Title III of the Energy Policy and Conservation Act (EPCA) sets forth a variety of provisions concerning energy efficiency. Part B of Title III (42 U.S.C. 6291-6309) provides for the “Energy Conservation Program for Consumer Products Other than Automobiles.” Part C of Title III (42 U.S.C. 6311-6317) provides for a program entitled, “Certain Industrial Equipment,” which is similar to the program in Part B, and which includes commercial air conditioning equipment, packaged boilers, water heaters, and other types of commercial equipment.

Today's notice involves commercial equipment under Part C, which specifically provides for definitions, test procedures, labeling requirements, energy conservation standards, and information and reports from manufacturers. With respect to test procedures, Part C generally authorizes the Secretary of Energy to prescribe test procedures that are reasonably designed to produce results that reflect energy efficiency, energy use and estimated annual operating costs, and that are not unduly burdensome to conduct. (42 U.S.C. 6314)

For commercial water heaters, EPCA provides that DOE's test procedure shall be that generally accepted industry test procedure developed or recognized by the Air-Conditioning and Refrigeration Institute (ARI) or by the American Society of Heating, Refrigerating and Air Conditioning Engineers (ASHRAE), as referenced in ASHRAE/Illuminating Engineers Society (IES) Standard 90.1 and in effect on June 30, 1992. (42 U.S.C. 6314(a)(4)(A)) This statute also provides that if this industry test procedure is amended, the Secretary of Energy shall amend DOE's test procedure to be consistent with the amended industry test procedure, unless the Secretary determines that such a modified test procedure does not meet the statutory criteria. (42 U.S.C. 6314(a)(4)(B))

The current DOE test procedure that is applicable to this equipment is the one referenced in the version of ASHRAE/IES 90.1 in effect in 1992, the American National Standards Institute (ANSI)/Canadian Standards Association (CSA) Standard Z21.10.3-1990. In response to ASHRAE's amendment to this standard, the Department issued a Notice of Proposed Rulemaking to adopt an updated test procedure for commercial water heaters, ANSI/CSA Standard Z21.10.3-1998, which is referenced in ASHRAE/IES Standard 90.1-1999. (65 FR 48852, August 9, 2000) The Department, however, has not taken final action with respect to the proposed rule. Thus, the Standard Z21.10.3-1990 remains the applicable test procedure.

In January 2001, the Department adopted the AHSRAE 90.1-1999 energy efficiency standards for commercial gas-fired and oil-fired water heaters as new Federal efficiency standards effective October 29, 2003. (66 FR 3335, January 12, 2001.) Because the Department has not yet issued a final rule on its proposal for an updated test procedure for commercial water heaters, commercial water heater manufacturers must demonstrate compliance with the new energy efficiency standards using the existing DOE test procedure.

The Department is required to make adjustments to its regulations, as necessary, to prevent special hardship, inequity or unfair distribution of burdens. (42 U.S.C. 7194) Currently, the Department has regulatory provisions in 10 CFR 430.27 and 10 CFR 431.29 allowing a waiver from test procedure requirements for covered consumer products and electric motors. There are no specific waiver provisions for other covered commercial equipment. However, the Department proposed waiver provisions for covered commercial equipment on December 13, 1999 (64 FR 69597), as part of the commercial furnace test procedure rule, and the Department expects to publish a final rule codifying this process in 10 CFR 431.201. Until that occurs, DOE will use the waiver provisions for consumer products and electric motors for waivers involving other covered commercial equipment. These waiver provisions are substantively identical.

The waiver provisions allow the Assistant Secretary for Energy Efficiency and Renewable Energy to waive temporarily the test procedures for a particular basic model when a petitioner shows that the basic model contains one or more design characteristics that prevent testing according to the prescribed test procedures, or when the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption as to provide materially inaccurate comparative data. ( See 10 CFR 430.27(a)(1), 10 CFR 431.29(a)(1).) Waivers generally remain in effect until final test procedure amendments become effective, thereby resolving the problem that is the subject of the waiver.

DOE will grant an Interim Waiver if it determines that the applicant will experience economic hardship if the Application for Interim Waiver is denied, if it appears likely that the Petition for Waiver will be granted, and/or the Assistant Secretary determines that it would be desirable for public policy reasons to grant immediate relief pending a determination on the Petition for Waiver. ( See 10 CFR 430.27(g).) An Interim Waiver remains in effect for a period of 180 days or until DOE issues its determination on the Petition for Waiver, whichever is sooner, and may be extended for an additional 180 days, if necessary.

On July 31, 2003, GSW filed a Petition for Waiver and Application for Interim Waiver from the “DOE Uniform Federal Test Procedure for Measuring Efficiency of Commercial Water Heaters,” referenced in the version of ASHRAE 90.1 in effect in 1992, ANSI/CSA Z21.10.3-1990. It requested permission to use ASHRAE Standard 118.1-2003 as an alternate test procedure for its water heating products having the following model numbers: JW80-160N, JW80-199N, JW80-160NH, JW80-199NH, JW100-160N, JW100-199N, JW100-160NH, JW100-199NH, JW70-250N, JW70-300N, JW70-360N, JW70-250NH, JW70-300NH, and JW70-360NH.

In its petition, GSW seeks a waiver from the applicable test procedure because GSW asserts that the current DOE test procedure is incompatible with the new DOE energy efficiency standards, which became effective on October 29, 2003. GSW also states that the above-specified models of water heating products do not meet the new energy efficiency requirements using the current test procedure.

Due to the fact that DOE has experienced delays in publishing a final rule for the test procedure for commercial water heating products, and also recognizes that certain basic models of commercial water heaters are allegedly not compliant with the new energy efficiency standards absent a waiver from the current DOE test procedure, the Department has decided to grant this interim waiver to ensure that such models do not become noncompliant. However, the Department believes the appropriate alternate is the test procedure published in the August 9, 2000, proposed rule, which incorporates by reference ANSI/CSA Standard Z21.10.3-1998, the applicable industry standard referenced by ASHRAE/IES Standard 90.1-1999. EPCA requires the Department, for certain commercial equipment, to amend its test procedures consistent with amended ASHRAE or ARI industry test procedures. (42 U.S.C. 6314(4)(B)) Because ASHRAE Standard 118.1-2003 is not referenced in the amended ASHRAE Standard 90.1-1999, it would be inconsistent with the statutory language of EPCA to use it as an alternate test procedure as GSW requests.

The most significant differences between the protocols presented in the proposed August 9, 2000, DOE test procedure and those presented in ASHRAE Standard 118.1-2003 are the duration requirements for the Standby Loss Test; other differences are minimal. The ANSI/CSA Standard Z21.10.3-1998 test procedure specifies that the Standby Loss Test shall continue until the first cutout occurs following 24 hours from the time data collection is initiated. Because it is possible for some water heaters to not experience the cutout until days beyond the 24 hour limit, the industry test standard, ASHRAE Standard 118.1-2003, includes a 48-hour limit to preclude undue test burdens. The inclusion of a 48-hour provision in the proposed DOE test procedure was suggested by the Gas Appliance Manufacturers Association (GAMA) and the California Energy Commission (CEC) in comments submitted in response to the August 9, 2000, proposed rule. The Department agrees with the need for the additional test duration requirement and believes that the evidence in the record is clear and convincing that without the 48-hour termination provision, the standby loss test procedure in the ANSI/CSA Standard Z21.10.3-1998 can pose undue burdens on manufacturers. Therefore, this waiver authorizes the use of ANSI/CSA Standard Z21.10.3-1998, and regarding the Standby Loss Test in section 2.10 of ANSI/CSA Standard Z21.10.3-1998, adds the requirement that the standby loss test duration shall be the shorter of either, (1) until the first cutout following 24 hours from the initiation of data collection, or (2) until 48 hours from the initiation of data collection if the water heater is not in the heating mode at that time.

After careful consideration of all the material that was submitted by GSW and others, the Department has decided to grant this interim waiver for the public policy reason that it is not desirable to make certain models of commercial water heaters noncompliant with the applicable energy efficiency standards given that the appropriate test procedure is not yet finalized. Hence, it is ordered that:

(1) The “Application for Interim Waiver” filed by GSW is hereby granted for the basic models of water heating equipment as follows: JW80-160N, JW80-199N, JW80-160NH, JW80-199NH, JW100-160N, JW100-199N, JW100-160NH, JW100-199NH, JW70-250N, JW70-300N, JW70-360N, JW70- 250NH, JW70-300NH, and JW70-360NH.

(2) GSW is permitted the use of ANSI/CSA Standard Z21.10.3-1998 to establish compliance with the efficiency standards for its water heating products manufactured after October 29, 2003. Further, regarding the Standby Loss Test, section 2.10 of ANSI/CSA Standard Z21.10.3-1998, the use of an additional test duration requirement is permitted as follows: The standby loss test duration shall be the shorter of either, (i) until the first cutout following 24 hours from the initiation of data collection, or (ii) until 48 hours from the initiation of data collection if the water heater is not in the heating mode at that time.

This Interim Waiver is based upon the presumed validity of statements and all allegations submitted by the company. This Interim Waiver may be removed or modified at any time upon a determination that the factual basis underlying the Application is incorrect.

This Interim Waiver shall remain in effect for a period of 180 days after issuance or until DOE acts on the Petition for Waiver, whichever is sooner, and may be extended for an additional 180-day period, if necessary. DOE is hereby publishing the “Petition for Waiver” in its entirety. ( See 10 CFR 430.27(b).) The Petition contains no confidential information. The Department solicits comments, data, and information respecting the Petition.

Any person submitting written comments to DOE concerning either the Petition for Waiver or Interim Waiver must also send a copy of such comments to the petitioner. 10 CFR 430.27(b)(1)(iv) and 430.27(d).

Title III of the Energy Policy and Conservation Act (EPCA) sets forth a variety of provisions concerning energy efficiency. Part B of Title III (42 U.S.C. 6291-6309) provides for the “Energy Conservation Program for Consumer Products Other than Automobiles.” Part C of Title III (42 U.S.C. 6311-6317) provides for a program entitled, “Certain Industrial Equipment,” which is similar to the program in Part B, and which includes commercial air conditioning equipment, packaged boilers, water heaters, and other types of commercial equipment.

Today's notice involves commercial equipment under Part C, which specifically provides for definitions, test procedures, labeling requirements, energy conservation standards, and information and reports from manufacturers. With respect to test procedures, Part C generally authorizes the Secretary of Energy to prescribe test procedures that are reasonably designed to produce results that reflect energy efficiency, energy use and estimated annual operating costs, and that are not unduly burdensome to conduct. (42 U.S.C. 6314.)

For commercial water heaters, EPCA provides that DOE's test procedure shall be that generally accepted industry test procedure developed or recognized by the Air-Conditioning and Refrigeration Institute (ARI) or by the American Society of Heating, Refrigerating and Air Conditioning Engineers (ASHRAE), as referenced in ASHRAE/Illuminating Engineers Society (IES) Standard 90.1 and in effect on June 30, 1992. (42 U.S.C. 6314(a)(4)(A).) This statute also provides that if this industry test procedure is amended, the Secretary of Energy shall amend DOE's test procedure to be consistent with the amended industry test procedure, unless the Secretary determines that such a modified test procedure does not meet the statutory criteria. (42 U.S.C. 6314(a)(4)(B).)

The current DOE test procedure that is applicable to this equipment is the one referenced in the version of ASHRAE/IES 90.1 in effect in 1992, the American National Standards Institute (ANSI)/Canadian Standards Association (CSA) Standard Z21.10.3-1990. In response to ASHRAE's amendment to this standard, the Department issued a Notice of Proposed Rulemaking to adopt an updated test procedure for commercial water heaters, ANSI/CSA Standard Z21.10.3-1998, which is referenced in ASHRAE/IES Standard 90.1-1999. (65 FR 48852, August 9, 2000) The Department however, has not taken final action with respect to the proposed rule. Thus, the Standard Z21.10.3-1990 remains the applicable test procedure.

In January 2001, the Department adopted the AHSRAE 90.1-1999 energy efficiency standards for commercial gas-fired and oil-fired water heaters as new Federal efficiency standards effective October 29, 2003. (66 FR 3335, January 12, 2001.) Because the Department has not yet issued a final rule on its proposal for an updated test procedure for commercial water heaters, commercial water heater manufacturers must demonstrate compliance with the new energy efficiency standards using the existing DOE test procedure.

