a “public disclosure of information originally supplied by the Federal Government to the recipient for the purpose of disclosure to the public” (5 CFR 1320.3(c)(2)).

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

FDA has determined under 21 CFR 25.31(a) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

Interested persons may submit written or electronic comments to the Division of Dockets Management (see ADDRESSES ). Three copies of all written comments are to be submitted. Individuals submitting written comments or anyone submitting electronic comments may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document and may be accompanied by a supporting memorandum or brief. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

The following reference is on display in the Division of Dockets Management (see ADDRESSES ) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.

The final and temporary regulations that are the subject of these corrections are under section 6031 of the Internal Revenue Code.

As published, these final and temporary regulations (TD 9094) contain errors that may prove to be misleading and are in need of clarification.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR Part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS PINCKNEY (DDG 91) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I, paragraph 3(a) pertaining to the location of the forward masthead light in the forward quarter of the vessel, and the horizontal distance between the forward and after masthead lights; Annex I, paragraph 3(c), pertaining to placement of task lights not less than two meters from the fore and aft centerline of the ship in the athwartship direction; Annex I, paragraph 2(f)(i), pertaining to the placement of the masthead light or lights above and clear of all other lights and obstructions; and Annex I, paragraph 2(f)(ii), pertaining to the vertical placement of task lights. The Deputy Assistant Judge Advocate General (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR Parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS CHAFEE (DDG 90) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I, paragraph 3(a) pertaining to the location of the forward masthead light in the forward quarter of the vessel, and the horizontal distance between the forward and after masthead lights; Annex I, paragraph 3(c), pertaining to placement of task lights not less than two meters from the fore and aft centerline of the ship in the athwartship direction; Annex I, paragraph 2(f)(i), pertaining to the placement of the masthead light or lights above and clear of all other lights and obstructions; and Annex I, paragraph 2(f)(ii), pertaining to the vertical placement of task lights. The Deputy Assistant Judge Advocate General (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General (Admiralty and Maritime Law) of the Navy, under authority delegated by the Secretary of the Navy, has certified that USS RONALD REAGAN (CVN 76) is a vessel of the Navy which, due to its special construction and purpose, cannot comply fully with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Rule 21(a), pertaining to the placement of the masthead lights over the fore and aft centerline of the ship; Annex I, paragraph 2(g), pertaining to the placement of the sidelights above the hull; and Annex I, paragraph 3(a), pertaining to the placement of the forward masthead light in the forward quarter of the ship. The Deputy Assistant Judge Advocate General (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS BENFOLD (DDG 65) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provision of 72 COLREGS without interfering with its special function as a naval ship: Annex I paragraph 3(a) pertaining to the location of the forward masthead light in the forward quarter of the vessel, and the horizontal distance between the forward and after masthead lights. The Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements. This amendment further provides notice that the Deputy Assistant Judge Advocate General (Admiralty and Maritime Law), has amended that certification to reflect that certain masthead lights on USS BENFOLD (DDG 65), previously certified as not in compliance with 72 COLREGS, now comply with the applicable 72 COLREGS requirements, to wit: the arc of visibility of the forward masthead light is no longer obstructed, as required by Rule 21(a).

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR part 706. The Secretary of the Navy previously certified that USS THEODORE ROOSEVELT (CVN 71) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with 72 COLREGS. This amendment provides notice that the Deputy Assistant Judge Advocate General (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has amended that certification to reflect that certain anchor lights on USS THEODORE ROOSEVELT (CVN 71), previously certified as not in compliance with 72 COLREGS, now comply with the applicable 72 COLREGS requirements, to wit: the forward and aft anchor lights are now located on the centerline of the ship, the required height above the hull, as required by Rules 21(e), 30(a)(i), and 30 (a)(ii).

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS CARNEY (DDG 64) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I, section 3(a) pertaining to the location of the forward masthead light in the forward quarter of the vessel, and the horizontal distance between the forward and after masthead lights; and, Annex I, section 2(f)(ii) pertaining to vertical placement of task lights. The Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

The proposed rule was published on August 29, 2003, at 68 FR 51959. No comments were received; therefore, the rule is being adopted as published.

It has been determined that Privacy Act rules for the Department of Defense are not significant rules. The rules do not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.

It has been determined that Privacy Act rules for the Department of Defense do not have significant economic impact on a substantial number of small entities because they are concerned only with the administration of Privacy Act systems of records within the Department of Defense.

It has been determined that Privacy Act rules for the Department of Defense impose no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974.

It has been determined that the Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.

It has been determined that the Privacy Act rules for the Department of Defense do not have federalism implications. The rules do not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [CGD07-03-200], indicate the specific section of this document to which each comment applies, and give the reason for each comment. The Coast Guard is interested in comments that, among other issues, detail specific economic impact to stakeholders on the waterway. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know that they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this rule in view of them.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. The updated information concerning the state of disrepair of the Sanibel Island Causeway Bridge was brought to the attention of the Coast Guard on November 25, 2003. Publishing a NPRM and delaying its effective date would be contrary to the public interest because immediate initial action is needed to maximize the risk of potential bridge allusions by vessels utilizing the main channel under span “A” (bascule portion) of the bridge and enhance the safety of vessels transiting the area and vehicles crossing over the bridge. The Coast Guard will issue a broadcast notice to mariners to advise mariners of the restrictions. Additionally, the Coast Guard is soliciting comments on this rule and may make changes in light of them.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The Coast Guard is making this rule effective on November 29, 2003 because immediate initial action is needed to minimize the risk of potential bridge allisions by vessels utilizing the main channel under span “A” (bascule portion) of the Sanibel Island Causeway Bridge and enhance the safety of vessels transiting the area and vehicles crossing over the bridge.

We do not now plan to hold a public meeting. However, you may submit a request for a meeting by writing to Marine Safety Division, Seventh Coast Guard District, 909 SE 1st Ave, 8th Floor, Miami, FL 33131, explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

On November 18, 2003, the Lee County Board of Commissioners issued an emergency declaration that present conditions of the Sanibel Island Causeway Bridge pose an immediate threat to the safety of the traveling public. Immediate initial action is thus required to minimize the risk of potential bridge allisions by vessels utilizing the main channel under span “A” (bascule portion) of the bridge and enhance the safety of vessels transiting the area and vehicles crossing over the bridge.

The regulated navigation area will encompass the main channel under the “A” span (bascule portion) of the Sanibel Island Causeway Bridge out to 100 feet on either side of the bridge encompassing the main shipping channel. All vessels are required to transit the area at no wake speed. However, nothing in this rule negates the requirement to operate at a safe speed as provided in the Navigation Rules and Regulations. A one-way traffic scheme is imposed within the regulated navigation area. Overtaking is prohibited. Stern towing is prohibited. Side towing is permitted. However, tugs with barges must be arranged in a push-ahead configuration with barges made up in tandem. Tugs must be of adequate horsepower to fully maneuver the barges. Tug and barge traffic may transit the regulated navigation area at slack water only. These regulations are going into effect to minimize the risk of potential bridge allisions by vessels utilizing the main channel under span “A” (bascule portion) of the Sanibel Island Causeway Bridge and enhance the safety of vessels transiting the area and vehicles crossing over the bridge.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. The Coast Guard bases this finding on the following: vessels may still transit the area; the waterway is not a major commercial route, and the Coast Guard expects only modest delays due to the nature of marine traffic that traditionally uses the waterway.

Additionally, the Coast Guard is soliciting comments to determine the impact on the boating public, and may make adjustments based on comments we receive.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit a portion of San Carlos Bay. The Coast Guard certifies that this rule would not have a significant economic impact on a substantial number of small entities for the following reasons: vessels may still transit the area; the waterway is not a major commercial route, and the Coast Guard expects only modest delays due to the nature of marine traffic that traditionally uses the waterway.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule has a significant economic impact on it, please submit a comment ( see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the temporary rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT. The Coast Guard has created a comment period for this temporary rule, and is particularly interested in comments describing specific economic impacts to small entities. This will allow the Coast Guard to better evaluate impacts to small entities. We also have a point of contact for commenting on actions by employees of the Coast Guard. Small business may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations, to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small businesses. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

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

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation.

An “Environmental Analysis Check List” and a “Categorical Exclusion Determination” (CED) has been placed in the docket where indicated under ADDRESSES.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:

Section 110 of the Clean Air Act (CAA) requires States to develop air pollution regulations and control strategies to ensure that State air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each State must submit these regulations and control strategies to EPA for approval and incorporation into the federally-enforceable SIP.

Each federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing State regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for State regulations to be incorporated into the federally-enforceable SIP, States must formally adopt the regulations and control strategies consistent with State and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a State-authorized rulemaking body.

Once a State rule, regulation, or control strategy is adopted, the State submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the State submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All State regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual State regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given State regulation with a specific effective date.

Enforcement of the State regulation before and after it is incorporated into the federally-approved SIP is primarily a State responsibility. However, after the regulation is federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

In August 2003, the St. Louis city Board of Aldermen updated the current SIP-approved Ordinance No. 64749 by rescinding it and adopting replacement Ordinance No. 65645. The only changes in the SIP-approved portion of the new Ordinance is the renumbering of Section 7—Definitions, to Section 6, and Section 17—Open Burning Restrictions, to Section 15.

Approving the new Ordinance subsequently necessitated that a reference to it in a SIP-approved St. Louis University Hospital incinerator permit, No. 00-01-004, be revised. Consequently, we are also approving a letter from the City of St. Louis Department of Health to St. Louis University Hospital, dated April 25, 2003, which revises Section II, B of incinerator permit No. 00-01-004, by updating the referenced Ordinance number to No. 65645.

A technical support document (TSD) containing additional information and background material for this action has been prepared and is available from the EPA contact listed above.

The State submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the TSD which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

We are approving the State's request to amend the SIP by rescinding the SIP-approved provisions of St. Louis city Ordinance No. 64794 and concurrently approving the same, but renumbered provisions, in Ordinance No. 65645. We are also approving an administrative revision to the incinerator permit for St. Louis University Hospital.