The Department is required to make adjustments to its regulations, as necessary, to prevent special hardship, inequity or unfair distribution of burdens. (42 U.S.C. 7194.) Currently, the Department has regulatory provisions in 10 CFR 430.27 and 10 CFR 431.29 allowing a waiver from test procedure requirements for covered consumer products and electric motors. There are no specific waiver provisions for other covered commercial equipment. However, the Department proposed waiver provisions for covered commercial equipment on December 13, 1999 (64 FR 69597), as part of the commercial furnace test procedure rule, and the Department expects to publish a final rule codifying this process in 10 CFR 431.201. Until that occurs, DOE will use the waiver provisions for consumer products and electric motors for waivers involving other covered commercial equipment. These waiver provisions are substantively identical.

The waiver provisions allow the Assistant Secretary for Energy Efficiency and Renewable Energy to waive temporarily the test procedures for a particular basic model when a petitioner shows that the basic model contains one or more design characteristics that prevent testing according to the prescribed test procedures, or when the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption as to provide materially inaccurate comparative data. ( See 10 CFR 430.27 (a)(1), 10 CFR 431.29 (a)(1).) Waivers generally remain in effect until final test procedure amendments become effective, thereby resolving the problem that is the subject of the waiver.

DOE will grant an Interim Waiver if it determines that the applicant will experience economic hardship if the Application for Interim Waiver is denied, if it appears likely that the Petition for Waiver will be granted, and/or the Assistant Secretary determines that it would be desirable for public policy reasons to grant immediate relief pending a determination on the Petition for Waiver. ( See 10 CFR 430.27 (g).) An Interim Waiver remains in effect for a period of 180 days or until DOE issues its determination on the Petition for Waiver, whichever is sooner, and may be extended for an additional 180 days, if necessary.

On July 30, 2003, HTP filed a Petition for Waiver and Application for Interim Waiver from the “DOE Uniform Federal Test Procedure for Measuring Efficiency of Commercial Water Heaters,” referenced in the version of ASHRAE 90.1 in effect in 1992, ANSI/CSA Z21.10.3-1990. It requested permission to use ASHRAE Standard 118.1-2003 as an alternate test procedure for its water heating products having the following model numbers: SSV199-45, SSV160-45, SSV130-45, SSVH130-45, SSV100-45, SSV90-45, SSVH90-45, SSV199-80, SSVH199-80, SSV160-80, SSV130-80, SSV199-119, SSV160-119, SV130-119, SA199-45, SA160-45, SA130-45, SA-90-45, SE199-45, SE199-80, SE199-119, HE45-199, HE45-160, HE45-130, HE45-100, HE80-199, HE80-160, HE80-130, HE119-199, HE119-160, and HE119-130.

In its petition, HTP seeks a waiver from the applicable test procedure because HTP asserts that the current DOE test procedure is incompatible with the new DOE energy efficiency standards, which became effective on October 29, 2003. HTP also states that the above-specified models of water heating products do not meet the new energy efficiency requirements using the current test procedure.

Due to the fact that DOE has experienced delays in publishing a final rule for the test procedure for commercial water heating products, and also recognizes that certain basic models of commercial water heaters are allegedly not compliant with the new energy efficiency standards absent a waiver from the current DOE test procedure, the Department has decided to grant this interim waiver to ensure that such models do not become noncompliant. However, the Department believes the appropriate alternate is the test procedure published in the August 9, 2000, proposed rule, which incorporates by reference ANSI/CSA Standard Z21.10.3-1998, the applicable industry standard referenced by ASHRAE/IES Standard 90.1-1999. EPCA requires the Department, for certain commercial equipment, to amend its test procedures consistent with amended ASHRAE or ARI industry test procedures. (42 U.S.C. 6314(4)(B)) Because ASHRAE Standard 118.1-2003 is not referenced in the amended ASHRAE Standard 90.1-1999, it would be inconsistent with the statutory language of EPCA to use it as an alternate test procedure as HTP requests.

The most significant differences between the protocols presented in the proposed August 9, 2000, DOE test procedure and those presented in ASHRAE Standard 118.1-2003 are the duration requirements for the Standby Loss Test; other differences are minimal. The ANSI/CSA Standard Z21.10.3-1998 test procedure specifies that the Standby Loss Test shall continue until the first cutout occurs following 24 hours from the time data collection is initiated. Because it is possible for some water heaters to not experience the cutout until days beyond the 24 hour limit, the industry test standard, ASHRAE Standard 118.1-2003, includes a 48-hour limit to preclude undue test burdens. The inclusion of a 48-hour provision in the proposed DOE test procedure was suggested by the Gas Appliance Manufacturers Association (GAMA) and the California Energy Commission (CEC) in comments submitted in response to the August 9, 2000, proposed rule. The Department agrees with the need for the additional test duration requirement and believes that the evidence in the record is clear and convincing that without the 48-hour termination provision, the standby loss test procedure in the ANSI/CSA Standard Z21.10.3-1998 can pose undue burdens on manufacturers. Therefore, this waiver authorizes the use of ANSI/CSA Standard Z21.10.3-1998, and regarding the Standby Loss Test in section 2.10 of ANSI/CSA Standard Z21.10.3-1998, adds the requirement that the standby loss test duration shall be the shorter of either, (1) until the first cutout following 24 hours from the initiation of data collection, or (2) until 48 hours from the initiation of data collection if the water heater is not in the heating mode at that time.

After careful consideration of all the material that was submitted by HTP and others, the Department has decided to grant this interim waiver for the public policy reason that it is not desirable to make certain models of commercial water heaters noncompliant with the applicable energy efficiency standards given that the appropriate test procedure is not yet finalized. Hence, it is ordered that:

(1) The “Application for Interim Waiver” filed by HTP is hereby granted for the basic models of water heating equipment as follows: SSV199-45, SSV160-45, SSV130-45, SSVH130-45, SSV100-45, SSV90-45, SSVH90-45, SSV199-80, SSVH199-80, SSV160-80, SSV130-80, SSV199-119, SSV160-119, SV130-119, SA199-45, SA160-45, SA130-45, SA-90-45, SE199-45, SE199-80, SE199-119, HE45-199, HE45-160, HE45-130, HE45-100, HE80-199, HE80-160, HE80-130, HE119-199, HE119-160, and HE119-130.

(2) HTP is permitted the use of ANSI/CSA Standard Z21.10.3-1998 to establish compliance with the efficiency standards for its water heating products manufactured after October 29, 2003. Further, regarding the Standby Loss Test, section 2.10 of ANSI/CSA Standard Z21.10.3-1998, the use of an additional test duration requirement is permitted as follows: The standby loss test duration shall be the shorter of either, (i) until the first cutout following 24 hours from the initiation of data collection, or (ii) until 48 hours from the initiation of data collection if the water heater is not in the heating mode at that time.

This Interim Waiver is based upon the presumed validity of statements and all allegations submitted by the company. This Interim Waiver may be removed or modified at any time upon a determination that the factual basis underlying the Application is incorrect.

This Interim Waiver shall remain in effect for a period of 180 days after issuance or until DOE acts on the Petition for Waiver, whichever is sooner, and may be extended for an additional 180-day period, if necessary. DOE is hereby publishing the “Petition for Waiver” in its entirety. ( See 10 CFR 430.27(b).) The Petition contains no confidential information. The Department solicits comments, data, and information respecting the Petition.

Any person submitting written comments to DOE concerning either the Petition for Waiver or Interim Waiver must also send a copy of such comments to the petitioner. 10 CFR 430.27(b)(1)(iv) and 430.27(d).

Title III of the Energy Policy and Conservation Act (EPCA) sets forth a variety of provisions concerning energy efficiency. Part B of Title III (42 U.S.C. 6291-6309) provides for the “Energy Conservation Program for Consumer Products Other than Automobiles.” Part C of Title III (42 U.S.C. 6311-6317) provides for a program entitled, “Certain Industrial Equipment,” which is similar to the program in Part B, and which includes commercial air conditioning equipment, package boilers, water heaters, and other types of commercial equipment.

Today's notice involves commercial equipment under Part C, which specifically provides for definitions, test procedures, labeling requirements, energy conservation standards, and information and reports from manufacturers. With respect to test procedures, Part C generally authorizes the Secretary of Energy to prescribe test procedures that are reasonably designed to produce results that reflect energy efficiency, energy use and estimated annual operating costs, and that are not unduly burdensome to conduct. (42 U.S.C. 6314)

For commercial water heaters, EPCA provides that DOE's test procedure shall be that generally accepted industry test procedure developed or recognized by the Air-Conditioning and Refrigeration Institute (ARI) or by the American Society of Heating, Refrigerating and Air Conditioning Engineers (ASHRAE), as referenced in ASHRAE/Illuminating Engineers Society (IES) Standard 90.1 and in effect on June 30, 1992. (42 U.S.C. 6314(a)(4)(A)) This statute also provides that if this industry test procedure is amended, the Secretary of Energy shall amend DOE's test procedure to be consistent with the amended industry test procedure, unless the Secretary determines that such a modified test procedure does not meet the statutory criteria. (42 U.S.C. 6314(a)(4)(B))

The current DOE test procedure that is applicable to this equipment is the one referenced in the version of ASHRAE/IES 90.1 in effect in 1992, the American National Standards Institute (ANSI)/Canadian Standards Association (CSA) Standard Z21.10.3-1990. In response to ASHRAE's amendment to this standard, the Department issued a Notice of Proposed Rulemaking to adopt an updated test procedure for commercial water heaters, ANSI/CSA Standard Z21.10.3-1998, which is referenced in ASHRAE/IES Standard 90.1-1999. (65 FR 48852, August 9, 2000) The Department however, has not taken final action with respect to the proposed rule. Thus, the Standard Z21.10.3-1990 remains the applicable test procedure.

In January 2001, the Department adopted the ASHRAE 90.1-1999 energy efficiency standards for commercial gas-fired and oil-fired water heaters as new Federal efficiency standards effective October 29, 2003. (66 FR 3335, January 12, 2001.) Because the Department has not yet issued a final rule on its proposal for an updated test procedure for commercial water heaters, commercial water heater manufacturers must demonstrate compliance with the new energy efficiency standards using the existing DOE test procedure.

The Department is required to make adjustments to its regulations, as necessary, to prevent special hardship, inequity or unfair distribution of burdens. (42 U.S.C. 7194) Currently, the Department has regulatory provisions in 10 CFR 430.27 and 10 CFR 431.29 allowing a waiver from test procedure requirements for covered consumer products and electric motors. There are no specific waiver provisions for other covered commercial equipment. However, the Department proposed waiver provisions for covered commercial equipment on December 13, 1999 (64 FR 69597), as part of the commercial furnace test procedure rule, and the Department expects to publish a final rule codifying this process in 10 CFR 431.201. Until that occurs, DOE will use the waiver provisions for consumer products and electric motors for waivers involving other covered commercial equipment. These waiver provisions are substantively identical.

The waiver provisions allow the Assistant Secretary for Energy Efficiency and Renewable Energy to waive temporarily the test procedures for a particular basic model when a petitioner shows that the basic model contains one or more design characteristics that prevent testing according to the prescribed test procedures, or when the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption as to provide materially inaccurate comparative data. ( See 10 CFR 430.27 (a)(1), 10 CFR 431.29 (a)(1).) Waivers generally remain in effect until final test procedure amendments become effective, thereby resolving the problem that is the subject of the waiver.

DOE will grant an Interim Waiver if it determines that the applicant will experience economic hardship if the Application for Interim Waiver is denied, if it appears likely that the Petition for Waiver will be granted, and/or the Assistant Secretary determines that it would be desirable for public policy reasons to grant immediate relief pending a determination on the Petition for Waiver. ( See 10 CFR 430.27 (g).) An Interim Waiver remains in effect for a period of 180 days or until DOE issues its determination on the Petition for Waiver, whichever is sooner, and may be extended for an additional 180 days, if necessary.

On September 2, 2003, RWH filed a Petition for Waiver and Application for Interim Waiver from the “DOE Uniform Federal Test Procedure for Measuring Efficiency of Commercial Water Heaters,” referenced in the version of ASHRAE 90.1 in effect in 1992, ANSI/CSA Z21.10.3-1990. It requested permission to use ANSI/CSA Z21.10.3-1998 as an alternate test procedure for its water heating products having the following model numbers: *50-98, *75-125, *82-156, *37-160, *76-180, *37-200, *76-200, *91-200, *100-200**, *72-250**, *100-250*, 100-270**, *72-300**, *91-300**, *100-310**, *65-360**, *65-400**, *85-400**, *100-400**, GX90-550**, GX90-640**, GX90-715**, GX90-500**, GX90-600**, and GX90-680** for which, RWH states, “The * may be replaced by a ‘G’, ‘GN’, ‘T’ or ‘TN’ which represents trade brands of Rheem (G) and Richmond (T). (N) represents a natural gas only model. The ** may be replaced by an ‘A’ which represents ASME.”

In its petition, RWH seeks a waiver from the applicable test procedure because RWH asserts that the current DOE test procedure is incompatible with the new DOE energy efficiency standards, which became effective on October 29, 2003. RWH also states that the above-specified models of water heating products do not meet the new energy efficiency requirements using the current test procedure.

Due to the fact that DOE has experienced delays in publishing a final rule for the test procedure for commercial water heating products, and also recognizes that certain basic models of commercial water heaters are allegedly not compliant with the new energy efficiency standards absent a waiver from the current DOE test procedure, the Department has decided to grant this interim waiver to ensure that such models do not become noncompliant. The Department believes the appropriate alternate is the test procedure published in the August 9, 2000, proposed rule, which incorporates by reference ANSI/CSA Standard Z21.10.3-1998, the applicable industry standard referenced by ASHRAE/IES Standard 90.1-1999. EPCA requires the Department, for certain commercial equipment, to amend its test procedures consistent with amended ASHRAE or ARI industry test procedures. (42 U.S.C. 6314(4)(B))

The most significant differences between the protocols presented in the proposed August 9, 2000, DOE test procedure and the current DOE test procedure, ANSI/CSA Z21.10.3-1990, are the duration requirements for the Standby Loss Test; other differences are minimal. The ANSI/CSA Standard Z21.10.3-1998 test procedure specifies that the Standby Loss Test shall continue until the first cutout occurs following 24 hours from the time data collection is initiated. This 24-hour requirement was created to reduce test burdens; the duration requirement specified in the ANSI/CSA Z21.10.3-1990 test procedure is 48 hours minimum. However, because it is possible for some water heaters to not experience the cutout until days beyond the 24 hour limit, a newer industry test standard, ASHRAE Standard 118.1-2003, which ASHRAE Standard 90.1 currently does not reference, includes a 48-hour limit to preclude undue test burdens. The inclusion of a 48-hour provision in the DOE test procedure was suggested by the Gas Appliance Manufacturers Association (GAMA) and the California Energy Commission (CEC) in comments submitted in response to the August 9, 2000, proposed rule. The Department agrees with the need for the additional test duration requirement and believes that the evidence in the record is clear and convincing that without the 48-hour termination provision, the standby loss test procedure in the ANSI/CSA Standard Z21.10.3-1998 can pose undue burdens on manufacturers. Therefore, this waiver authorizes the use of ANSI/CSA Standard Z21.10.3-1998, and regarding the Standby Loss Test in section 2.10 of ANSI/CSA Standard Z21.10.3-1998, adds the requirement that the standby loss test duration shall be the shorter of either, (1) until the first cutout following 24 hours from the initiation of data collection, or (2) until 48 hours from the initiation of data collection if the water heater is not in the heating mode at that time.

After careful consideration of all the material that was submitted by RWH and others, the Department has decided to grant this interim waiver for the public policy reason that it is not desirable to make certain models of commercial water heaters noncompliant with the applicable energy efficiency standards given that the appropriate test procedure is not yet finalized. Hence, it is ordered that:

(1) The “Application for Interim Waiver” filed by RWH is hereby granted for the basic models of water heating equipment as follows: *50-98, *75-125, *82-156, *37-160, *76-180, *37-200, *76-200, *91-200, *100-200**, *72-250**, *100-250*, 100-270**, *72-300**, *91-300**, *100-310**, *65-360**, *65-400**, *85-400**, *100-400**, GX90-550**, GX90-640**, GX90-715**, GX90-500**, GX90-600**, and GX90-680** for which, RWH states, “The * may be replaced by a ‘G’, ‘GN’, ‘T’ or ‘TN’ which represents trade brands of Rheem (G) and Richmond (T). (N) represents a natural gas only model. The ** may be replaced by an ‘A’ which represents ASME.”

(2) RWH is permitted the use of ANSI/CSA Standard Z21.10.3-1998 to establish compliance with the efficiency standards for its water heating products manufactured after October 29, 2003. Further, regarding the Standby Loss Test, section 2.10 of ANSI/CSA Standard Z21.10.3-1998, the use of an additional test duration requirement is permitted as follows: The standby loss test duration shall be the shorter of either, (i) until the first cutout following 24 hours from the initiation of data collection, or (ii) until 48 hours from the initiation of data collection if the water heater is not in the heating mode at that time.

This Interim Waiver is based upon the presumed validity of statements and all allegations submitted by the company. This Interim Waiver may be removed or modified at any time upon a determination that the factual basis underlying the Application is incorrect.

This Interim Waiver shall remain in effect for a period of 180 days after issuance or until DOE acts on the Petition for Waiver, whichever is sooner, and may be extended for an additional 180-day period, if necessary. DOE is hereby publishing the “Petition for Waiver” in its entirety. ( See 10 CFR 430.27(b).) The Petition contains no confidential information. The Department solicits comments, data, and information respecting the Petition.

Any person submitting written comments to DOE concerning either the Petition for Waiver or Interim Waiver must also send a copy of such comments to the petitioner. 10 CFR 430.27(b)(1)(iv) and 430.27(d).

Title III of the Energy Policy and Conservation Act (EPCA) sets forth a variety of provisions concerning energy efficiency. Part B of Title III (42 U.S.C. 6291-6309) provides for the “Energy Conservation Program for Consumer Products Other than Automobiles.” Part C of Title III (42 U.S.C. 6311-6317) provides for a program entitled, “Certain Industrial Equipment,” which is similar to the program in Part B, and which includes commercial air conditioning equipment, packaged boilers, water heaters, and other types of commercial equipment.

Today's notice involves commercial equipment under Part C, which specifically provides for definitions, test procedures, labeling requirements, energy conservation standards, and information and reports from manufacturers. With respect to test procedures, Part C generally authorizes the Secretary of Energy to prescribe test procedures that are reasonably designed to produce results that reflect energy efficiency, energy use and estimated annual operating costs, and that are not unduly burdensome to conduct. (42 U.S.C. 6314)

For commercial water heaters, EPCA provides that DOE's test procedure shall be that generally accepted industry test procedure developed or recognized by the Air-Conditioning and Refrigeration Institute (ARI) or by the American Society of Heating, Refrigerating and Air Conditioning Engineers (ASHRAE), as referenced in ASHRAE/Illuminating Engineers Society (IES) Standard 90.1 and in effect on June 30, 1992. (42 U.S.C. 6314(a)(4)(A)) This statute also provides that if this industry test procedure is amended, the Secretary of Energy shall amend DOE's test procedure to be consistent with the amended industry test procedure, unless the Secretary determines that such a modified test procedure does not meet the statutory criteria. (42 U.S.C. 6314(a)(4)(B))

The current DOE test procedure that is applicable to this equipment is the one referenced in the version of ASHRAE/IES 90.1 in effect in 1992, the American National Standards Institute (ANSI)/Canadian Standards Association (CSA) Standard Z21.10.3-1990. In response to ASHRAE's amendment to this standard, the Department issued a Notice of Proposed Rulemaking to adopt an updated test procedure for commercial water heaters, ANSI/CSA Standard Z21.10.3-1998, which is referenced in ASHRAE/IES Standard 90.1-1999. (65 FR 48852, August 9, 2000) The Department however, has not taken final action with respect to the proposed rule. Thus, the Standard Z21.10.3-1990 remains the applicable test procedure.

In January 2001, the Department adopted the AHSRAE 90.1-1999 energy efficiency standards for commercial gas-fired and oil-fired water heaters as new Federal efficiency standards effective October 29, 2003. (66 FR 3335, January 12, 2001) Because the Department has not yet issued a final rule on its proposal for an updated test procedure for commercial water heaters, commercial water heater manufacturers must demonstrate compliance with the new energy efficiency standards using the existing DOE test procedure.

The Department is required to make adjustments to its regulations, as necessary, to prevent special hardship, inequity or unfair distribution of burdens. (42 U.S.C. 7194) Currently, the Department has regulatory provisions in 10 CFR 430.27 and 10 CFR 431.29 allowing a waiver from test procedure requirements for covered consumer products and electric motors. There are no specific waiver provisions for other covered commercial equipment. However, the Department proposed waiver provisions for covered commercial equipment on December 13, 1999 (64 FR 69597), as part of the commercial furnace test procedure rule, and the Department expects to publish a final rule codifying this process in 10 CFR 431.201. Until that occurs, DOE will use the waiver provisions for consumer products and electric motors for waivers involving other covered commercial equipment. These waiver provisions are substantively identical.

The waiver provisions allow the Assistant Secretary for Energy Efficiency and Renewable Energy to waive temporarily the test procedures for a particular basic model when a petitioner shows that the basic model contains one or more design characteristics that prevent testing according to the prescribed test procedures, or when the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption as to provide materially inaccurate comparative data. (See 10 CFR 430.27 (a)(1), 10 CFR 431.29 (a)(1).) Waivers generally remain in effect until final test procedure amendments become effective, thereby resolving the problem that is the subject of the waiver.

DOE will grant an Interim Waiver if it determines that the applicant will experience economic hardship if the Application for Interim Waiver is denied, if it appears likely that the Petition for Waiver will be granted, and/or the Assistant Secretary determines that it would be desirable for public policy reasons to grant immediate relief pending a determination on the Petition for Waiver. (See 10 CFR 430.27 (g).) An Interim Waiver remains in effect for a period of 180 days or until DOE issues its determination on the Petition for Waiver, whichever is sooner, and may be extended for an additional 180 days, if necessary.

On September 10, 2003, BWH filed a Petition for Waiver and Application for Interim Waiver from the “DOE Uniform Federal Test Procedure for Measuring Efficiency of Commercial Water Heaters,” referenced in the version of ASHRAE 90.1 in effect in 1992, ANSI/CSA Z21.10.3-1990. It requested permission to use ASHRAE Standard 118.1-2003 as an alternate test procedure for its water heating products having the following model numbers: 71PG, 120PG, 190PG, 241PG, 361PG, 70G-190SD, 75G-145D/SD, and 100G-180SD.

In its petition, BWH seeks a waiver from the applicable test procedure because BWH asserts that the current DOE test procedure is incompatible with the new DOE energy efficiency standards, which became effective on October 29, 2003. BWH also states that the above-specified models of water heating products do not meet the new energy efficiency requirements using the current test procedure.

Due to the fact that DOE has experienced delays in publishing a final rule for the test procedure for commercial water heating products, and also recognizes that certain basic models of commercial water heaters are allegedly not compliant with the new energy efficiency standards absent a waiver from the current DOE test procedure, the Department has decided to grant this interim waiver to ensure that such models do not become noncompliant. However, the Department believes the appropriate alternate is the test procedure published in the August 9, 2000, proposed rule, which incorporates by reference ANSI/CSA Standard Z21.10.3-1998, the applicable industry standard referenced by ASHRAE/IES Standard 90.1-1999. EPCA requires the Department, for certain commercial equipment, to amend its test procedures consistent with amended ASHRAE or ARI industry test procedures. (42 U.S.C. 6314(4)(B)) Because ASHRAE Standard 118.1-2003 is not referenced in the amended ASHRAE Standard 90.1-1999, it would be inconsistent with the statutory language of EPCA to use it as an alternate test procedure as BWH requests.