We are processing this action as a direct final action because the revisions make routine changes to the existing rules which are noncontroversial. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives relevant adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number, MO 199-1199a, in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

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

a. Electronic mail. Comments may be sent by e-mail to kaiser.wayne@epa.gov. Please include identification number, MO 199-1199a, in the subject line. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

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

2. By Mail. Written comments should be sent to the name and address listed in the ADDRESSES section of this document.

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 9, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On November 19, 2003, the Maryland Department of the Environment (MDE) submitted a formal revision to its State Implementation Plan (SIP). The SIP revision (Maryland SIP revision # 03-07) consists of the standards and requirements to control VOC emissions from consumer products.

In December 1999, EPA identified emission reduction shortfalls in several one-hour ozone nonattainment areas in the Ozone Transport Region (OTR) and required those areas to address the shortfalls. The Ozone Transport Commission (OTC) developed control measures into model rules for a number of source categories and estimated emission reduction benefits from implementing those model rules that will close the shortfalls. The OTC Commissioners formally supported these model rules, including a consumer products rule. The OTC Consumer Products model rule was based on the existing rules developed by the California Air Resources Board, which were analyzed and modified by the OTC workgroup to address VOC reduction needs in the OTR. The standards and requirements contained in Maryland's Consumer Products rule are consistent with the OTC model rule.

On July 25, 2003, the Secretary of the Environment adopted new regulation COMAR 26.11.32, Control of Emissions of VOC from Consumer Products that includes COMAR 26.11.32.01 through COMAR 26.11.32.23. This regulation establishes VOC content limits for approximately 80 categories and subcategories of consumer products. Consumer products are household and industrial products such as cleaning compounds, floor finishes, personal care products, automotive products, disinfectants, aerosol adhesives, and lawn and garden products.

The regulation applies to a person who sells, supplies, offers for sale, or manufactures consumer products on or after January 1, 2005 for use in the State of Maryland. Also included in the regulation are definitions, the VOC content limits, standards and exemptions, innovative products, administrative requirements, recordkeeping and reporting requirements, variances, test methods, and an alternative control plan.

On October 21, 2003, the Secretary of the Environment adopted an amendment to COMAR 26.11.32.01 by the addition of COMAR 26.11.32.01F, which clarifies the enforcement policy relative to the sale of a non-complying consumer product by a retailer. The amendment includes good faith efforts to be used by a retailer in safeguarding against the sale of a non-compliant product, and in the course of business, ensure that the products meet applicable state requirements.

EPA is approving revisions to the Maryland SIP, COMAR 26.11.32, to establish VOC content limits for approximately 80 categories and subcategories of consumer products that was submitted on November 19, 2003 by MDE. The implementation of this rule will result in the reduction of VOC emissions in the Baltimore Metropolitan Area.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on January 23, 2004 without further notice unless EPA receives adverse comment by January 8, 2004. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must 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.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number, MD152-3105, in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

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

i. E-mail. Comments may be sent by electronic mail (e-mail) to morris.makeba@epa.gov , attention: MD152-3105. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

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

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

2. By Mail. Written comments should be addressed to the EPA Regional office listed in the ADDRESSES section of this document.

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

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

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

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

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 9, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to Maryland's Consumer Products Rule, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

States that receive final authorization from EPA under RCRA Section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal Hazardous Waste Program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260-266, 268, 270, 273, and 279.

The effect of this decision is that a facility in Louisiana subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Louisiana has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to: (1) Do inspections, and require monitoring, tests, analyses or reports, (2) enforce RCRA requirements and suspend or revoke permits and (3) take enforcement actions after notice to, and consultation with the State. This action does not impose additional requirements on the regulated community because the regulations for which Louisiana is being authorized by today's action are already effective, and are not changed by today's action.

The State of Louisiana initially received final authorization on February 7, 1985 (50 FR 3348), to implement its base Hazardous Waste Management Program. Since the Base Program authorization, the following are publication dates for the State of Louisiana's program revisions: November 28, 1989 (54 FR 48889) effective January 29, 1990; August 26, 1991 (56 FR 41958) effective August 26, 1991; November 7, 1994 (59 FR 55368) effective January 23, 1995; December 23, 1994 (59 FR 66200) effective March 8, 1995; there were technical corrections made on January 23, 1995 (60 FR 4380), effective January 23, 1995; and another technical correction was made on April 11, 1995 (60 FR 18360) effective April 11, 1995. We authorized the following additional revisions: October 17, 1995 (60 FR 53704) effective January 2, 1996; March 28, 1996 (61 FR 13777) effective June 11, 1996; December 29, 1997 (62 FR 67572) effective March 16, 1998; October 23, 1998 (63 FR 56830) effective December 22, 1998; August 25, 1999 (64 FR 46302) effective October 25, 1999 ; September 2, 1999 (64 FR 48099) effective November 1, 1999; February 28, 2000 (65 FR 10411) effective April 28, 2000 and January 2, 2001 (66 FR 23) effective March 5, 2001. On October 23, 2001, April 4, 2003, and June 9, 2003, Louisiana applied for approval of its program revisions for RCRA Clusters X, XI and XII. In this application, Louisiana is seeking approval of RCRA Clusters X, XI and XII in accordance with 40 CFR 271.21(b)(3).

Since 1979, the State of Louisiana, through the Louisiana Department of Natural Resources, has conducted a program designed to regulate those who generate, transport, treat, store, dispose of or recycle hazardous waste. During the 1983 Regular Session of the Louisiana Legislature, Act 97, the Environmental Affairs Act, was adopted. This Act amended and reenacted Louisiana Revised Statutes (LRS) 30:1051 et seq. and also created the Louisiana Department of Environmental Quality (LDEQ). During the 1999 Regular Session of Louisiana Legislature, Act 303 revised the LRS 30:2011 et seq. , allowing LDEQ to re-engineer itself to perform more efficiently and to meet its strategic goals.

Act 97 transferred the duties and previously delegated responsibilities of the Department of Natural Resources, Office of Environmental Affairs, to LDEQ. The LDEQ and the Department of Natural Resources, Office of Conservation, has a memorandum of understanding that outlines the protocol for activities associated with the exploration, development, or production of oil, gas, or geothermal resources. The LDEQ has lead agency jurisdictional authority for administering the RCRA Subtitle C program in Louisiana. The LDEQ is designated to facilitate communication between the EPA and the State.

The State law governing the generation, transportation, treatment, storage and disposal of hazardous waste can be found in LRS 30:2171-2205. This part may be cited as the “Louisiana Hazardous Waste Control Law.” The laws governing hazardous waste should be viewed as part of a larger framework of environmental laws specified in Title 30, Subtitle II Louisiana Revised Statutes. The State of Louisiana adopted the Federal regulations for Cluster X , XI and XII promulgated from July 1, 1999 through June 30, 2002, and the State's regulations which became effective May 20, 1997, June 20, 1998, September 20, 1998, March 20, 1999, August 20, 1999, March 20, 2001, April 20, 2001, July 20, 2001, and March 20, 2003.

The State has made amendments to the provisions listed in the table which follows. These amendments correct typographical and/or printing errors, clarify and make the State's regulations more internally consistent. The State's laws and regulations, as amended by these provisions, provide authority which remains equivalent to and no less stringent than the Federal laws and regulations. These State initiated changes are submitted under the requirements of 40 CFR 271.21(a).

Louisiana applied for final approval of its revision to its hazardous waste program in accordance with 40 CFR 271.21. Louisiana's revisions consist of regulations which specifically govern RCRA Clusters X, XI and XII rules. Louisiana requirements are included in a chart with this document. The EPA is now making a final decision, subject to receipt of written adverse comments that oppose this action, that Louisiana's hazardous waste program revision satisfies the requirements necessary to qualify for final authorization. Therefore, we grant Louisiana final authorization for the following program revisions:

We conclude that Louisiana's application to revise its authorized program meets the statutory and regulatory requirements established by RCRA. Therefore, we grant Louisiana final authorization to incorporate the changes described in the authorization application into its hazardous waste program. Louisiana has responsibility for permitting treatment, storage, and disposal facilities within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Louisiana, including issuing permits, until the State is granted authorization to do so.

In this authorization of the State of Louisiana's program revisions for RCRA Clusters X, XI and XII, there are no provisions that are more stringent or broader in scope. The State's regulations are equivalent and consistent with the Federal regulations.

The EPA will administer any RCRA permits or portions of permits it has issued to facilities in the State until the State becomes authorized. At the time the State program is authorized for new rules, EPA will transfer all permits or portions of permits issued by EPA to the State. The EPA will not issue any more permits or portions of permits for the provisions listed in this document after the effective date of this authorization. The EPA will continue to implement and issue permits for HSWA requirements for which the State is not yet authorized.

The EPA is authorizing the State's changes through this immediate final action and is publishing this rule without a prior proposal to authorize the changes because EPA believes it is not controversial and we expect no comments that oppose this action. The EPA is providing an opportunity for public comment now. In addition, in the proposed rules section of today's Federal Register , we are publishing a separate document that proposes to authorize the State changes. If EPA receives comments opposing this authorization, that document will serve as a proposal to authorize the changes. ‘

You should send written comments to Alima Patterson, Regional Authorization Coordinator, State/Tribal Oversight Section (6PD-O), Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, (214) 665-8533. You may submit comments electronically to Patterson.alima@epa.gov. Please refer to Docket Number LA-01-03. We must receive your comments by January 8, 2004. You may not have an opportunity to comment again. If you want to comment on this action, you must do so at this time.

If EPA receives comments opposing this action, we will publish a second Federal Register document before the immediate final rule takes effect. The second document may withdraw the immediate final rule before it takes effect and a separate document in the proposed rules section of this Federal Register will serve as a proposal to authorize the changes or the document may identify the issues raised, respond to comments, and affirm that the immediate final rule will take effect February 9, 2004.

Unless EPA receives comments opposing this action, this final authorization approval will become effective without further notice on February 9, 2004.

You can view and copy the State of Louisiana's application from 8:30 a.m. to 4 p.m. Monday through Friday at the following addresses: Louisiana Department of Environmental Quality, 602 N. Fifth Street, Baton Rouge, Louisiana 70884-2178, (225) 219-3559 and EPA, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, (214) 665-6444. For further information contact Alima Patterson, Region 6 Regional Authorization Coordinator, State/Tribal Oversight Section (6PD-O), Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, (214) 665-8533.

Louisiana is not authorized to carry out its Hazardous Waste Program in Indian country within the State. This authority remains with EPA. Therefore, this action has no effect on Indian country.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. The EPA does this by referencing the authorized State rules in 40 Code of Federal Regulations part 272. The EPA reserves the amendment of 40 CFR part 272, subpart T for this codification of Louisiana's program changes until a later date.

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 ) May 22, 2001 because it is not a significant regulatory action under Executive Order 12866. Under RCRA section 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the Executive Order.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective on February 9, 2004.

This is a summary of the Commission's Second Report and Order and Memorandum Opinion and Order, ET Docket Nos. 01-278 and 95-19, FCC 03-149, adopted June 25, 2003, and released July 17, 2003. The full text of this document is available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room, CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the FCC Consumer & Governmental Affairs Bureau at (202) 418-0531 (voice), (202) 418-7365 (TTY).

1. In this Second Report and Order and Memorandum Opinion and Order, the Commission is updating certain regulations for unlicensed radio frequency devices contained in parts 2, 15 and 18 of our rules. Specifically, the Commission is: (1) Changing certain emission levels in the restricted bands above 38.6 GHz; (2) eliminating the prohibition on data transmissions and making other changes to rules governing part 15 remote control devices; (3) modifying the rules for radio frequency identification systems to allow for improved operation; (4) simplifying the labeling requirement for manufacturer self-authorized equipment; and (5) making other changes to update and correct our rules. Because of certain decisions in this Second Report and Order, the Commission is granting a petition for reconsideration filed by the Information Technology Industry Council (ITI) in ET Docket No. 95-19 to the extent indicated herein and granting a petition for declaratory ruling filed by M/A-COM Private Radio Systems, Inc. to the extent indicated herein.

2. In recent years, there has been a significant increase in the proliferation of unlicensed radio frequency devices that are regulated under part 15 of our rules (part 15 devices). Such devices are increasingly relied upon for many everyday functions in consumers' lives. Examples of common part 15 devices include cordless phones, computers, baby monitors, and garage door openers. The range of applications and technologies for these types of devices continues to evolve at a rapid pace. For example, digital processing speeds of personal computers are above 2400 MHz as compared to only 25 MHz about 10 years ago. Cordless telephones now operate at higher frequencies, with digital modulation techniques providing users with improved performance and additional service features. In addition, technological innovations are now being employed to develop new part 15 equipment and systems for business and professional applications, e.g. high speed, high capacity wireless local area networks (LANs). The part 15 rules have been highly successful in permitting the development of new types of unlicensed devices while protecting authorized users of the radio spectrum from harmful interference. Many millions of part 15 devices operate at the current limits without any significant interference problems.

3. On October 15, 2001, the Commission adopted a Notice of Proposed Rule Making and Order ( NPRM ), 66 FR 59209, that proposed a number of changes to part 15 and other parts of the rules. These proposals were based on recommendations contained within the Biennial Regulatory Review 2000 Updated Staff Report, two petitions for rule making concerning radio frequency identification systems, and other staff recommendations. We received 153 comments and 58 reply comments in response to the NPRM. On July 12, 2002, the Commission adopted a First Report and Order, 67 FR 48989, in this proceeding that required radar detectors to comply with the part 15 emission limits for unintentional radiators with regard to emissions in the 11.7-12.2 GHz band to protect very small aperture satellite terminals (VSATs) from interference. This Second Report and Order and Memorandum Opinion and Order addresses many of the issues raised in the NPRM that were not addressed in the First Report and Order. We plan to address the issues of radio frequency identification systems in the 425-435 MHz band and further changes to the emission limits in the restricted band above 38.6 GHz other than those discussed herein at a later date.

4. Specific frequency bands are designated as restricted bands in part 15 to protect certain sensitive radio services from interference, such as those that protect safety-of-life or those that use very low received levels, such as satellite downlinks or radio astronomy. Only spurious emissions are permitted in restricted bands, and such emissions must comply with the limits in § 15.209. The entire frequency range above 38.6 GHz is a restricted band, although there is an exception that permits transmitters to operate in the 46.7-46.9 GHz, 76-77 GHz and 57-64 GHz bands. At the time this frequency range above 38.6 GHz was designated as a restricted band, there was no requirement in our rules to make measurements above 40 GHz because of limitations in measurement technology. Designating the entire frequency range above 38.6 GHz as restricted, rather than restricting designated segments, was simply a matter of administrative convenience and had no impact on manufacturers because measurements were not required at those frequencies. However, due to advancements in measurement technology, the Commission now requires measurements above 40 GHz for some devices, so these devices must now comply with the restricted band limits.

5. In the NPRM, the Commission sought comment on the need for changes to the restricted bands above 38.6 GHz and the potential benefits to manufacturers of such changes. This Commission stated its belief that it is not necessary to restrict the entire band above 38.6 GHz because only certain portions of the band contain sensitive radio services that require this protection, such as those that protect safety-of-life or those that use very low received levels, such as satellite downlinks or radio astronomy. The Commission also stated in the NPRM that restricting the entire band above 38.6 GHz makes compliance more difficult to achieve for certain devices because they must comply with tighter harmonic limits than would otherwise apply if the band were not restricted. For example, the limit on harmonic emissions from a transmitter operating in the 24.0-24.25 GHz band under § 15.249 of the rules is 2500 μV/m at 3 meters. However, because the harmonics from a device operating in this band fall in the designated restricted band above 38.6 GHz, they must actually comply with a tighter limit of 500 μV/m at 3 meters. This conflict arose as a result of a 1995 rule change that required spurious emissions from transmitters operating above 10 GHz to be measured at frequencies above 40 GHz. Prior to that date, measurements were not required above 40 GHz for such transmitters, so there was effectively no limit on radiated emissions above 40 GHz.

6. Safety Warning System, L.C. (SWS), the Short Range Automotive Radar Frequency Allocation Group (SARA) and Cisco Systems, Inc. (Cisco) support modifying the restricted band above 38.6 GHz. SWS states that there is no need for a restricted band at the second and third harmonics of the 24 GHz band, and that the current restricted band bars socially valuable products at a reasonable price from the market. SARA states that the Commission should lift the blanket restricted status of frequencies above 38.6 GHz and maintain protection only for bands with sensitive services. It states that at a minimum, the Commission should lift the restriction at the third harmonic of 24 GHz, i.e. 72 GHz, because that is the most difficult harmonic to suppress and that lifting that restriction would not adversely affect any passive services. SARA claims that complying with the restricted band harmonic limits can double the cost of a 24 GHz transmitter. The National Aeronautics and Space Administration (NASA) submitted a list of 13 bands that it believes should be designated as restricted because they are used for passive sensing.

7. We are eliminating the requirement that the second and third harmonics from field disturbance sensors operating under § 15.245 in the 24.075-24.175 GHz band, specifically harmonics in the 48.15-48.35 GHz and 72.225-72.525 GHz bands, must comply with the restricted band limits in § 15.209. We are also eliminating the requirement that the second and third harmonics from devices operating under § 15.249 in the 24.0-24.25 GHz band, specifically harmonics in the 48.0-48.5 GHz and 72.0-72.75 GHz bands, must comply with the restricted band limits in § 15.209. These changes will resolve the current discrepancy in our rules concerning the harmonic emission limits for transmitters in the 24 GHz band. It will permit second and third harmonic emission levels of 2500 μV/m at 3 meters from devices operating in the 24.0-24.5 GHz band under the provisions of 15.249 of the rules, and 25,000 μV/m at 3 meters from disturbance sensors operating in the 24.075-24.175 GHz band under § 15.245 of the rules. These changes will benefit manufacturers because equipment will no longer have to meet limits that are tighter than necessary to control interference. These changes will not result in interference to Federal Government operations because there are currently no such operations in the 48.0-48.5 GHz or 72.0-72.75 GHz bands that would be adversely affected by these changes. In addition, there are currently no non-government operations in these bands. We note that there is a pending proceeding that proposes to change from uplinks to downlinks the Fixed Satellite Service allocation in the 71-75.5 GHz band and the Mobile Satellite Service allocation in the 71-74 GHz band. We do not expect that the changes we are adopting would affect any future operations in the 72.0-72.75 GHz band, even if this band were reallocated for satellite downlinks, because the high propagation losses and directivity of signals at these frequencies would significantly attenuate unwanted signals at a satellite receive site. We believe that there may be additional bands above 38.6 GHz which need not be designated as restricted because they do not contain services that require protection. We are continuing our discussions with NTIA to determine which bands above 38.6 GHz should continue to be designated as restricted and we defer a decision on this matter to a later date.

8. Section 15.231 of the rules allows the operation of remote control devices in the 40.66-40.70 MHz band and at any frequency above 70 MHz, except in designated restricted bands. There are two separate provisions for operation under this section. The first provision, in paragraph (a) of this rule section, contains field strength limits for devices that transmit control signals, such as those used with alarm systems, door openers and remote switches. A device operated under this paragraph must cease transmission within 5 seconds after being activated automatically or after a manually operated switch is released. Continuous transmissions such as voice and video are not permitted. Data transmissions are permitted only to identify specific transmitters in a system, but no additional data may be sent. For example, a device could transmit a warning when the pressure of a tire is low but could not transmit the actual pressure level, or could remotely activate a thermostat but not transmit the desired temperature setting information. The rule also prohibits periodic transmissions at regular predetermined intervals, although one transmission of not more than one second is permitted once per hour per transmitter in a system to verify the integrity of security transmitters. A device that is employed for radio control purposes during emergencies involving fire, security and safety of life may transmit continuously to signal an alarm. The second provision, in paragraph (e) of this section, allows any type of transmission, including data and transmissions at regular periodic intervals. However, the provisions of this paragraph specify lower field strength limits than paragraph (a). In addition, the provisions of this paragraph limit transmissions to no more than one second, with a silent period between transmissions of at least 30 times the duration of the transmission, but in no case less than 10 seconds. The field strength limits for remote control devices specified in paragraphs (a) and (e) are based on the average value of the measured emissions. For devices that use pulsed emissions, the field strength is determined by averaging over one complete pulse train, including blanking intervals, as long as the pulse train does not exceed 100 milliseconds. In cases where the pulse train exceeds 100 milliseconds, the field strength is determined by averaging over the 100 millisecond interval that produces the maximum value.