The most significant differences between the protocols presented in the proposed August 9, 2000, DOE test procedure and those presented in ASHRAE Standard 118.1-2003 are the duration requirements for the Standby Loss Test; other differences are minimal. The ANSI/CSA Standard Z21.10.3-1998 test procedure specifies that the Standby Loss Test shall continue until the first cutout occurs following 24 hours from the time data collection is initiated. Because it is possible for some water heaters to not experience the cutout until days beyond the 24 hour limit, the industry test standard, ASHRAE Standard 118.1-2003, includes a 48-hour limit to preclude undue test burdens. The inclusion of a 48-hour provision in the proposed DOE test procedure was suggested by the Gas Appliance Manufacturers Association (GAMA) and the California Energy Commission (CEC) in comments submitted in response to the August 9, 2000, proposed rule. The Department agrees with the need for the additional test duration requirement and believes that the evidence in the record is clear and convincing that without the 48-hour termination provision, the standby loss test procedure in the ANSI/CSA Standard Z21.10.3-1998 can pose undue burdens on manufacturers. Therefore, this waiver authorizes the use of ANSI/CSA Standard Z21.10.3-1998, and regarding the Standby Loss Test in section 2.10 of ANSI/CSA Standard Z21.10.3-1998, adds the requirement that the standby loss test duration shall be the shorter of either, (1) until the first cutout following 24 hours from the initiation of data collection, or (2) until 48 hours from the initiation of data collection if the water heater is not in the heating mode at that time.

After careful consideration of all the material that was submitted by BWH and others, the Department has decided to grant this interim waiver for the public policy reason that it is not desirable to make certain models of commercial water heaters noncompliant with the applicable energy efficiency standards given that the appropriate test procedure is not yet finalized. Hence, it is ordered that:

(1) The “Application for Interim Waiver” filed by BWH is hereby granted for the basic models of water heating equipment as follows: 71PG, 120PG, 190PG, 241PG, 361PG, 70G-190SD, 75G-145D/SD, and 100G-180SD.

(2) BWH is permitted the use of ANSI/CSA Standard Z21.10.3-1998 to establish compliance with the efficiency standards for its water heating products manufactured after October 29, 2003. Further, regarding the Standby Loss Test, section 2.10 of ANSI/CSA Standard Z21.10.3-1998, the use of an additional test duration requirement is permitted as follows: The standby loss test duration shall be the shorter of either, (i) until the first cutout following 24 hours from the initiation of data collection, or (ii) until 48 hours from the initiation of data collection if the water heater is not in the heating mode at that time.

This Interim Waiver is based upon the presumed validity of statements and all allegations submitted by the company. This Interim Waiver may be removed or modified at any time upon a determination that the factual basis underlying the Application is incorrect.

This Interim Waiver shall remain in effect for a period of 180 days after issuance or until DOE acts on the Petition for Waiver, whichever is sooner, and may be extended for an additional 180-day period, if necessary. DOE is hereby publishing the “Petition for Waiver” in its entirety. (See 10 CFR 430.27(b)) The Petition contains no confidential information. The Department solicits comments, data, and information respecting the Petition.

Any person submitting written comments to DOE concerning either the Petition for Waiver or Interim Waiver must also send a copy of such comments to the petitioner. 10 CFR 430.27(b)(1)(iv) and 430.27(d).

Title III of the Energy Policy and Conservation Act (EPCA) sets forth a variety of provisions concerning energy efficiency. Part B of Title III (42 U.S.C. 6291-6309) provides for the “Energy Conservation Program for Consumer Products Other than Automobiles.” Part C of Title III (42 U.S.C. 6311-6317) provides for a program entitled, “Certain Industrial Equipment,” which is similar to the program in Part B, and which includes commercial air conditioning equipment, packaged boilers, water heaters, and other types of commercial equipment.

Today's notice involves commercial equipment under Part C, which specifically provides for definitions, test procedures, labeling requirements, energy conservation standards, and information and reports from manufacturers. With respect to test procedures, Part C generally authorizes the Secretary of Energy to prescribe test procedures that are reasonably designed to produce results that reflect energy efficiency, energy use and estimated annual operating costs, and that are not unduly burdensome to conduct. (42 U.S.C. 6314)

For commercial water heaters, EPCA provides that DOE's test procedure shall be that generally accepted industry test procedure developed or recognized by the Air-Conditioning and Refrigeration Institute (ARI) or by the American Society of Heating, Refrigerating and Air Conditioning Engineers (ASHRAE), as referenced in ASHRAE/Illuminating Engineers Society (IES) Standard 90.1 and in effect on June 30, 1992. (42 U.S.C. 6314(a)(4)(A)) This statute also provides that if this industry test procedure is amended, the Secretary of Energy shall amend DOE's test procedure to be consistent with the amended industry test procedure, unless the Secretary determines that such a modified test procedure does not meet the statutory criteria. (42 U.S.C. 6314(a)(4)(B))

The current DOE test procedure that is applicable to this equipment is the one referenced in the version of ASHRAE/IES 90.1 in effect in 1992, the American National Standards Institute (ANSI)/Canadian Standards Association (CSA) Standard Z21.10.3-1990. In response to ASHRAE's amendment to this standard, the Department issued a Notice of Proposed Rulemaking to adopt an updated test procedure for commercial water heaters, ANSI/CSA Standard Z21.10.3-1998, which is referenced in ASHRAE/IES Standard 90.1-1999. (65 FR 48852, August 9, 2000) The Department however, has not taken final action with respect to the proposed rule. Thus, the Standard Z21.10.3-1990 remains the applicable test procedure.

In January 2001, the Department adopted the AHSRAE 90.1-1999 energy efficiency standards for commercial gas-fired and oil-fired water heaters as new Federal efficiency standards effective October 29, 2003. (66 FR 3335, January 12, 2001) Because the Department has not yet issued a final rule on its proposal for an updated test procedure for commercial water heaters, commercial water heater manufacturers must demonstrate compliance with the new energy efficiency standards using the existing DOE test procedure.

The Department is required to make adjustments to its regulations, as necessary, to prevent special hardship, inequity or unfair distribution of burdens. (42 U.S.C. 7194) Currently, the Department has regulatory provisions in 10 CFR 430.27 and 10 CFR 431.29 allowing a waiver from test procedure requirements for covered consumer products and electric motors. There are no specific waiver provisions for other covered commercial equipment. However, the Department proposed waiver provisions for covered commercial equipment on December 13, 1999 (64 FR 69597), as part of the commercial furnace test procedure rule, and the Department expects to publish a final rule codifying this process in 10 CFR 431.201. Until that occurs, DOE will use the waiver provisions for consumer products and electric motors for waivers involving other covered commercial equipment. These waiver provisions are substantively identical.

The waiver provisions allow the Assistant Secretary for Energy Efficiency and Renewable Energy to waive temporarily the test procedures for a particular basic model when a petitioner shows that the basic model contains one or more design characteristics that prevent testing according to the prescribed test procedures, or when the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption as to provide materially inaccurate comparative data. ( See 10 CFR 430.27(a)(1), 10 CFR 431.29(a)(1).) Waivers generally remain in effect until final test procedure amendments become effective, thereby resolving the problem that is the subject of the waiver.

DOE will grant an Interim Waiver if it determines that the applicant will experience economic hardship if the Application for Interim Waiver is denied, if it appears likely that the Petition for Waiver will be granted, and/or the Assistant Secretary determines that it would be desirable for public policy reasons to grant immediate relief pending a determination on the Petition for Waiver. ( See 10 CFR 430.27(g).) An Interim Waiver remains in effect for a period of 180 days or until DOE issues its determination on the Petition for Waiver, whichever is sooner, and may be extended for an additional 180 days, if necessary.

On August 6, 2003, AOS filed a Petition for Waiver and Application for Interim Waiver from the “DOE Uniform Federal Test Procedure for Measuring Efficiency of Commercial Water Heaters,” referenced in the version of ASHRAE 90.1 in effect in 1992, ANSI/CSA Z21.10.3-1990. It requested permission to use ASHRAE Standard 118.1-2003 as an alternate test procedure for its water heating products having the following model numbers: BTF-75, BT-80, BT-100, BTI-80, BTI-100, BTN-80, BTN-100, BTP-140-140, BTP-140-199, BTP-140-255, BTH-300-970, COF-199, COF245, COF-315, COF-455, BTI-120-10075, BTI-154-10075, BTI-180-10075, BTI-199-10075, BTI-200-10075, BTI-250-10075, BTI-275-10075, BTI-310-10075, BTI-366-10075, BTI-400-10075, BTN-180-10475, BTN-310-10075, BTR-15475, BTR-18075, BTR-19775, BTR-19875, BTR-19975, and BTR-20075.

In its petition, AOS seeks a waiver from the applicable test procedure because AOS asserts that the current DOE test procedure is incompatible with the new DOE energy efficiency standards, which became effective on October 29, 2003. AOS also states that the above-specified models of water heating products do not meet the new energy efficiency requirements using the current test procedure.

Due to the fact that DOE has experienced delays in publishing a final rule for the test procedure for commercial water heating products, and also recognizes that certain basic models of commercial water heaters are allegedly not compliant with the new energy efficiency standards absent a waiver from the current DOE test procedure, the Department has decided to grant this interim waiver to ensure that such models do not become noncompliant. However, the Department believes the appropriate alternate is the test procedure published in the August 9, 2000, proposed rule, which incorporates by reference ANSI/CSA Standard Z21.10.3-1998, the applicable industry standard referenced by ASHRAE/IES Standard 90.1-1999. EPCA requires the Department, for certain commercial equipment, to amend its test procedures consistent with amended ASHRAE or ARI industry test procedures. (42 U.S.C. 6314(4)(B)) Because ASHRAE Standard 118.1-2003 is not referenced in the amended ASHRAE Standard 90.1-1999, it would be inconsistent with the statutory language of EPCA to use it as an alternate test procedure as AOS requests.

The most significant differences between the protocols presented in the proposed August 9, 2000, DOE test procedure and those presented in ASHRAE Standard 118.1-2003 are the duration requirements for the Standby Loss Test; other differences are minimal. The ANSI/CSA Standard Z21.10.3-1998 test procedure specifies that the Standby Loss Test shall continue until the first cutout occurs following 24 hours from the time data collection is initiated. Because it is possible for some water heaters to not experience the cutout until days beyond the 24 hour limit, the industry test standard, ASHRAE Standard 118.1-2003, includes a 48-hour limit to preclude undue test burdens. The inclusion of a 48-hour provision in the proposed DOE test procedure was suggested by the Gas Appliance Manufacturers Association (GAMA) and the California Energy Commission (CEC) in comments submitted in response to the August 9, 2000, proposed rule. The Department agrees with the need for the additional test duration requirement and believes that the evidence in the record is clear and convincing that without the 48-hour termination provision, the standby loss test procedure in the ANSI/CSA Standard Z21.10.3-1998 can pose undue burdens on manufacturers. Therefore, this waiver authorizes the use of ANSI/CSA Standard Z21.10.3-1998, and regarding the Standby Loss Test in section 2.10 of ANSI/CSA Standard Z21.10.3-1998, adds the requirement that the standby loss test duration shall be the shorter of either, (1) until the first cutout following 24 hours from the initiation of data collection, or (2) until 48 hours from the initiation of data collection if the water heater is not in the heating mode at that time.

After careful consideration of all the material that was submitted by AOS and others, the Department has decided to grant this interim waiver for the public policy reason that it is not desirable to make certain models of commercial water heaters noncompliant with the applicable energy efficiency standards given that the appropriate test procedure is not yet finalized. Hence, it is ordered that:

(1) The “Application for Interim Waiver” filed by AOS is hereby granted for the basic models of water heating equipment as follows:

BTF-75, BT-80, BT-100, BTI-80, BTI-100, BTN-80, BTN-100, BTP-140-140, BTP-140-199, BTP-140-255, BTH-300-970, COF-199, COF245, COF-315, COF-455, BTI-120-10075, BTI-154-10075, BTI-180-10075, BTI-199-10075, BTI-200-10075, BTI-250-10075, BTI-275-10075, BTI-310-10075, BTI-366-10075, BTI-400-10075, BTN-180-10475, BTN-310-10075, BTR-15475, BTR-18075, BTR-19775, BTR-19875, BTR-19975, and BTR-20075.

(2) AOS is permitted the use of ANSI/CSA Standard Z21.10.3-1998 to establish compliance with the efficiency standards for its water heating products manufactured after October 29, 2003. Further, regarding the Standby Loss Test, section 2.10 of ANSI/CSA Standard Z21.10.3-1998, the use of an additional test duration requirement is permitted as follows: The standby loss test duration shall be the shorter of either, (i) until the first cutout following 24 hours from the initiation of data collection, or (ii) until 48 hours from the initiation of data collection if the water heater is not in the heating mode at that time.

This Interim Waiver is based upon the presumed validity of statements and all allegations submitted by the company. This Interim Waiver may be removed or modified at any time upon a determination that the factual basis underlying the Application is incorrect.

This Interim Waiver shall remain in effect for a period of 180 days after issuance or until DOE acts on the Petition for Waiver, whichever is sooner, and may be extended for an additional 180-day period, if necessary. DOE is hereby publishing the “Petition for Waiver” in its entirety. ( See 10 CFR 430.27(b).) The Petition contains no confidential information. The Department solicits comments, data, and information respecting the Petition.

Any person submitting written comments to DOE concerning either the Petition for Waiver or Interim Waiver must also send a copy of such comments to the petitioner. 10 CFR 430.27(b)(1)(iv) and 430.27(d).

* * * The Milwaukee office of the Federal Reserve Bank of Chicago will also cease processing checks on July 24, 2004, and banks with routing symbols currently assigned to that office for check processing purposes will be reassigned to the head office of the Federal Reserve Bank of Chicago. * * *

* * * To coincide with the effective date of the underlying check processing changes, the amendments are effective July 24, 2004. * * *

What events have caused this AD? The Department of Civil Aviation (DCA) for Malaysia recently issued AD No.: CAM AD 001-2004, dated January 19, 2004, against Eagle Aircraft Models X-TS, X-TS 150, and 150B airplanes. CAM AD 001-2004 requires the following for these airplanes that are registered for operation in Malaysia:

The DCA is currently the country with State of Design responsibilities on the affected airplanes. Prior to the DCA, the Civil Aviation Safety Authority (CASA) of Australia had the State of Design responsibilities. During this time, the CASA issued CASA AD/X-TS/5, dated October 2003, to address the unsafe condition and require the above actions on Models XTS-150 and 150B airplanes registered for operation in Australia.

The Australian and Malaysian ADs were issued based on reports of cracks in the gusset weld area of the canard inboard flap hinge support brackets on several of the affected airplanes. Neither authority has been able to attribute the cracks to a specific cause. The probable causes are:

• manufacturing defects: the part might have suffered from a burn-through during welding or the outperforming stress relieving process after welding;

• design problems: poor distribution of stress concentration could create fatigue hotspots; and

• operational problems: pilot exceeds Vfe (flap extension speed), inducing loads higher than the certificated limit load).

In addition, no information exists regarding damage tolerance on these brackets to show the part can absorb any kind of crack without leading to immediate failure.

Based on all of this, the CASA and DCA both issued ADs for their respective countries that require prior to further flight initial inspections and before the first flight of each day repetitive inspections.

The Eagle Aircraft Model Eagle 150B is the only affected airplane model type certificated for operation in the United States. There are currently 11 of these airplanes on the U.S. registry.

What is the potential impact if FAA took no action? Cracks in the canard inboard flap hinge support brackets, if not detected and corrected, could lead to failure of these brackets. This failure could result in asymmetric flap deployment and the inability to lower or raise the flaps with consequent loss of control of the airplane.

Is there service information that applies to this subject? Eagle Aircraft has issued Mandatory Service Bulletin SB 1109, Revision Original, Effective Date August 29, 2003.

What are the provisions of this service information? The service bulletin includes procedures for performing the actions required by AD No.: CAM AD 001-2004, dated January 19, 2004.

Did the CASA of Australia and the DCA of Malaysia inform the United States under the bilateral airworthiness agreement? The Model Eagle 150B airplanes are manufactured in Australia or Malaysia (with Malaysia having current State of Design responsibilities) and are type-certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement.

Under this bilateral airworthiness agreement, the CASA and DCA have kept us informed of the situation described above.

What has FAA decided? We have examined the CASA's and DCA's findings, reviewed all available information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.

Since the unsafe condition described previously is likely to exist or develop on other Eagle Aircraft Model Eagle 150B airplanes of the same type design that are registered in the United States, we are issuing this AD to prevent failure of the canard inboard flap hinge support brackets caused by undetected cracks. This failure could result in asymmetric flap deployment and the inability to lower or raise the flaps with consequent loss of control of the airplane.

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

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

Are there differences between this AD and the Malaysian and Australian ADs? Yes. The Australian AD allows an appropriately trained pilot to perform the visual inspections of the canard inboard flap hinge support brackets. Although the Malaysian AD does not specifically state this, it does refer to the Australian AD. Regardless, the Federal Aviation Regulations (14 CFR 43.3) only allow the pilot to perform preventive maintenance as described in 14 CFR part 43, App. A, paragraph (c). These visual inspections are not considered preventive maintenance under 14 CFR part 43, App. A, paragraph (c). Therefore, an appropriately-rated mechanic must perform all actions of this AD.

How does the revision to 14 CFR part 39 affect this AD? On July 10, 2002, we published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs FAA's AD system. This regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

Will I have the opportunity to comment before you issue the rule? This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include the docket number, “FAA-2004-17890; Directorate Identifier 2004-CE-14-AD” at the beginning of your comments. We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD.

Using the search function of our docket Web site, anyone can find and read the comments received into any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc. ). This is docket number FAA-2004-17890; Directorate Identifier 2004-CE-14-AD. You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov.

Are there any specific portions of this AD I should pay attention to? We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. If you contact us through a nonwritten communication and that contact relates to a substantive part of this AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend this AD in light of those comments and contacts.

Where can I go to view the docket information? You may view the AD docket that contains the AD, any comments received, and any final disposition in person at the DMS Docket Offices between 9 a.m. and 5 p.m. (eastern standard time), Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES. You may also view the AD docket on the Internet at http://dms.dot.gov. The comments will be available in the AD docket shortly after the DMS receives them.

Will this AD impact various entities? We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “Docket No. FAA-2004-17890; Directorate Identifier 2004-CE-14-AD” in your request.

On April 13, 2004, a notice proposing to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by modifying the Class E airspace area at Lynchburg, VA was published in the Federal Register (69FR 19360-19361). The proposed action would provide additional controlled airspace to accommodate Standard Instrument Approach Procedures (SIAP), based on area navigation (RNAV), to Falwell Airport. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before May 13, 2004. 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 designated 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 6.5-mile radius of Falwell Airport, Lynchburg, VA.

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 affect 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 part 71 modifies the Class E surface area and the Class E airspace area extending upward from 700 feet above the surface at McCook, NE. An examination of controlled airspace for McCook, NE revealed that the McCook Municipal Airport ARP used in the legal descriptions for both Class E airspace areas is incorrect. Extensions to the Class E surface area are redefined relative to the McCook very high frequency omni-directional range (VOR)/distance measuring equipment (DME) facility and its radials. The Class E airspace area extending upward from 700 feet above the surface is increased from a 6.8-mile radius to a 7.6-mile radius of McCook Municipal Airport in order to comply with the criteria for 700 feet AGL airspace required for diverse departures. These modifications bring the legal descriptions of the McCook, NE Class E airspace areas into compliance with FAA Orders 7400.2E, Procedures for Handling Airspace Matters, and 8260.19C, Flight Procedures and Airspace. Class E airspace areas designed as surface areas are published in Paragraph 6002 of FAA Order 7400.9L, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in Paragraph 6005 of the same Order. The Class E airspace designations listed in this document would 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-2004-17722/Airspace Docket No. 04-ACE-34.” 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.

In the Federal Register of May 28, 2003 (68 FR 31645), FDA proposed changing regulations for liquid medicated feed and free-choice medicated feed and provided 90 days for comments on the proposed changes.

Several events led to the development of the proposed rule. First, an April 30, 1993, citizen petition requested that FDA amend § 558.5 (21 CFR 558.5) to clarify the information and data needed to demonstrate chemical and positional (physical) stability in liquid medicated feeds and describe circumstances under which a medicated feed application (MFA) will or will not be required. Second, our November 21, 1996 (61 FR 59209) advanced notice of proposed rulemaking, which we issued seeking comments concerning various issues for the development of regulations implementing provisions of ADAA, prompted the Animal Feed Industry Association to propose changes to the new animal drug requirements regarding free choice administration in feeds (§ 510.455 (21 CFR 510.455)).The proposed changes to § 510.455 would adopt the terms of feed mill licensing in accordance with ADAA and allow a feed manufacturer to submit a new animal drug application (NADA) for the approval of a Type A medicated article for use in the subsequent manufacture of a free-choice medicated feed. This document contains the liquid medicated feed and free-choice medicated feed final rules.

The proposed rule had the following objectives: (1) Replaced the references to “medicated feed application” in the current rule with the term “medicated feed mill license,” (2) defined the types of liquid medicated feed covered by this regulation, (3) clarified the types of approvals required for liquid medicated feed, (4) explained that an approval is required for a drug intended for use in a liquid feed and clarifies the procedures and requirements for demonstrating chemical and physical stability of a drug in liquid feed, (5) permitted submission of the stability data through a master file (MF) for reference by a subsequent applicant, (6) explained what information will be included in the published approval of a drug for use in liquid feed, (7) identified the conditions under which an approved medicated feed mill license will be required for the manufacture of a liquid medicated feed, and (8) described the labeling provisions for several drugs approved for use in water but not in liquid feed. We invited comments on whether or not the waiver provision needs to continue to be available because no one has invoked the provision since its inception in 1973.

The proposed rule had the following objectives: (1) Modified the current rule by providing a definition of free-choice medicated feed, (2) explained that one of three types of NADAs is required for a drug intended for use in a free-choice feed, (3) specified the data required for such applications and the procedures for their submission, (4) explained how such data must be submitted, (5) stated what information will be included in the published approval of a new animal drug intended for use in free-choice feed, and (6) explained the situations that will require a medicated feed mill license for the manufacture of a free-choice medicated feed.

We received three letters commenting on the proposed rule: Two from trade associations and one from a feed manufacturer. The letters were supportive of the proposed rule. Issues addressed in the comments included waivers from labeling provisions, certified letters containing proprietary information, and the free-choice and liquid feed stability data requirements.

Following is our response to comments, grouped by issue:

(Comment 1) Two comments stated that the proposed rule should retain the labeling provisions allowing a waiver of warning statements on labels of dry medicated feeds containing bacitracin, oxytetracycline, and/or chlortetracycline, as specified in § 558.5(i). One of the two comments pointed out that the waiver option should be retained because it provides needed information to liquid feed manufacturers while granting appropriate labeling flexibility to new animal drug applicants. The other comment indicated that although the waiver has not been sought in the past, there are indications that several firms are considering to request such a waiver in the future.

We agree with the two comments and are retaining the waiver option in this final rule.

(Comment 2) Two comments expressed concern about our intention, expressed in the preamble of the proposed rule, to provide both the NADA and the MF holder with a certified letter setting forth the formula and/or specifications of a free-choice or a liquid medicated feed product, where the formula and/or specifications are not published in a regulation. The two comments argued that the certified letter, which contains proprietary information, should only be issued to the MF holder who owns that information, and not to the NADA holder.

We agree with these two comments and intend to provide a certified letter only to the owner of the proprietary formula and/or specifications, who is typically the MF holder.

(Comment 3) Two comments stated that currently there are many free-choice and liquid medicated feed products approved through an MF for which no such certified letters have been provided to the MF holders. In order to avoid possible confusion at feed mill inspections, where some products may have a certified letter and others may not, the two comments stated that FDA should either issue such certified letters to the MF holders of all such previously approved free-choice and liquid medicated feeds, or make it clear in this rule that the certified letter route applies only to free-choice and liquid feeds approved after a certain date.

We intend to provide a certified letter to the owner of the proprietary formula and/or specifications of those free-choice and liquid medicated feed products that are approved after the effective date of this rule. We do not intend to issue certified letters for feed products approved before the effective date of this rule. Firms that are making such feed products must be in compliance with existing requirements and regulations pertaining to the manufacture of those products.

(Comment 4) Two comments stated that the agency should revisit the stability data requirements as well as the consumption data and manufacturing chemistry requirements articulated in the original April 30, 1993, citizen petition and revise the present liquid feed and free choice feed guidances regarding these topics.

This comment falls outside of the scope of this rulemaking. Comments pertaining to FDA guidance documents should be sent to the dockets for those documents. More information on how to submit comments to FDA guidance documents can be found at http://www.fda.gov/cvm/guidance/guidance.html#purpose .