9. In the NPRM , the Commission proposed to allow data transmissions by remote control devices operating under § 15.231(a) of the rules, stating that the prohibition on data transmissions appears to be unnecessarily constraining and can be an impediment to the development of new types of devices, and that removing this restriction would not result in an increased potential for harmful interference. It also proposed to remove the prohibition on voice, video and continuous transmissions and on the radio control of toys, because data representing voice or video has no greater interference potential than any other type of data, so there is no need to expressly prohibit them. The Commission sought comment on the potential benefits of such changes to manufacturers. It also sought comment on whether allowing data transmissions would result in an increased proliferation of devices or in devices transmitting for a greater amount of time, and whether there is a need to modify the timing requirements in § 15.231 to avoid interference to other radio services.

10. ADEMCO, Cisco, Enalasys, Interlogix, ITI, JCI, Lifeline, Linear and Mattel all support removing the restriction on data transmission by remote control devices. Enalasys submits that removing this restriction will allow manufacturers to make more flexible and imaginative low power remote control devices. JCI states that permitting data transmissions would eliminate confusion about distinguishing between data and recognition codes, which are actually a form of data. ADEMCO believes that permitting data transmissions would enable new products such as comprehensive wireless displays. It also states that the proposed changes would provide for advanced user interfaces, better control capability, improvements in the installation process, and a higher level of security to residential and business premises. Lifeline states that its emergency alert transmitters designed for use by persons living alone would be more useful if voice and data transmissions were permitted, because they would be able to transmit medical data such as blood pressure. Lifeline, Linear, JCI and Mattel support permitting voice transmissions by remote control devices, stating that this change would make devices more useful. JCI and Mattel support permitting video transmissions. Mattel states that this change would permit devices such as video baby monitors to operate at 300 MHz. It also notes that the proposed elimination of the prohibition on radio control toys would allow for increased bandwidth and multiple receivers needed to permit racing of several remote control cars. Mattel believes that harmful interference is unlikely from such applications because the devices would be battery operated with low radiated radio frequency power. Ademco does not believe that the Commission should remove the restriction on radio control toys because predicted intensive and repeated use of radio control toys could interrupt security, safety and other vital applications of remote control devices. Cisco and ITI state that permitting a limited data stream for remote control devices would not lead to an increase in interference. Cisco notes that the interference potential is a function of the field strength levels and transmission duration and not the type of information being sent. The National Telecommunications and Information Administration (NTIA) expresses concern about the Commission's proposed changes. It states that under the proposed rules, systems using voice and data would proliferate, and that because the only timing restriction would be to turn off after five seconds, some devices could be transmitting virtually all the time. It believes that the increased transmission time of such devices as compared to devices that transmit short-duration control signals would increase the likelihood of interference to licensed services.

11. Several parties recommend rule changes beyond those proposed in the NPRM . CEA requests that the Commission allow duty cycle averaging over a one second interval instead of the 100 millisecond interval currently specified in the rules, because this would allow for the longer transmissions necessary to complete the setup, synchronization, transmitter identification and sending of a string of data. Enalasys wants the Commission to permit devices used only by trained operators to operate with 10 dB higher power than currently permitted. JCI wants the Commission to reevaluate its policy of permitting more rapid duty cycles or continuous operation only during emergencies involving fire, security or safety of life. It states that the Commission should permit more rapid duty cycles to report on additional conditions that might endanger property, machinery or the operation of systems. JCI believes that requiring transmissions to cease after five seconds is arbitrary, and believes the Commission should delegate authority to the Office of Engineering and Technology (OET) to waive this requirement at its discretion, although it did not suggest any specific standards that should be considered in granting waivers. Interlogix wants the Commission to permit devices to operate with a total of two seconds of polling time per hour, with no limit on the number of individual transmissions, because it will allow more useful information to be sent, such as the time of entry/exit from a building or the identity of a person entering or leaving. Interlogix also wants the five second transmission time permitted by the rules to be the total transmission time excluding the “off” times between pulses, because it claims that the rule was designed to allow five seconds of continuous transmission, so excluding the “off” times between pulses would allow the same transmission time that the rule originally intended. Interlogix also wants professional installers to be permitted to automatically initiate transmissions longer than five seconds during the set-up of equipment because sophisticated systems often require longer transmissions to initialize them. Ademco supports the Interlogix proposal to allow a total transmission time of two seconds per hour for polling, but it disagrees with both Interlogix and JCI that the five second time limit for transmissions should be changed. It states that this rule is effective in ensuring a quiet band and promotes interference-free operation of part 15 devices. Ademco disagrees with CEA that the duty cycle averaging time should be increased to one second, because it would be contrary to the short-burst principal underlying the shared used of spectrum by devices operating pursuant to the rules. It also disagrees with Enalasys that higher power should be permitted for devices under the control of trained operators because any type of high power operation is incompatible with existing part 15 uses.

12. We find that the restriction on data transmissions by remote control devices in § 15.231(a) should be removed. As noted by the commenting parties, this change will allow manufacturers to make more flexible, imaginative and useful remote control devices. It is not practical to prohibit all data transmissions as NTIA requested. Virtually all modern remote control devices transmit a string of bits, and bits representing identification codes are indistinguishable from bits representing information. Maintaining the prohibition on data transmission inhibits the development of improved devices that pose no significant risk of harmful interference. We note that the interference potential of a device is a function of the field strength and duration of the transmission, rather than the type of information being sent; and, we are not changing the field strength or transmission timing limits. We decline to remove the prohibition on voice, video and continuous transmissions and on the operation of radio control toys as the Commission proposed in the NPRM . There are already a number of provisions in part 15 of the rules that permit voice, video, radio control toys, and continuous transmissions in other frequency bands, so there is no need to establish additional provisions for them under § 15.231(a). On further review, allowing such operation would in fact significantly and unnecessarily expand the goal of the NPRM , which was to allow manufacturers to develop devices that transmit identification codes, supplemented with the transmission of some additional data. The net result of the changes we are adopting is that operation under § 15.231(a) will continue to be limited to devices that transmit a control signal, but such devices will be permitted to transmit data with the control signal. They will have to meet the same field strength, timing and other operational limits that currently exist. We believe that these changes adequately address NTIA's concerns about harmful interference from devices transmitting continuously because the rules will continue to explicitly prohibit continuous transmissions. Furthermore, the transmission timing and other restrictions in § 15.231(a), which limit operation to devices that transmit a control signal and prohibit voice, video and the radio control of toys, will preclude continuous data transmissions in any case. No changes are being made to § 15.231(e) because data transmissions are already permitted under this section.

13. We decline to allow duty cycle averaging over a one second interval as requested by CEA, rather than over the 100 millisecond interval currently specified in the rules. The requested change effectively allows higher signal strength, which could result in increased interference potential of devices. The current requirement does not preclude devices from transmitting for more than 100 milliseconds as CEA implies; it simply specifies the time interval for determining the average field strength of a device that uses pulsed transmission. Allowing an average to be calculated over a longer time interval could result in a lower value that does not accurately reflect the interference potential because the average could include blanking intervals between signal bursts that would be excluded from an average calculated over a shorter time interval. We also decline to allow trained operators to use equipment which operates with a 10 dB higher power than currently permitted, as requested by Enalasys. Such equipment would have a higher potential for interference to other services, and it is unlikely that even a trained operator would have sufficient information to determine whether harmful interference would occur in a particular location. We decline to broaden the criteria under which more rapid duty cycles are permitted as requested by JCI, or to allow setup transmissions longer than 5 seconds as requested by Interlogix. JCI and Interlogix have not shown why the existing limits are inadequate for the situations it identified. Finally, we decline to change our requirement for a device to cease transmission within five seconds after being activated automatically or after release of a control that manually activates it, and we decline to specify the five second time as excluding the “off” time between pulses. This requirement to cease transmissions within five seconds prevents continuous transmissions which could result in interference to other devices.

14. As recommended by Interlogix and Ademco, we will permit remote control devices to transmit for a maximum of two seconds per hour, instead of the current one second, for polling the integrity of transmitters used in security or safety applications. The number of individual transmissions will not be limited, provided the total transmission time does not exceed two seconds per hour. This change will allow for increased reliability in alarm systems by permitting systems checks to be performed at more frequent intervals. Any increased interference potential as a result of this change is negligible because polling transmissions will still only be permitted for less than one tenth of one percent of the time.

15. Radio frequency identification (RFID) systems use radio signals to track and identify items such as shipping containers and merchandise in stores. A system typically consists of a tag mounted on the item to be identified, and a transmitter/receiver unit that interrogates the tag and receives identification data back from the tag. The tag may be a self-powered transmitter, or it may receive power from the interrogating transmitter. RFID systems can operate in a number of frequency bands under part 15. Part 15 currently permits the operation of intentional radiators, including RFID systems, in the 13.553-13.567 MHz band at a field strength limit of 10,000 μV/m at 3 meters. Emissions outside this band must comply with the radiated emission limits in § 15.209, which specifies a limit of 30 μV/m at 30 meters for emissions in the 1.705-30 MHz band.

16. In the NPRM, the Commission proposed to modify the part 15 limits for operation in the 13.553-13.567 MHz band and the adjacent 13.110-13.553 MHz and 13.567-14.010 MHz bands, as requested by National Council for Information Technology Standardization Technical Committee B10 (NCITS B10), to allow the development of RFID tags capable of operating uniformly in the United States, Europe and Australia. Specifically, the Commission proposed to increase the maximum field strength within the 13.553-13.567 MHz band from 10,000 μV/m to 15,848 μV/m at a distance of 30 meters, to increase the maximum field strength permitted in the 13.410-13.553 MHz and 13.567-13.710 MHz bands from 30 to 334 μV/m at 30 meters, and to increase the maximum field strength permitted in the 13.110-13.410 MHz and 13.710-14.010 MHz bands from 30 to 106 μV/m at 30 meters. These are the limits developed by the European Telecommunications Standards Institute (ETSI) for low power devices operating in these bands. The Commission further proposed to allow devices operating in the 13.110-14.010 MHz band to place emissions other than spurious emissions into the 13.36-13.41 MHz restricted band because that band is used at only one radio astronomy site in Florida and NTIA has no objection to allowing emissions from RFID devices in this restricted band. In addition, the Commission proposed to allow powered RFID tags and readers to be approved together and labeled with a single FCC identification number.

17. CEA, Chester Piotrowski, DataBrokers, Inc. (DataBrokers), Gap, Inc., MagTek, Inc., Motorola, NCITS B10, Philips Semiconductor (Philips), the Telecommunications Industry Association (TIA), and Texas Instruments (TI) support the proposed changes, stating they will allow increased range for RFID tags, permit the development of new types of devices, and harmonize the United States regulations with those of other countries. TI states that this rule change would simplify the design and manufacturing of RFID products and allow lower costs due to worldwide commonality of standards. Both TI and Philips state that the proposed changes would allow higher security, data transfer rates and read range performance in RFID applications. HID Corporation believes the proposed emission limits are not likely to cause interference to other services and will benefit the public by permitting devices with better performance. It believes that the 13.36-13.41 MHz band should be removed from the list of restricted bands to permit sidebands from devices at 13.553-13.567 MHz to fall in that frequency range.

18. Cubic Corporation (Cubic) states it does not support the proposed changes for RFID tags unless a quantitative analysis is provided to show that new systems will not interfere with existing RFID systems in the band. It states that the petition was premised on the idea that RFID tags would not be self-powered, but new self-powered devices are being developed that will increase the noise floor in the band. Both Cubic and Nickolaus E. Leggett state that part 15 devices should not be permitted to operate in the 13.36-13.41 MHz radio astronomy band because that would make it unusable for radio astronomy. TI responds that Cubic has not shown that operation of RFID tags under the proposed parameters would cause interference to other part 15 RFID tags, and that the emissions from RFID tags would be too low to cause interference to radio astronomy. NTIA states that it has no objection to operation of RFID devices in the 13.110-14.010 MHz band, which includes the 13.36-13.41 MHz restricted band, at the emission levels proposed in the NPRM.

19. We are adopting the changes proposed in the NPRM to increase the maximum field strength permitted in the 13.553-13.567 MHz band from 10,000 to 15,848 μ/m at 30 meters, to increase the maximum field strength permitted in the 13.410-13.553 MHz and 13.567-13.710 MHz bands from 30 to 334 μV/m at 30 meters, and to increase the maximum field strength permitted in the 13.110-13.410 MHz and 13.710-14.010 MHz bands from 30 to 106 μV/m at 30 meters. In addition, we will permit emissions other than spurious emissions in the restricted band at 13.36-13.41 MHz. These changes will allow for improved operation of RFID tags in the 13.56 MHz band without adverse consequences to other devices, and will allow for the development of RFID tags that can work in both the United States and other countries. As proposed in the NPRM, we also will allow powered RFID tags to be approved either as part of a system with a tag reader under one FCC identification number, or under separate FCC identification numbers. Allowing powered tags and readers to be approved together will simplify the filing requirements in cases where the devices are always sold together, and permitting tags and readers to be approved separately will provide increased flexibility to manufacturers by permitting the sale of different combinations of tags and readers.

20. We disagree with Cubic that an analysis is required to show that new systems would not interfere with existing RFID systems in the band. Cubic has not provided information to indicate that a problem exists warranting scrutiny. We note that part 15 devices have no interference protection from other part 15 devices. Also, because the existing rules for the 13.553-13.567 MHz band place no restrictions on the types or lengths of transmissions, self-powered tags are already permitted. The rule changes we are adopting simply provide for an increase in field strength within the 13.553-13.567 MHz band and adjacent bands. We disagree with Cubic and Nickolaus E. Leggett that emissions from RFID tags should not be permitted in the 13.36-13.41 MHz restricted band. Neither party has provided information beyond unsubstantiated allegations that there are any radio astronomy operations in this band in the United States that would receive interference from RFID tags. Radio astronomy operations in this band in the United States are performed at only a single site in Florida. Further, the proposal was coordinated with the Interdepartment Radio Advisory Committee (IRAC), which includes the National Science Foundation, which represents radio astronomy interests. No objections to the proposed changes were received from radio astronomy interests.

21. Declaration of Conformity (DoC) is an equipment authorization procedure in which the manufacturer or other responsible party has the equipment tested for compliance at a laboratory accredited to make the required measurements. If an accredited laboratory finds that the equipment complies with the applicable rules, it may be marketed without an approval from the Commission. Equipment authorized through the DoC procedure must be labeled as specified in § 15.19 of the rules, which provides two variations of the DoC label. One is for equipment tested for compliance as a complete unit, and the other is for personal computers assembled from components that were tested separately for compliance. Either variation of label must include the trade name, the equipment model number, the FCC logo, the phrase “For Home or Office Use”, and a statement as to whether the complete device was tested for compliance or whether it was assembled from tested components. A compliance information statement must be supplied with equipment authorized through the DoC procedure, and this statement must include the name and model number of the product, a statement that the equipment complies with part 15 of the rules, and the name, address and telephone number of the party responsible for the compliance of the product. The compliance information statement supplied with equipment that was assembled from tested components must also identify the components used in the assembly.

22. In the NPRM, the Commission proposed several changes to simplify the labeling required on products authorized through the DoC procedure. It proposed to delete the requirement that the phrase “For Home or Office Use” appear on the label as unnecessary and because including it requires the use of a larger label, which could become increasingly burdensome as advancements in technology result in smaller and smaller equipment. The Commission also proposed to eliminate the statement on the label that the complete device was tested for compliance in order to further streamline the label. However, it proposed to continue requiring that personal computers assembled from tested components contain a statement to that effect on their label because that information could assist us in determining the source of compliance problems when investigating cases of non-compliant equipment. The Commission sought comment on whether electronic labeling should be permitted for devices authorized under the DoC procedure, and if so, the appropriate method for electronically labeling equipment such as computers that are authorized through the DoC procedure.

23. CEA, Cisco, IBM, ITI, Motorola, Shure, Uniden and TIA all support the proposed simplification of the DoC labeling requirements, stating that the changes will allow smaller labels on equipment. CEA, Cisco and Motorola agree that the phrase “For Home or Office Use” is not necessary on the label because Class B devices can be used anywhere. Cisco agrees that the label on a computer assembled from tested components should state that it was assembled from tested components to assist the Commission in determining the source of, and resolving interference that may originate with such devices. IBM requests that we require the statement in § 15.19(a)(3) to appear only in the instruction manual rather than on the product to save space, and that the product be labeled with the phrase “Class A” or “Class B” in place of the statement. Shure requests that we allow manufacturers to use externally accessible areas such as battery compartments for labeling because it is undesirable for labeling on wireless microphones to show up on camera, and because the battery compartment offers protection from wear and perspiration and will be seen when the user replaces batteries. IBM and ITI request that we codify the accepted practice of allowing the trade name and model number to be placed in locations other than the compliance label to avoid using critical space for redundant information. CEA requests that we provide sufficient lead time for manufacturers to plan and implement any labeling changes.

24. IBM, ITI and TIA support permitting electronic labeling for equipment authorized under the DoC procedure in order to reduce costs and allow easy re-labeling of equipment. ITI and TIA believe that electronic labeling should be permitted for equipment authorized under all parts of the rules, as an alternative to physical labeling, and IBM believes that electronic labeling should be permitted to display the FCC identification number of transmitters that are installed in laptops by selecting the proper pull-down menu, similar to what is permitted for software defined radios.

25. As proposed, we are eliminating the requirement for the DoC label to contain the phrase “For Home or Office Use” as unnecessary, because the DoC procedure is applicable to Class B digital devices and other types of equipment that can be used anywhere. This change will simplify the labeling requirements and permit smaller labels on equipment. We are also eliminating as unnecessary the requirement for the DoC label to state if the complete device was tested for compliance. We will continue to require the DoC label on computers assembled from tested components to state that they were assembled from tested components, because that information could assist the Commission in determining the source of compliance problems with such devices. It will be presumed that the complete device was tested for compliance unless the label states otherwise. We believe that the vast majority of equipment subject to DoC is tested as a complete unit rather than assembled from tested components. Therefore, this action will allow labels to be further streamlined on the majority of devices subject to this procedure. Because this change is deregulatory in nature and requires no new information to be added to labels, no transition period is necessary. Responsible parties may continue to use labels that were designed to meet the old requirements as long as they wish and may change to the simplified labels at their convenience.

26. We decline to limit the appearance of the statement required by § 15.19(a)(3) to the instruction manual, as requested by IBM. This statement advises users that operation of the equipment is subject to the conditions that it not cause harmful interference and that it must accept any interference received, including interference that may cause undesired operation. We believe that many users may be unaware of this requirement for part 15 devices, so this statement provides useful information to users. In addition, § 15.19(a)(5) already contains a provision that permits the label to be placed in the instruction manual in cases where a device is so small that it is not practicable to place the statement on the device. We decline to change the rules as requested by ITI and IBM to specify that the trade name and model number do not have to appear on the DoC label if they appear elsewhere on the equipment, because we already permit placement of this information elsewhere on the equipment when necessary. Therefore, there is no need for the recommended rule change. Likewise, labeling for a device may be placed inside a battery compartment when necessary, so there is no need for a rule change.

27. We decline to permit electronic labeling of equipment subject to DoC or for any other equipment except software defined radios. The rules currently permit electronic labeling for software defined radios because there is sometimes a need for a third party to change the identification number of a radio in the field when changes are made to the software that affect the device's operating frequency, modulation type or maximum output power. This permits the identification number to be changed without physical re-labeling of a radio. None of the comments in this proceeding have shown that there is a similar need for us to allow this capability in equipment subject to DoC or in any other equipment besides software defined radios.

28. In the NPRM, the Commission proposed to incorporate into our rules by reference American National Standards Institute (ANSI) C63.17-1998 as the procedure it will use for testing unlicensed Personal Communication Service (PCS) equipment. This procedure was developed by the ANSI C63 Committee specifically for testing unlicensed PCS equipment for compliance with the requirements in part 15 of the rules.