The final rules for liquid medicated feed and free-choice medicated feeds adopt the proposed rules without change. For both the liquid medicated feed and free-choice medicated feed final rules, FDA concluded that an approved medicated feed mill license should be required for facilities that manufacture free-choice or liquid medicated feeds with proprietary formulas and/or specifications. Where the formula and/or specifications are published, FDA has an assurance that medicated feed mills have access to the information necessary to manufacture the approved free-choice or liquid medicated feed. Where the formula and/or specifications are proprietary, medicated feed mills might attempt to manufacture the free choice or liquid medicated feed knowing only that the drug is approved for use in free-choice or liquid medicated feed, but not knowing the formula and/or specifications. Manufacture of such feeds without this crucial information could endanger animal health and public health. Section 510(h) of the act (21 U.S.C. 360(h)) requires that FDA inspect licensed medicated feed mills at least once every 2 years. During such inspections, FDA can ensure that medicated feed mills manufacturing free-choice or liquid medicated feed with proprietary formulas and/or specifications have the approved formula and/or specifications.

We have carefully considered the potential environmental impacts of this rule and determined under 21 CFR 25.30(h) 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.

This final rule merely clarifies existing regulations concerning liquid medicated feeds and free-choice medicated feeds.

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 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages, distributive impacts and equity). We believe that this final rule is consistent with the regulatory philosophy and principles identified in Executive Order 12866. We have also determined that the rule is not a significant regulatory action as defined by the Executive order and so is not subject to review under the Executive order. Under the Regulatory Flexibility Act, if a regulation has a significant impact on a substantial number of small entities, the agency must analyze regulatory options that would minimize the impact on small entities. FDA certifies in accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612) that this rule will not have a significant economic impact on a substantial number of small entities, and therefore, a regulatory flexibility analysis is not required.

Section 202(a) of the Unfunded Mandates Reform Act requires that agencies prepare a written statement of anticipated costs and benefits before proposing any regulation that may result in an expenditure by state, local and tribal governments in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. The Unfunded Mandates Reform Act does not require FDA to prepare a statement of costs and benefits for this final rule because the 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 approximately $110 million.

The rule is intended to clarify, simplify, and elaborate on the current regulations concerning liquid medicated feeds and free-choice medicated feeds. This rule, which provides more precise and detailed provisions than the previous regulations, responds to requests submitted in citizen petitions and comments by an industry association. It also makes changes to the regulatory language for free-choice medicated feeds in order to be consistent with the ADAA provision that replaced the medicated feed application system with the medicated feed mill licensing system.

We did not receive any comments to the proposed rule that questioned the conclusions of the cost and benefit discussions. Further, changes made to the proposed rule as a result of other comments would not affect these conclusions. As such, we restate them for this final rule.

The final rule for liquid medicated feeds clarifies the types of liquid medicated feeds for which a separate new animal drug approval is necessary and for which a medicated feed mill license is necessary. In particular, it fully elaborates on the procedures and requirements for demonstrating the chemical and physical stability of a drug in liquid feeds, as well as how the data from such a demonstration can be submitted to the agency.

The rule references requirements under 21 CFR 514.1 that are currently required for the approval of all new animal drugs. As these requirements do not represent a new burden, there is no cost associated with this aspect of the rule. Likewise, the rule adds to the current labeling provisions for certain drugs that are approved for use in animal feed or drinking water but not approved for use in certain liquid feeds. The rule describes the waiver process for the exclusion of certain products from these labeling requirements. Because this waiver process already exists under the current rule, it will not impose any additional cost to industry.

The revisions to § 510.455 concern free-choice medicated feed and very closely follow the liquid medicated feed proposal. Section 510.455 clarifies and elaborates on the NADA requirements for drugs intended for use in free-choice medicated feeds. In addition, it replaces the language that provided for the medicated feed application with language for the medicated feed mill licensing system that was created by ADAA. Because the estimated costs and benefits of the feed mill licensing system were prepared for the final regulations implementing that system, these costs and benefits are not considered to be effects of this rule. In total, the rule is not expected to impose any new compliance burdens on the industry and is not associated with any costs.

It is possible that the final rule will, in fact, result in some cost savings due to the provision that eliminates the requirement for a medicated feed mill license for the manufacture of some liquid and free-choice medicated feeds that contain a Category I drug. In recent years, we have received an average of 128 medicated feed mill license applications annually. Since the applications do not explicitly specify the types of medicated feed that would be manufactured, we are not able to estimate the size of the decrease in applications that would be expected as a result of the rule. However, we would expect there to be some decrease in applications as some feed mills would be exempted from this requirement in the future. We believe this could lead to a modest cost savings for these feed mills. Further, the increased clarity and simplification of §§ 510.455 and 558.5 would be expected to result in additional cost savings to industry in the preparation of new animal drug applications to the agency. We cannot precisely quantify such savings, but believe the impact to be modest.

FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the final 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.

In this final rule, § 558.5 specifies procedures for obtaining a waiver from labeling requirements for certain drugs intended for use in animal feed or drinking water but not approved for use in liquid medicated feed. The following items must be included in a request for waiver: (1) A copy of the product label; (2) a description of the formulation; and (3) information to establish that the physical, chemical, or other properties of the product are such that diversion to use in liquid medicated feeds is unlikely. This information would be collected if the manufacturer or sponsor chose not to include the required warning “FOR USE IN ____ONLY, NOT FOR USE IN LIQUID MEDICATED FEEDS” on its product label. The sponsor or manufacturers would then need to satisfy the requirements of the waiver section of the regulation. The proposed burden estimate for this collection of information is 5 hours and will be included under the clearance for “New Animal Drug Application,” Office of Management and Budget (OMB) control number 0910-0032. All related data collections are already covered under OMB control number 0910-0032.

FDA has made conforming changes in its regulations in 21 CFR 558.95, 558.305, 558.311, 558.342, 558.355, and 558.625 to remove references to the term “medicated feed application.” These conforming changes ensure the accuracy and consistency of the regulations.

On May 4, 2004, we published a notice of proposed rulemaking (NPRM) entitled “Security Zone; Potomac River, Washington, DC and Arlington and Fairfax Counties, VA” in the Federal Register (69 FR 24552). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.

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 . Delaying the effective date past May 27, 2004, would be contrary to the public interest because the security zone is needed from 4 a.m. May 27 through 10 p.m. May 29, 2004, to protect the public, high-ranking officials, and ports and waterways of the United States.

Terrorist attacks on September 11, 2001, inflicted catastrophic human casualties and property damage. These attacks highlighted the terrorists' ability and desire to utilize multiple means in different geographic areas to increase their opportunities to successfully carry out their mission, thereby maximizing loss of life and destruction of property using multiple terrorist acts.

Since the September 11, 2001 terrorist attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia and Flight 93 in Pennsylvania, the Federal Bureau of Investigation (FBI) has issued several warnings concerning the potential for additional terrorist attacks within the United States. The threat of maritime attacks is real as evidenced by the October 2002 attack on a tank vessel off the coast of Yemen and the prior attack on the USS COLE. These attacks manifest a continuing threat to U.S. assets as described in the President's finding in Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 2002) that the security of the U.S. is endangered by the September, 11, 2001 attacks and that such disturbances continue to endanger the international relations of the United States. See also Continuation of the National Emergency with Respect to Certain Terrorist Attacks (67 FR 58317, September 13, 2002); Continuation of the National Emergency With Respect To Persons Who Commit, Threaten To Commit, Or Support Terrorism (67 FR 59447, September 20, 2002). The ongoing hostilities in Afghanistan and conflict in Iraq have made it prudent for U.S. ports and waterways to be on a higher state of alert because the Al Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.

The Captain of the Port is establishing a security zone for the dedication of the National World War II Memorial to address the aforementioned security concerns and to take steps to prevent the catastrophic impact that a terrorist attack against a large gathering of spectators and high-ranking officials at or near the National Mall in Washington, D.C., would have. This temporary security zone applies to all waters of the Georgetown Channel of the Potomac River, from the surface to the bottom, between the Long Railroad Bridge to the Arlington Memorial Bridge and all waters in between, including the waters of the Georgetown Channel Tidal Basin from May 27 through May 30, 2004. Vessels underway at the time this security zone is implemented will immediately proceed out of the zone. We will issue Broadcast Notices to Mariners to further publicize the security zone. This security zone is issued under authority contained in 50 U.S.C. 191 and 33 U.S.C. 1226.

Except for Public vessels and vessels at berth, mooring or at anchor, this rule temporarily requires all vessels in the designated security zone as defined by this rule to depart the security zone. However, the COTP may, in his discretion, grant waivers or exemptions to this rule, either on a case-by-case basis or categorically to a particular class of vessel that otherwise is subject to adequate control measures.

The Coast Guard received no comments on the proposed rule during the comment period published in the NPRM. No public meeting was requested, and none was held. As a result, no change from the proposed rule was made.

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).

The Coast Guard received no comments on the proposed rule during the comment period published in the NPRM. As a result, no change to the proposed regulatory text was made.

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 will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to operate or transit on the Georgetown Channel of the Potomac River, from the surface to the bottom, between the Long Railroad Bridge (the most eastern bridge of the 5-span, Fourteenth Street Bridge complex) to the Arlington Memorial Bridge and all waters in between, including the waters of the Georgetown Channel Tidal Basin. This security zone will not have a significant economic impact on a substantial number of small entities because vessels with compelling interests that outweigh the port's security needs may be granted waivers from the requirements of the security zone.

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 rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Mr. Ronald L. Houck, at Coast Guard Sector Baltimore, Waterways Management Branch, at telephone number (410) 576-2674.

Small businesses 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 business. 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 will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

This rule meets applicable standards in 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 does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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 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.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

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. This regulation establishes a security zone. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

On May 29, 2003, the Coast Guard published a final rule (68 FR 31978) establishing a security zone. And on March 26, 2004, we published a notice (69 FR 15681) stating that this year the Portland Rose Festival on Willamette River security zone in 33 CFR 165.1312 would be enforced from June 9, 2004, until June 13, 2004.

It has become necessary, however, to extend the time frame from this final rule by 3 days in order to allow for contingency planning. We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for not publishing an NPRM and for making this rule effective less than 30 days after publication in the Federal Register . Publishing a NPRM and incorporating these events into 33 CFR 165.13-1315 would be contrary to public interest because the dates for this event will not always fall on the same day in future years. In addition, immediate action is necessary to ensure the safety and security of vessels participating in the 2004 Portland Rose Festival in the navigable waters of the United States.

This rule, for safety and security concerns, will control vessel movements in a security zone surrounding vessels participating in the 2004 Portland Rose Festival. U.S. Naval Vessels are covered under 33 CFR part 165 subpart G—Protection of Naval Vessels, however, the Portland Rose Festival is a major maritime event that draws many different vessels including Navy, Coast Guard, Army Corps of Engineers, and Canadian Maritime Forces. It is crucial that the same level of security be provided to all participating vessels. Entry into this zone is prohibited unless authorized by the Captain of the Port, Portland or his designated representatives. Commercial vessels that typically transit this section of the Willamette River are pre-designated and will suffer only minor inconveniences. Recreational vessels may suffer from extended delays and can anticipate a vessel inspection. Recreational vessels are encouraged to avoid this area. Recreational vessels will be allowed into the zone on a case-by-case basis following extensive security measures, and as operations permit. Coast Guard personnel will enforce this security zone and the Captain of the Port may be assisted by other federal, state, or local agencies.

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.

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.

This expectation is based on the adequate resources of the Captain of the Port or his designated representatives, which will allow for a quick response to vessels seeking approval to transit through the security zone. For the above reasons, the Coast Guard only anticipates minor economic impact.

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 will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in this portion of the Willamette River. The likely impacts to small entities include minor time delays, potential inspections, and possibly non-entrance if the Captain of the Port or his designated representatives determines that the vessels participating in the Rose Festival are threatened. The security zone will not have a significant economic impact because adequate resources will allow for a timely response from the Captain of the Port or his designated representatives, to vessels seeking transit through the security zone.

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 rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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 will 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 will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not effect 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 does 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 does 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 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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation because the temporary security zone will not last longer than one week in duration. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

On February 19, 2004, we published a notice of proposed rulemaking (NPRM) entitled “Regulated Navigation Area; San Francisco Bay, San Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin River, and Connecting Waters, CA” in the Federal Register (69 FR 7717). In that NPRM, we proposed to designate the listed waters as a Regulated Navigation Area for the purposes of prohibiting vessels carrying LHG from anchoring, requiring them to proceed directly to their intended offload facility, and thereby limiting the amount of time these vessels remained within the heavily populated San Francisco Bay area. We did not receive any letters commenting on the proposed rule. No public hearing was requested, and none was held. We did make one small change in this final rule to expand the definition of LHG to include the hazards normally associated with liquefied hazardous gas.