29. CEA, Cisco and Motorola support the use of the C63.17-1998 procedure for testing unlicensed PCS equipment. CEA and Motorola state that this procedure will help ensure that equipment complies with the Commission's rules. Cisco states that it was developed by qualified industry experts. We find that ANSI C63.17-1998 provides detailed guidance that will assist manufacturers in measuring unlicensed PCS devices to ensure that they comply with the requirements in our rules. Accordingly, we are incorporating this procedure into the rules by reference as the procedure we will use for testing unlicensed PCS equipment under part 15 of the rules.

30. Part 15 currently requires all intentional radiators to be certified, regardless of how low an operating power they use. Certification requires the manufacturer to have the equipment tested for compliance, then file an application and wait for approval before the equipment can be marketed. In the NPRM, the Commission proposed to exempt intentional radiators operating below 490 kHz from certification if the maximum field strength emitted is more than 40 dB below the applicable part 15 limits. As an alternative, the Commission sought comment on whether such devices should be subject to verification rather than exempted from any form of equipment authorization. Verification simply requires the manufacturer to have the equipment tested and to retain certain information on file. No application filing is required for verification and the equipment may be sold as soon as it is found to comply. The Commission stated that the interference potential of such devices appears to be extremely low, and that requiring certification seems to be an unnecessary burden on manufacturers.

31. The comments support eliminating the certification requirement for very low-powered intentional radiators, arguing that it is burdensome and unnecessary. AdvaMed, Cisco, Linear, Polhemus and Uniden argue that such low-powered devices have a low potential for interference. TRP and AdvaMed state that signals 40 dB below the part 15 limit are below the ambient noise level and are difficult to measure. TRP believes that devices operating below 490 kHz that are battery operated with a self-contained antenna of much less than a wavelength should be exempted from any kind of equipment authorization if all emissions are at least 40 dB below the limit. It also believes that devices that have emissions less than 40 dB below the limit and that connect to the AC power lines should be subject to verification, rather than exempted, because they have a somewhat higher potential for interference. TRP states that compliance by low-powered devices can be determined by mathematical calculation and that open field testing is not necessary. However, ITI believes that devices must be tested to show they are at least 40 dB below the limit. It states that once a device is tested, the additional burden imposed by verification is minor in nature. Wacom recommends that the upper frequency range of devices to be exempted should be 1705 kHz instead of 490 kHz, so that devices can use higher frequencies to avoid interference from computer monitors. TIA states that the 490 kHz cutoff is too restrictive, and believes that the Commission should also eliminate the certification requirement for 2.4 GHz Bluetooth transmitters operating with less than 1 mW of power because they must already go through a rigorous private sector certification process for industry acceptance.

32. We find that requiring certification for intentional radiators operating below 490 kHz that have all emissions at least 40 dB below the limit is an unnecessary burden on manufacturers because the interference potential of such equipment is extremely low. Instead, we will require such equipment to be authorized through the verification procedure, thus eliminating the need for manufacturers to file an application and wait for an approval before marketing their equipment. Under the verification procedure, manufacturers may show that all emissions are at least 40 dB below the limit through testing. We recognize, however, that because of the low signal levels involved, it may be difficult to even detect such emissions with conventional measurement equipment. As an alternative to actual measurements, we will allow manufacturers instead to demonstrate through calculations or other analysis that all emissions from their equipment will be at least 40 dB below the limit. We find that it is necessary for manufacturers to make a determination that a device complies with the emission limits to prevent harmful interference to authorized services, and to retain records to demonstrate compliance with the limits. The verification procedure is the most appropriate means to ensure that manufacturers make the necessary determination of compliance and maintain records of this determination.

33. We decline to expand this decision to exempt from certification equipment used in bands above 490 kHz. Wacom provided only assertions and no specific technical information to demonstrate that there would be interference problems from computer monitors to low-power transmitters operating below 490 kHz. In addition we believe that the higher level of oversight of certification is necessary at this time to protect the marine distress band at 495-505 kHz and the AM broadcast band at 535-1705 kHz from interference caused by non-compliant equipment. We decline to exempt intentional radiators from authorization if they are battery operated and all radiated emissions are more than 40 dB below the part 15 limits, as requested by TRP. As noted previously, we find that verification is the appropriate means to ensure that manufacturers make the necessary determination of equipment compliance and maintain records of this determination. We decline to permit intentional radiators operating above 490 kHz that have emissions less than 40 dB below the limit to be authorized through verification procedure, rather than the current certification procedure. As TRP noted, such equipment has a higher potential to cause interference, so we find that the higher level of oversight of certification is necessary. We also decline to exempt other types of devices such as Bluetooth transmitters from certification as TIA requested, because such equipment has a significantly higher potential for causing interference than other low power intentional radiators that we are permitting to be verified, so we find that the higher level of oversight of certification is appropriate for such equipment. TIA has not provided information to show that the private sector certification procedure it cites is comparable to our certification procedure for demonstrating compliance with the rules. We also note that Bluetooth devices operating under 1 mW can already be certificated by private sector Telecommunication Certification Bodies.

34. Part 15 requires certain information to be included in the instruction manual, including a statement that unauthorized modifications to a device could void the user's authority to operate it. In addition, the manual for a digital device must include a warning of the potential for interference to other devices and a list of some steps that could possibly eliminate the interference. In the NPRM , the Commission proposed to permit manufacturers to provide this type of information in the instruction manual in whatever form the manual is supplied. This could be on paper, a computer disk, a CD-ROM or over the Internet. The Commission noted that while the rules originally envisioned that this information would be included in a paper instruction manual, the Commission has permitted this warning information to be provided by alternative means, such as a CD-ROM. It sought comment on whether Internet-delivered manuals create accessibility problems for consumers without Internet access or for groups of consumers for whom obtaining Internet access is difficult. The Commission also sought comment on whether allowing important information to be delivered only over the Internet would result in certain consumers having insufficient access to information, and on whether allowing warnings to be delivered exclusively online would result in a significant reduction in the number of consumers who receive the warnings.

35. Linear supports the proposed change to the user manual requirements because it should make no difference if the manuals are printed on paper, on a CD-ROM or available over the Internet. ITI states that providing warnings and information statements in the same form as the user manual will result in cost savings to the industry. It believes that allowing alternative means of accessing information could enhance access to the disabled community because computers could “read” information to the user or magnify it for easier viewing. CEA, Motorola and TIA support providing flexibility for manufacturers to provide information by paper, disk, CD-ROM or the Internet, but believe that user warning information pertaining to safety aspects of equipment should be required in hard copy form that can be retained because not all users will have access to a computer or the Internet. Cisco states there is no reason to believe that permitting online delivery will limit access because Internet access is not limited, and because manufacturers can and do provide contact information for consumers who desire to obtain manuals and warning statements by traditional means. IBM and ITI believe that information should be allowed to be made available over the Internet only if that is the sole method through which the user manual is supplied and the equipment will be used with Internet access. IBM requests that the proposed changes also apply to § 15.27(a), which requires a statement in the user's manual when special accessories are required for a device to comply with the rules. Nickolaus E. Leggett and Steven Bryant stated that allowing instruction manuals to be provided over the Internet alone should not be permitted because many households have slow Internet access or no Internet access at all.

36. As proposed, we will permit the warning statements required by part 15 to be placed in the instruction manual when the manual is provided in formats other than paper, such as on a computer disk or over the Internet. This change will provide increased flexibility to manufacturers and will result in cost savings to the industry. As ITI notes, allowing alternative means of accessing information could enhance access to the disabled community because computers could “read” information to the user or magnify it for easier viewing. However, we recognize that some persons do not have access to a computer or the Internet, so such persons would not have the capability of reading instruction manuals in alternative forms. Therefore, we will allow warning statements to be provided in alterative forms only when the instruction manual is provided in the same alternative form and the user can reasonably be expected to have the capability to access information in that form. For example, warning statements may be provided in a manual on a CD-ROM or other type of computer disk when no paper manual is provided, and the equipment either has the capability of reading the disk or is used with equipment that is capable of reading the disk. Warning statements may be provided in a manual on the Internet only when the manual is provided solely over the Internet and the equipment will be used with Internet access. We believe that these requirements will help ensure that the part 15 warning statements are accessible to all persons using a given device. We are also making this change applicable to § 15.27(a) as requested by IBM, because that section lists information that must be included in the instruction manual. We note that the Commission's Laboratory sometimes requires manufacturers to provide information in the instruction manual advising users that equipment must be operated at a minimum distance from the body to comply with the RF safety guidelines in the rules. We will allow such statements to be provided in the same manner as the part 15 warning statements. If the instruction manual is provided in an alternative format, manufacturers can provide the RF safety statements information in hard copy form if they choose, but we will not require them to do so.

37. While the Commission did not propose any changes to the general radiated emission limits in part 15 of the rules or to the radiated emission limits that apply outside the Industrial, Scientific and Medical (ISM) bands under part 18 of the rules, several parties filed comments recommending changes to these limits. ITI states that it may be appropriate to increase the part 15 limits in steps above 6 GHz, 10.5 GHz and 15 GHz, but did not recommend specific limits. Linear believes that the current part 15 limit of 500 μV/m at 3 meters above 960 MHz should increase by 3 dB for every doubling of frequency. Sirius Satellite Radio, Inc. (Sirius) requests that we reduce the current part 15 and 18 limits to 8.6 μV/m at 3 meters in the satellite digital audio radio service (SDARS) band. XM Radio, Inc. (XM) requests that we establish a limit in the SDARS band of 18 μV/m at 3 meters for part 15, 18 and 95 devices operating exclusively in vehicles, and a limit of 8.6 μV/m at 3 meters for such devices operating in all other environments. Intersil and Motorola oppose Sirius' and XM's recommended emission limits in the SDARS bands, disputing the methodology used to arrive at the recommended limits. Because the Notice did not include proposals for any changes to the general radiated emission limits for equipment operating under parts 15, 18 or other parts of the rules, we find that the requests made by ITI and Linear to raise the emission limits above 960 MHz are outside the scope of this proceeding. Likewise, we find that the requests by XM and Sirius for tighter emission limits in the SDARS band are also outside the scope of this proceeding.

38. In the NPRM, the Commission proposed additional changes to part 15 of the rules to modify rule sections that needed to be updated to reflect the availability of more recent industry documents, or that needed other minor revisions. The following is a summary of the proposed changes:

• Section 15.31 Measurement standards: remove references to measurement procedures that are no longer used, correct the Commission's mailing address, update the reference to reflect the new ANSI C63.4-2001 measurement procedure and clarify the type of antenna used for radiated measurements below 30 MHz.

• Section 15.118 Cable ready consumer electronics equipment: correct the Commission's mailing address.

• Section 15.120 Program blocking technology requirements for television receivers: correct the Commission's mailing address.

• Section 15.255 Operation in the band 59.0-64.0 GHz: correct the wording in paragraph (b)(5) from “emission limits” to “emission levels”.

39. CEA, IBM, Motorola and TIA support these proposals to update and correct the rules. ITI and Cisco support referencing the C63.4-2001 measurement procedure in place of the C63.4-1992 measurement procedure currently referenced in the rules. They also request that we exclude the use of section 8.2.2 of C63.4, which permits measurements of radiated emissions below 30 MHz to be made with a rod antenna, because the Commission and Telecommunication Certification Bodies only accept measurements made with a calibrated loop antenna. Retlif and ACIL oppose the use of the C63.4-2001 measurement procedure, stating that there will be no consistent application of the new standard for many years because there were wide differences in interpretation of the standard within the committee that approved it. IBM suggests that we permit use of the CISPR 22 measurement procedure below 1 GHz as an alternative to the C63.4 procedure to eliminate the potential for dual testing of products worldwide. IBM also suggests that we adopt the CISPR 22 emission limits as alternatives to our AC power line and radiated emission limits for intentional radiators in §§ 15.207 and 15.209 of the rules. IBM states this could eliminate multiple testing of computers that contain transmitters because our rules permit computers, but not transmitters, to be tested for compliance with the CISPR 22 limits, so multiple tests may be required for one device.

40. We are adopting the changes we proposed to update and correct the rules, including referencing the C63.4-2001 measurement procedure. C63.4-2001 provides clarifications to the measurement procedure and configuration of the equipment under test, but does not contain any significant changes from C63.4-1992 that will affect measurement results. As proposed, we will exclude the use of section 8.2.2 of C63.4-2001 concerning rod antennas because we have found that calibrated loop antennas provide more accurate and repeatable field strength measurements below 30 MHz. Referencing the new procedure is necessary because the C63.4-1992 procedure referenced in our rules is no longer available from the Institute of Electrical and Electronics Engineers (IEEE) Standards Department. We do not accept the recommendation of Retlif and ACIL not to reference C63.4-2001 in the rules. C63.4-2001 has gone through the ANSI review process and has been adopted as an ANSI standard. We decline to specify the use of the CISPR 22 measurement procedure as an alternative to the C63.4 procedure as requested by IBM. We support the concept of a single compliance test for equipment. In this case, though, there are differences between the two procedures and it has not been shown that the procedures produce equivalent measurement results. For example, the CISPR 22 procedure specifies the use of ferrite clamps on some cables on the equipment under test, while the C63.4 procedure does not. We will consider the possibility of recognizing the CISPR 22 procedure as an alternative to the C63.4 procedure, as well as the possibility of accepting the CISPR 22 limits for intentional radiators, at a later time.

41. In the NPRM, the Commission proposed to require that carrier frequency tolerance measurements for Family Radio Service (FRS) transmitters be made over the temperature range of - 20 °C to +50 °C rather than −30 °C to +50 °C. This proposal was intended to correct an inadvertent conflict between the rules and existing Commission measurement practices that arose when the Commission streamlined the equipment authorization procedures in 1998.

42. Cobra Electronics Corporation (Cobra) and Uniden America Corporation (Uniden) support the proposed change. Uniden states that measurements should be required only to −20 °C, because years of experience with radios tested to this temperature show that no adverse consequences have been observed in the real world. Cobra states that millions of FRS units have been produced that were tested to −20 °C with no reported difficulties from the users of the radio, so the rules should be amended to reflect the temperature range over which measurements have been required.

43. We find that −20 °C to +50 °C is the appropriate temperature range for which frequency stability measurements should be made on FRS transmitters. FRS is a very short distance voice communication service intended for facilitating family and group activities, and we do not expect that FRS equipment would be used frequently at temperatures below −20 °C (−4 °F). The relatively low power of this equipment means that there would not be a significant risk of interference even if the carrier frequency were to drift out of tolerance below −20 °C. We note that the −20 °C to +50 °C temperature range is consistent with the requirements in part 15 for low power transmitters that require frequency stability measurements. Finally, as Uniden and Cobra stated, many FRS transmitters have been approved and marketed that have been tested to only −20 °C, and there have been no apparent problems. Accordingly, we are requiring the frequency tolerance of FRS transmitters to be measured over the temperature range of −20 °C to +50 °C, as proposed.

44. In the NPRM, the Commission proposed that a test laboratory that has been accredited by an organization recognized by the Commission would no longer have to file a description of its measurement facilities with the Commission, provided the accrediting organization submitted certain information about the laboratory to the Commission. The information that would have to be submitted would be the laboratory name, address, contact information, scope of accreditation, date of accreditation, and the date by which the accreditation must be renewed. This proposal was intended to reduce the burden on laboratories by eliminating the need for them to file duplicate information with both the Commission and an accrediting organization. The Commission also proposed to clarify the conditions for recognizing the accreditation of laboratories outside the United States. Specifically, laboratories outside the United States would be recognized by the Commission if one of the following two conditions are met: (1) The laboratory has been designated by a foreign authority and recognized by the Commission under the terms of a government-to-government Mutual Recognition Agreement or Arrangement (MRA); or (2) the laboratory has been accredited by an organization whose accreditations are recognized by the Commission.

45. CEA, Cisco, IBM, Motorola and TIA support eliminating the requirement for accredited laboratories to file a description of their measurement facilities with the Commission. These parties state that it is unnecessary for this information to be filed with the Commission because it has already been filed with the accrediting organization. However, Retlif Testing Laboratories (Retlif) and the American Council for Independent Laboratories (ACIL) oppose removing this requirement, stating the change would add costs for the accredited laboratory because the accredited laboratory would have to pay for the accrediting organization to file this information with the Commission. CEA, Cisco, ITI, Motorola and TIA support the proposed criteria for recognizing the accreditations of laboratories outside the United States. Cisco states that the change would be an enormous benefit for companies participating in the global marketplace. ITI states that the proposed change would simplify the conditions under which an accredited laboratory may be accredited for testing to Commission requirements and would be an improvement in the process of obtaining approval to use foreign laboratories for testing for a DoC. IBM and ITI recommend that we recognize the accreditation of foreign laboratories by National Institute of Standards and Technology National Voluntary Laboratory Accreditation Program (NIST NVLAP) or the American Association for Laboratory Accreditation (A2LA). They also believe that the language in the rules should reference “measurement facilities” rather than “open field sites” so as not to preclude the use of semi-anechoic chambers for testing.

46. We are adopting our proposal to not require accredited laboratories to file a description of their measurement facilities with us, provided the accrediting organization has submitted certain information about the laboratories to the Commission. This information must include the laboratory name, address (both the test site address and company mailing address), contact information, the accrediting organization's name, its designation number for the laboratory and the date by which the accreditation must be renewed. In addition, the name of the MRA must be provided for accredited laboratories outside of the United States designated under the terms of a government-to-government MRA. Consistent with the current requirements for filing measurement facility descriptions, the information submitted by the accrediting organization must also include an FCC Registration Number (FRN), which is required for all organizations doing business with the Commission, and a “yes/no” indication as to whether the laboratory will perform testing on a contract basis. This will reduce the burden on accredited laboratories by eliminating the need for them to file duplicate information with the Commission and an accrediting organization.

47. We disagree with Retlif and ACIL that this change would significantly increase costs for laboratories. Accrediting organizations already have the information that we need in their records, and the Commission has developed an electronic system that these organizations can use to quickly and easily transmit the information to us. Further, accrediting organizations currently submit certain information about the laboratories they have accredited in paper form to the Commission, and we do not expect that a change from paper filing to electronic filing of this information will result in any increase in accreditation costs. We are not mandating accreditation for laboratories, and laboratories that are not accredited may continue to use the current procedure for filing test site description information with the Commission to be placed on our test site list.

48. We also are adopting the criteria we proposed for accepting the accreditation of laboratories located outside the United States, which are that the laboratory has been accredited by a foreign authority and recognized by the Commission under the terms of a government-to-government Mutual Recognition Agreement or Arrangement, or that the laboratory has been accredited by an organization whose accreditations are recognized by the Commission. These changes will simplify the conditions for accepting the accreditation of foreign laboratories by eliminating the prohibition on foreign accreditors accrediting laboratories outside their own country. The current rules already permit NVLAP and A2LA to accredit laboratories outside the United States, so there is no need for us to make a change to permit this as requested by IBM and ITI. These changes address the concerns raised by ITI in its petition for reconsideration filed in ET Docket 95-19, so we are in effect granting that petition. We agree with IBM and ITI that the rules should reference “measurement facilities” rather than “open field sites” so as not to preclude the use of semi-anechoic chambers for testing, and the rules we are adopting reflect that recommendation.

49. In the NPRM, the Commission proposed to make additional changes to part 2 of the rules to modify sections that need to be updated to reflect the availability of more recent industry documents, or that needed other minor revisions. We received comments supporting the proposals and are adopting the following changes.

• Section 2.202 Bandwidths: add entries to the table of necessary bandwidth calculations in paragraph (g) for newer digital modulation types.

• Section 2.948 Description of measurement facilities: remove references to expired transition dates and obsolete measurement procedures, update references to reflect the availability of the new ANSI C63.4-2001 measurement procedure, and to correct the Commission's mailing address.

• Section 2.1033 Application for certification: re-designate paragraph 2.1033(c)(17) on composite devices as paragraph 2.1033(d) to correct a numbering error.

• Sections 2.1061 through 2.1065 Filing for Application Reference: remove this procedure because it is not used.

50. In addition to these changes, we are adding the heading “Telecommunication Certification Bodies (TCBs)” prior to § 2.960 of the rules. This change clarifies that the subsequent sections refer to the requirements for TCBs, and are not part of the requirements for verification, which is the last heading prior to § 2.960. Because this is an editorial change, it can be made without notice and comment.