Vessels or persons violating the precepts of this regulated navigation area will be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant to 33 U.S.C. 1232 any violation of the regulated navigation area described herein, is punishable by civil penalties (not to exceed $32,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000), and in rem liability against the offending vessel. Any person who violates this section, using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation, also faces imprisonment up to 12 years. Vessels or persons violating this section are also subject to the penalties set forth in 50 U.S.C. 192: Seizure and forfeiture of the vessel to the United States, a maximum criminal fine of $10,000, and imprisonment up to 10 years.

The Captain of the Port will enforce this regulated navigation area and may enlist the aid and cooperation of any Federal, State, county, municipal, or private agency to assist in the enforcement of the regulation.

Since the September 11, 2001 terrorist attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia and Flight 93, the Federal Bureau of Investigation (FBI) has issued several warnings concerning the potential for additional terrorist attacks within the United States. In addition, the ongoing hostilities in Afghanistan and the conflict in Iraq have made it prudent for U.S. ports to be on a higher state of alert because Al-Qaeda and other organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.

The threat of maritime attacks is real as evidenced by the attack on the USS Cole and the subsequent attack in October 2002 against a tank vessel off the coast of Yemen. These threats manifest a continuing threat to U.S. assets as described in the President's finding in Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 2002) that the security of the U.S. is endangered by the September 11, 2001 attacks and that such aggression continues to endanger the international relations of the United States. See also Continuation of the National Emergency with Respect to Certain Terrorist Attacks (67 FR 58317, September 13, 2002), and Continuation of the National Emergency with Respect to Persons Who Commit, Threaten To Commit, Or Support Terrorism (67 FR 59447, September 20, 2002).

Additionally, the U.S. Maritime Administration (MARAD) in Advisory 02-07 advised U.S. shipping interests to maintain a heightened status of alert against possible terrorist attacks. MARAD more recently issued Advisory 03-05 informing operators of maritime interests of increased threat possibilities to vessels and facilities and a higher risk of terrorist attack to the transportation community in the United States. The ongoing foreign hostilities have made it prudent for U.S. ports and waterways to be on a higher state of alert because the Al-Qaeda organization and other similar organizations have declared and ongoing intention to conduct armed attacks on U.S. interests worldwide.

Collectively, the items noted in the previous discussion represent a hazardous condition threatening the safety of the port and its facilities as well as other users of the waterway. Further, due to increased awareness that future terrorist attacks are possible, the Coast Guard as lead federal agency for maritime homeland security, has determined that the District Commander must have the means to deter threats to the port while sustaining the flow of commerce. A Regulated Navigation Area is a tool available to the Coast Guard that may be used to control vessel traffic through ports, harbors, or other waters.

As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of regulated navigation areas, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. The Coast Guard also has authority to establish regulated navigation areas pursuant to the Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq. ), and implementing regulations promulgated by the President in subparts 6.01 and 6.04 of part 6 of title 33 of the Code of Federal Regulations.

In this particular rulemaking, to address the aforementioned security and safety concerns and to take steps to prevent a terrorist incident involving vessels carrying Liquefied Hazardous Gas (LHG), the Coast Guard is designating San Francisco Bay, San Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin River, and the connecting waters as a Regulated Navigation Area for the purpose of prohibiting vessels carrying LHG from anchoring or unnecessarily remaining within these areas. Since September of 2001, as part of the efforts to increase the safety and security of the Port of San Francisco Bay, the Captain of the Port (COTP) has been issuing COTP Orders to prohibit LHG carrying vessels from anchoring prior to discharging their cargo. As such, this rule codifies the established policy of prohibiting LHG carrying vessels from anchoring in San Francisco Bay, San Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin River, and the connecting waters.

This regulated navigation area is needed to protect the public, ports, and the environment from the potential damage that would be caused if an LHG vessel were to become the target of a subversive act or be involved in an accident or other event of a similar nature. Prohibiting vessels carrying LHG from anchoring unless specifically authorized to do otherwise by the Captain of the Port or his designated representative will limit the amount of time these vessels are underway in the San Francisco Bay area and reduce the associated potential hazards posed by their cargo. Due to heightened security concerns and the catastrophic impact a terrorist attack on a vessel carrying LHG would have on the vessel, crew, surrounding area and the public, the regulations established by this rule are prudent for this location.

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).

Although this regulation prohibits LHG vessels from anchoring within the regulated navigation area and requires them to proceed directly to their intended offload facility, the effect of this regulation is not significant because vessels carrying LHG have been directed by COTP orders not to anchor within San Francisco Bay, San Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin River, and connecting waters in California since September of 2001. Therefore, this rule is a continuation of the established policy of prohibiting LHG vessels from anchoring in the San Francisco Bay area, and having it published simply removes the need to issue a COTP order each time an LHG vessel enters the bay. In addition, LHG vessels will be allowed to anchor on a case-by-case basis with permission of the Captain of the Port, or his designated representative.

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 will not have a significant economic impact on a substantial number of small entities because the rule only effects LHG vessels within San Francisco Bay, San Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin River, and connecting waters in California, it allows these vessels to complete their intended purpose of delivering LHG cargo, and the rule is a continuation of a policy that has been in effect since September of 2001.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses 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 business. If you wish to comment on actions by employees of the Coast Guard, call 1-800-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 will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

This rule meets applicable standards in 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 does 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 does 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 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 because we are establishing a Regulated Navigation Area. An “Environmental Analysis Check List” and a draft “Categorical Exclusion Determination” (CED) will be available in the docket where located under ADDRESSES .

On March 21, 2000, the National Park Service published a regulation (36 CFR 3.24) on the management of personal watercraft (PWC) use within all units of the national park system (65 FR 15077). This regulation prohibits PWC use in all national park units unless the NPS determines that this type of water-based recreational activity is appropriate for the specific park unit based on the legislation establishing that park, the park's resources and values, other visitor uses of the area, and overall management objectives. The regulation banned PWC use in all park units effective April 20, 2000, except that a grace period was provided for 21 lakeshores, seashores, and recreation areas. The regulation established a 2-year grace period following the final rule publication to provide these 21 park units time to consider whether PWC use should be allowed.

Amistad National Recreation Area lies along the United States-Mexico border near Del Rio, Texas. The unit consists of 57,292 acres of land and water and is a man-made reservoir resulting from the construction of a dam at the confluence of Devils River and the Rio Grande. The reservoir is 1,117 feet above sea level at the normal conservation level, and the park boundary continues 83 miles northwest up the Rio Grande, 25 miles north up the Devils River, and 14 miles north up the Pecos River. The park boundary varies but is generally at the elevation mark of 1,144.3 feet above mean sea level, and the lake level fluctuates in relation to this. The international boundary between the United States and Mexico falls in the middle of the Rio Grande River. The International Boundary and Water Commission has placed buoys in the center of the channel for the first 28 miles but the reservoir is otherwise unmarked. The Mexico side of the reservoir does not have any protected status, thus the NPS does not generally consult with Mexican officials on matters such as boating management in a formal sense.

Amistad is home to a rich archeological record and world-class rock art. Within or immediately adjacent to park boundaries are four archeological districts and one site listed on the National Register of Historical Places.

Amistad National Recreation Area supports a wide variety of boating activities throughout the year, including PWC use, powerboating, waterskiing, houseboating, boat fishing, sightseeing by vessel, sailboating, sailboarding, canoeing, and kayaking. Amistad receives over 1,000,000 visitors a year and issues approximately 5,000 lake use permits annually.

The purpose of Amistad National Recreation Area is to provide visitors and neighbors with opportunities and resources for safe, high-quality public outdoor recreation and use of Lake Amistad; to develop and maintain facilities necessary for the care and accommodation of visitors; and to support the concepts of stewardship and protection of resources and environmental sustainability by practicing and interpreting their application in a unit of the national park system.

According to Amistad's 2001-2005 strategic plan, the primary significance of Amistad National Recreation Area can be summarized as: (1) Offering diverse water-based recreational opportunities, especially fishing; (2) interpreting exceptional examples of Lower Pecos archeology and rock art and; (3) commemorating a water conservation partnership between the United States and Mexico.

Under the National Park Service's Organic Act of 1916 (Organic Act) (16 U.S.C. 1 et seq. ) Congress granted the NPS broad authority to regulate the use of the Federal areas known as national parks. In addition, the Organic Act (16 U.S.C. 3) allows the NPS, through the Secretary of the Interior, to “make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks * * *”

16 U.S.C. 1a-1 states, “The authorization of activities shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established * * *”

NPS's regulatory authority over waters subject to the jurisdiction of the United States, including navigable waters and areas within their ordinary reach—as with the United States Coast Guard—is based upon the Commerce Clause of the U.S. Constitution. Additionally, NPS's regulatory authority over non-navigable waters administered by the NPS, is derived from the Property Clause. In regard to the NPS, Congress in 1976 directed the NPS to “promulgate and enforce regulations concerning boating and other activities on or relating to waters within areas of the National Park System, including waters subject to the jurisdiction of the United States * * *” (16 U.S.C. 1a-2(h)). In 1996 the NPS published a final rule (61 FR 35136, July 5, 1996) amending 36 CFR 1.2(a)(3) to clarify its authority to regulate activities within the National Park System boundaries occurring on waters subject to the jurisdiction of the United States.

The park began regularly documenting PWC use on July 4, 1992, but the earliest record is from March 1989, when a violation notice was issued to an operator for reckless and negligent behavior near a swim beach. PWC use became more common between 1990-91, and in May 2001 park staff began collecting more specific PWC use data. The highest use generally occurs in summer from Friday through Sunday, and in 2001 ranged from as low as 1 PWC per day up to 35 per day. Park staff believes that PWC use is increasing at approximately 1.5% per year.

Data collected during 2001 and 2002 show that PWC users are a consistent part of the total boating population of the lake, and holidays show the highest amount of use. The highest PWC-use weekday was Wednesday, July 4, 2001 (a holiday), when 33 PWC trailers were observed parked at boat ramp parking lots throughout the recreation area. On that same day, 88 non-PWC boat trailers were observed in the same parking lots.

The highest use for a non-holiday weekend occurred on Saturday, June 23, 2001, when 26 PWC trailers were observed in parking lots throughout the recreation area, compared to 270 non-PWC boat trailers in the same parking lots. Visitors were attracted by the 12 largemouth black bass tournaments taking place at the lake that day and the pleasant weather conditions (bass tournaments occur every weekend during the summer). The highest holiday weekend use day was Sunday, May 26, 2002, when 38 PWC trailers (and 296 non-PWC boat trailers) were observed at launch ramps.

On busy summer weekends, PWC use can comprise between 8% and 20% of total boating activity. On summer weekdays this percentage tends to increase due to fewer out-of-town bass tournament fishermen on the lake. PWC use on summer weekdays can comprise between 19% and 40% of total boating activity in the evenings after 6:30 p.m., when local PWC owners visit the lake after work.

PWC use occurs primarily between May and September, with April and October also showing steady visitation. Weekday PWC users are primarily local residents who arrive after work, while weekend users come from areas farther away. PWC users are usually on the water all day on weekends. Park staff has indicated that PWC users generally operate for two to three hours on weekday evenings, and from four to eight hours on weekends. The increased amount of time in the water can be attributed to users taking turns riding one craft.

PWC operators have been observed traveling throughout the lake, either singly, in pairs, in small groups, or in association with a motorized vessel or houseboat. Within Amistad National Recreation Area, PWC use has been allowed wherever motorized vessels have had access. This includes the arm of the Rio Grande, the Devils River, San Pedro Canyon, and the Pecos River.

Areas of heaviest PWC use are Devils River north of buoy P and San Pedro Canyon east of buoy A. Most of the personal watercraft launching from Rough Canyon travel up Devils River. In addition, many personal watercraft launching from Diablo East and Spur 454 travel up Devils River past buoy P. In contrast, only one or two personal watercraft travel up the Rio Grande past buoy 28. No PWC have been seen using the Pecos River.