51. In the NPRM, the Commission proposed to delete certain rule sections in part 18 that appear to be unnecessary. We received no comments opposing these proposals, and remain convinced of their propriety. We are therefore adopting the following changes.

• Section 18.103 Organization and applicability of the rules: remove because it duplicates the table of contents for part 18.

• Section 18.105 Other applicable rules: remove because it provides little information and is not necessary.

• Section 18.119 Importation: remove because it duplicates portions of the rules in part 2.

52. In the NPRM, the Commission proposed to correct an error in § 90.203(k) of the rules concerning the certification requirements for equipment used in the Private Land Mobile Radio Service (PLMRS). Specifically, the Commission proposed to delete the requirement that PLMRS transmitters in the 220 MHz band comply with minimum standards for spectral efficiency that was erroneously in this section. This error occurred when a summary of the Report and Order in ET Docket No. 97-94 streamlining the equipment authorization processes was published in the Federal Register. This Report and Order modified § 90.203(k) by changing the term “type acceptance” to “certification” throughout, but made no changes to the rest of the section. For clarity, the rule appendix in the Report and Order showed the entire text of this paragraph as revised. Subsequent to the adoption of the Report and Order, the Commission adopted a Memorandum Opinion and Order in a separate proceeding that also revised § 90.203(k). In that action, the Commission removed the requirement for part 90 transmitters operating in the 220 MHz band to comply with spectral efficiency requirements. While the Memorandum Opinion and Order was adopted and released after the Report and Order , a summary of it was published in the Federal Register before the summary of the Report and Order. Therefore, when the Report and Order was published in the Federal Register, the spectral efficiency requirement that was deleted by the Memorandum Opinion and Order was inadvertently placed back in the rules.

53. On May 23, 2001, M/A-COM Private Radio Systems, Inc. (M/A-COM) filed a Petition for Declaratory Ruling, requesting that we clarify that the spectral efficiency requirement should no longer be in § 90.203(k) of the rules. M/A-COM notes that this section is incorrect because of the two rule making items adopted by the Commission that were published in the Federal Register out of sequence. We are correcting this section by deleting the spectral efficiency requirement that was removed by the Memorandum Opinion and Order , and are therefore in effect granting M/A-COM's petition.

54. Section 95.1115(b) specifies the out-of-band field strength limits for transmitters operating in the Wireless Medical Telemetry Service. We are correcting two typographical errors in this section that arose when the rules were published in the Federal Register. Specifically, we are correcting the field strength units of measurement to read “μV/m”, rather than “μ/m” and “μm” as they currently appear in the rules. Because these are editorial changes, they can be made without notice and comment.

55. As required by the Regulatory Flexibility Act (RFA), 1 an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rule Making and Order, Review of Part 15 and other Parts of the Commission's Rules (NPRM) . 2 The Commission sought written public comments on the proposals in the Notice, including comment on the IRFA. 3 This Final Regulatory Flexibility Analysis conforms to the RFA. 4

56. Section 11 of the Communications Act of 1934, as amended, and section 202(h) of the Telecommunications Act of 1996 require the Commission (1) to review biennially its regulations pertaining to telecommunications service providers and broadcast ownership; and (2) to determine whether economic competition has made those regulations no longer necessary in the public interest. The Commission is directed to modify or repeal any such regulations that it finds are no longer in the public interest.

57. As part of the biennial review for the year 2000, the Commission reviewed its regulations pertaining to telecommunications service providers and broadcast ownership and recommended a number of changes to those rules. While not specifically required by statute, the Commission also reviewed parts 2, 15 and 18 as part of this process.

58. The Second Report and Order and Memorandum Opinion and Order makes several changes to part 15 and other parts of the rules. Specifically, it:

(1) Relaxes the restricted band emission limits for the second and third harmonics of low-power transmitters operating in the 24.0-24.25 GHz band.

(2) Removes the restriction on data transmissions by remote control device because it may hinder the development of new types of devices, and the distinction between control signals and data signals is becoming increasingly blurred.

(3) Relaxes the requirements for radio frequency identification (RFID) systems operating at 13.56 MHz to allow faster data transmission. RFID systems use a small transmitter attached to an item that transmits data identifying the item.

(4) Streamlines the labeling process for equipment authorized under the Declaration of Conformity (DoC) procedure. As equipment becomes smaller, it becomes more difficult to include all the information currently required on the label.

(5) Changes the authorization requirement from certification to verification (no application required) for transmitters operating below 490 kHz in which all emissions are at least 40 dB below the part 15 limit.

(6) Make minor corrections and updates to part 15 and other parts of the rules.

59. None.

60. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 5 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 6 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 7 A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. 8

61. The SBA has developed small business size standards for two pertinent Economic Census categories, “Radio and Television Broadcasting and Communications Equipment” (RTB) and “Other Communications Equipment,” both of which consist of all such companies having 750 or fewer employees. 9 According to Census Bureau data for 1997, there were a total of 1,215 establishments in the first category, total, that had operated for the entire year. 10 Of this total, 1,150 had 499 or fewer employees, and an additional 37 establishments had 500 to 999 employees. 11 Consequently, we estimate that the majority of businesses in the first category are small businesses that may be affected by the rules and policies adopted herein. Concerning the second category, the data for 1997 show that there were a total of 499 establishments that operated for the entire year. 12 Of this total, 491 had 499 or fewer employees, and an additional 3 establishments had 500 to 999 employees. 13 Consequently, we estimate that the majority of businesses in the second category are small businesses that may be affected by the rules and policies adopted herein.

62. The Second Report and Order and Memorandum Opinion and Order streamlines the labeling requirements for equipment authorized under the Declaration of Conformity (DoC) procedure. DoC is a self-approval procedure in which the manufacturer has the equipment tested for compliance at a laboratory accredited to make the required measurements. There is an alternative procedure that allows personal computers to be assembled using compliant motherboards and power supplies with no additional testing required. Equipment that complies with the applicable rules may be marketed without an approval from the Commission, and must be labeled as specified in part 15 of the rules. The Second Report and Order and Memorandum Opinion and Order eliminates the requirement for the phrase “For home or office use” to appear on the label for all equipment subject to DoC. In addition, it eliminates the requirement for the phrase “Tested to comply with FCC standards” to appear on the label for equipment that was tested as a complete unit, although this phrase will still be required on personal computers that were assembled from tested components. These changes will permit smaller labels on equipment. These changes will not be required, and small entities can change labels as they change and upgrade models.

63. The Second Report and Order and Memorandum Opinion and Order incorporates the ANSI C63.17-1998 procedure into the part 15 of the rules by reference as the procedure the Commission will use for testing unlicensed Personal Communication Service (PCS) equipment for compliance. Our rules already provide that unlicensed PCS equipment must comply with a number of specialized technical requirements designed to prevent interference between devices. Specifically, there is a defined “spectrum etiquette” that requires unlicensed PCS transmitters to monitor the spectrum for other users before transmitting, and to use a defined transmission format. There was no procedure listed in the rules for testing unlicensed PCS equipment to these requirements. The American National Standards Institute (ANSI) C63 Committee recently completed work on a procedure for measuring unlicensed PCS equipment, which the Second Report and Order incorporates into the rules as the procedure that the Commission will use.

64. Part 15 referenced the ANSI C63.4-1992 procedure as the one that will be used for testing most intentional and unintentional radiators for compliance with the rules. The ANSI C63 Committee recently completed a minor revision of the ANSI C63.4-1992 procedure that contains a number of clarifications to the testing procedures. The Second Report and Order and Memorandum Opinion and Order references the new C63.4-2001 procedure in place of the older version as the procedure that manufacturers should use for compliance testing.

65. The Second Report and Order and Memorandum Opinion and Order changes the temperature range for frequency stability measurements on transmitters used in the Family Radio Service (FRS) under part 95 of the rules. Most transmitters used in licensed services are required to maintain their carrier frequency within a specified tolerance over a range of voltage and temperature variations to minimize the probability of interference to other users. At the time the FRS was established in 1996, a frequency stability limit was specified for transmitters, but no temperature range was specified. The Commission staff informally interpreted that measurements must be made to -20 degrees centigrade. A 1998 rule change to the equipment authorization requirements unintentionally resulted in a new requirement to measure FRS transmitters to -30 degrees centigrade. However, the staff continued requiring measurements to -20 degrees centigrade in the interest of fairness. To clarify our existing practice, the Second Report and Order and Memorandum Opinion and Order specifically requires that FRS transmitters be measured to -20 degree centigrade as the staff has been requiring since 1996.

66. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 14

67. As noted in section D, supra, the changes adopted in the Second Report and Order and Memorandum Opinion and Order are deregulatory in nature, which we expect will simplify compliance and reporting requirements for all parties, particularly small entities. For example, we reduced the amount of information required on the label for products authorized through the Declaration of Conformity self-approval process. Manufacturers will be permitted to use the simplified label as soon as the rules become effective, but are not required to do so.

68. Report to Congress: The Commission will send a copy of the Second Report and Order and Memorandum Opinion and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the Second Report and Order and Memorandum Opinion and Order, including FRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

69. Pursuant to the authority contained in sections 4(i), 301, 302, 303(e), 303(f) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. Sections 154(i), 301, 302, 303(e), 303(f) and 303(r), this Second Report and Order and Memorandum Opinion and Order is adopted and parts 2, 15, 18, 90 and 95 of the Commission's Rules are amended effective January 8, 2004.

70. Pursuant to the authority contained in sections 4(i), 301, 302, 303(e), 303(f) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302, 303(e), 303(f) and 303(r), the petition for reconsideration filed by the Information Technology Institute in ET Docket No. 95-19 on September 3, 1997, is granted to the extent indicated herein. ET Docket No. 95-19 is terminated.

71. Pursuant to the authority contained in sections 4(i), 301, 302, 303(e), 303(f) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302, 303(e), 303(f) and 303(r), the petition for declaratory ruling filed by M/A-COM Private Radio Systems, Inc. on May 23, 2001, is granted to the extent indicated herein.

This is a synopsis of the Commission's Report and Order, MB Docket No. 02-314, adopted November 14, 2003, and released November 17, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.