The San Pedro arm of the lake (at the end of Spur 454) attracts a large number of PWC operators because it is one of the few areas where bystanders, usually friends and relatives of the PWC operators, can drive close to the shoreline to observe PWC activity or take turns riding. As a result, this location is one of the primary destinations for PWC operators. Another popular destination for PWC operators is the Indian Springs area in the upper Devils River section of the lake. While en route to Indian Springs, PWC operators tend to either travel in a direct line or explore some or all of the coves between their launch and destination points.

People who rent the 56- to 65-foot houseboats from Amistad Lake Marina often tow personal watercraft with the houseboat (two or three personal watercraft have been observed being towed). The vessels are permitted to travel to most areas, so PWC use is dispersed. These tagalongs are the only personal watercraft likely to use the upper Rio Grande area (north of buoy 28).

On October 22, 2003, the National Park Service published a Notice of Proposed Rulemaking (NPRM) for the operation of PWC at Amistad National Recreation Area (NRA) (68 FR 60304). The proposed rule for PWC use was based on alternative A in the Environmental Assessment (EA) prepared by NPS for Amistad NRA. The EA was available for public review and comment from April 3 to May 3, 2003, and the NPRM was available for public comment from October 22 to December 22, 2003.

The purpose of the environmental assessment was to evaluate a range of alternatives and strategies for the management of PWC use at Amistad to ensure the protection of park resources and values while offering recreational opportunities as provided for in the National Recreation Area's enabling legislation, purpose, mission, and goals. The analysis assumed alternatives would be implemented beginning in 2002 and considered a 10-year period, from 2002 to 2012.

The environmental assessment evaluated three alternatives concerning the use of personal watercraft at Amistad National Recreation Area. Alternative A allows PWC use under an NPS special regulation in accordance with past park practices, and State regulations. That is, after the effective date of a final rule, PWC use would be the same as it was before November 7, 2002 when the park closed to PWC use under the service-wide regulations at 36 CFR 3.24. Alternative B continues PWC use under a special regulation, but specific limits and use areas would be defined. The no action alternative eliminates PWC use entirely within this national park system unit.

Based on the environmental analysis prepared for PWC use at Amistad National Recreation Area, alternative A is the preferred alternative and is also considered the environmentally preferred alternative because it best fulfills park responsibilities as trustee of this sensitive habitat; ensure safe, healthful, productive, and aesthetically and culturally pleasing surroundings; and attain a wider range of beneficial uses of the environment without degradation, risk of health or safety, or other undesirable and unintended consequences.

A proposed rule was published for public comment on October 22, 2003, with the comment period lasting until December 22, 2003. The National Park Service received 737 timely written responses regarding the proposed regulation. Of the responses, 673 were form letters in 3 separate formats and 64 were separate letters. Of the 64 separate letters, 59 were from individuals, 4 from organizations, and 1 from a business. Within the following discussion, the term “commenter” refers to an individual, organization, or public agency that responded. The term “comments” refers to statements made by a commenter.

1. One commenter stated that the Environmental Assessment (EA) was headed toward a predetermined outcome.

NPS Response: At no time has there been a predetermined outcome. The staff, in the preparation of the Environmental Assessment, went through the National Environmental Policy Act (NEPA) process—identified purpose, need, and objectives for taking action, conducted internal scoping, developed proposal, determined the appropriate pathway (Categorical Exemption (CE), EA, or Environmental Impact Statement (EIS)), and conducted public scoping through mailings.

If the EA process had discovered significant impacts from PWC use at Amistad, then an EIS would have been prepared. In addition, if the NPS had concluded that the impacts of PWC use of Amistad NRA were inappropriate based on the area's enabling legislation, resources and values, other visitor uses, and overall management objectives then NPS would have determined a different course of action. To the contrary the impacts discovered during the EA process revealed no significant reasons for not moving forward with the preferred alternative.

2. Several commenters stated that PWC should not be singled out for analysis and restriction.

NPS Response: The Environmental Assessment was not designed to determine if personal watercraft caused more environmental damage to park resources than other vessels, but rather to determine if personal watercraft use was consistent with the park's enabling legislation and otherwise apprpriate. The NPS evaluated and chose the preferred alternative as the best regulatory approach in order to maintain the opportunities for various types of recreation while protecting the resources of Amistad National Recreation Area.

3. One commenter stated that the EA failed to use the best available data for the analysis and picked Alternative A without adequate scientific justification.

NPS Response: NPS believes it has properly assessed the impacts of personal watercraft on the resources of Amistad National Recreation Area using the best available data for the analysis. This analysis was done for every applicable impact topic consistent with the Council on Environmental Quality regulations (40 CFR 1502.22). Where data was lacking, best professional judgment prevailed using assumptions and extrapolations from scientific literature, other park units where personal watercraft are used, and personal observations of park staff.

The NPS believes that the environmental assessment is in full compliance with the National Environmental Policy Act, and the Finding of No Significant Impact (FONSI) demonstrates that decision has been adequately analyzed and explained.

4. One commenter stated that the NPS did not consult with and seek the expertise of various agencies, which appears to violate the NPS' PWC regulations.

NPS Response: The final PWC regulation published by the NPS in March 2000 indicates that we intend to seek the expertise of the U.S. Environmental Protection Agency (EPA), OSHA and other relevant agencies and literature when deciding whether to allow continued PWC use in units of the National Park System. The Environmental Assessment references EPA and OSHA regulations and studies throughout. For example, the U.S. Environmental Protection Agency (EPA) website and the Texas Natural Resources Conservation Commission website were visited and Amistad information was retrieved for both air quality and water quality.

Phone calls were made or letters were sent to other Federal, State, local agencies including U.S. Fish and Wildlife, Texas Parks and Wildlife, Bureau of Reclamation, Texas Commission on Environmental Quality (the State agency charged with application of EPA regulations in Texas), International Boundary and Water Commission, Texas Archeology Society, and the U.S. Coast Guard. The EA was distributed to those listed on pages 156-158 of the EA. We feel we have conducted consultation as required by various Acts and Executive Orders as well as the intent of the March 2000 PWC regulations.

5. One commenter expressed concern about the use of Federal Aid in Sport Fish Restoration Act (FASFRA) funds to construct boat launches and facilities.

NPS Response: There are no provisions within the preferred alternative for boat launches and facilities. Landing zones are designated by the NPS for access only by PWC users. No FASFRA funds are used within the national recreation area to construct boat launches.

6. Several commenters stated that the decision violates the Organic Act and will result in the impairment of resources.

NPS Response: The “Summary of Laws and Policies” section in the “Environmental Consequences” chapter of the PWC Use EA summarizes the three overarching laws that guide the National Park Service in making decisions concerning protection of park resources. These laws, as well as others, are also reflected in the NPS Management Policies. An explanation of how the Park Service applied these laws and policies to analyze the effects of personal watercraft on Amistad Recreation Area resources and values can be found under “Impairment Analysis” in the “Methodology” section.

An impairment is an impact that, in the professional judgement of the NPS manager, would harm the integrity of park resources or values. In the analysis used in the PWC Use EA, an impairment to a particular park resource or park value must rise to the magnitude of a major impact, as defined by factors such as context, duration, and intensity. For each resource topic, the Environmental Assessment establishes thresholds or indicators of magnitude of impact. An impact approaching a “major” level of intensity is one indication that impairment could result. For each impact topic, when the intensity approached “major,” the park would consider mitigation measures to reduce the potential for “major” impacts, thus reducing the potential for impairment.

The PWC Use EA is a proactive measure to protect national recreation area resources from harm. The purpose of the EA is to assess the impacts of PWC use on identified resources within the recreation area boundaries. The National Park Service has determined that under the preferred alternative, Alternative A, there will be no negative impacts on park resources or values.

7. One commenter stated that the analysis lack site-specific data and there was no adequate justification for why the data was not collected.

NPS Response: NPS believes it has properly assessed the impacts of personal watercraft on the resources of Amistad National Recreation Area using the best available data for the analysis. This analysis was done for every applicable impact topic consistent with the Council on Environmental Quality regulations (40 CFR 1502.22). Where data was lacking, best professional judgment prevailed using assumptions and extrapolations from scientific literature, other park units where personal watercraft are used, and personal observations of park staff.

The NPS believes that the environmental assessment is in full compliance with the National Environmental Policy Act, and the Finding of No Significant Impact (FONSI) demonstrates that decision has been adequately analyzed and explained.

8. One commenter stated that the analysis did not adequately examine impacts to resources outside of Amistad and therefore failed to conduct a thorough and accurate analysis of the impact PWC pollution has on NRA resources.

NPS Response: Under NEPA, an Environmental Assessment must look at the cumulative impacts of any proposed action in a regional context. On page 21 of the EA is a list of past, present and reasonably foreseeable future actions used to assess PWC contributions to overall impacts on a resource. The EA reviewed regional plans and developed a cumulative impacts analysis that is required under NEPA.

9. One commenter stated that the analysis represents an outdated look at potential emissions from an overstated PWC population of conventional two-stroke engines, and underestimated the accelerating changeover to 4-stroke and newer two-stroke engines. The net effect is that the analysis overestimates potential PWC hydrocarbon emissions, including benzene and polycyclic aromatic hydrocarbons (PAHs), to the water at Amistad.

NPS Response: Assumptions regarding PWC use (32 per day in 2002 and 37 per day in 2012) were based on the average from the 6 highest use days May 2001 to July 2002 (EA page 90). The data can be considered a conservative estimate, but it is not “unrealistic” since it based on actual Amistad data. Despite these conservative estimates, impacts to water quality from personal watercraft are judged to be negligible to moderate for all alternatives evaluated. Cumulative impacts from personal watercraft and other outboard motorboats are expected to be negligible. If the assumptions used were less than conservative, the conclusions could not be considered protective of the environment, while still being within the range of expected use.

The assumption of all personal watercraft using 2-stroke engines in 2002 is recognized as conservative. It is protective of the environment yet follows the emission data available in CARB (1998) and Bluewater Network (2001) at the time of preparation of the EA. The emission rate of 3 gallons per hour at full throttle is a mid-point between 3 gallons in two hours (1.5 gallons per hour; NPS 1999) and 3.8 to 4.5 gallons per hour for an average 2000 model year personal watercraft (Personal Watercraft and Bluewater Network 2001). The assumption also is reasonable in view of the initiation of production line testing in 2000 (EPA 1997) and expected full implementation of testing by 2006 (EPA 1996).

Reductions in emissions used in the water quality impact assessment are in accordance with the overall hydrocarbon emission reduction projections published by the EPA (1996). EPA (1996) estimates a 52% reduction by personal watercraft by 2010 and a 68% reduction by 2015. The 50% reduction in emissions by 2012 (the future date used in the EA) is a conservative interpolation of the emission reduction percentages and associated years (2010 and 2015) reported by the EPA (1996) but with a one-year delay in production line testing (EPA 1997).

The estimate of 2.8 mg/kg for benzo(a)pyrene in gasoline used in the calculations is considered conservative, yet realistic, since it is within the range of concentrations measured in gasoline according to Gustafson et al. (1997).

10. One commenter stated that the analysis disregarded or overlooked relevant research regarding impacts to water quality from PWC use as well as the impact to downstream resources and long term site specific water quality data on PWC pollutants.

NPS Response: The protection of water quality within the national recreation area has been addressed in the EA in a conservative evaluation of surface water quality impacts. Because site-specific water quality data on organic compounds were not available for Amistad and collection of these data was beyond the scope of the EA, a conservative modeling approach was developed and applied to evaluate impacts to water quality from PWC and other motorized vessel use.

Estimated minimum threshold volumes of water were determined for the PWC use areas where concentrations of gasoline constituents discharged from personal watercraft and other outboard engines could potentially be toxic to aquatic organisms or humans. Using the estimated threshold volumes, volumes of the areas being evaluated, PWC and other motorized vessel high-use-day loadings of chemicals identified as constituents of gasoline, and water quality benchmarks, it is possible to identify potentially unacceptable impacts to human health or the environment. Chronic water quality benchmarks protective of aquatic populations and protective of human health were acquired from various sources, including USEPA water quality criteria.

The EA states that in 2002 under both Alternatives A and B, impacts to water quality in Amistad from PWCs on a high-use day would be negligible for all chemicals evaluated based on ecological benchmarks and human health benchmarks. In 2012, impacts would also be negligible based on all ecological and human health benchmarks. “Impairment” is clearly defined in the EA on page 91 and is the most severe of the five potential impact categories. The other impact categories starting with the least severe are: negligible, minor, moderate, and major.

11. One commenter stated that the analysis failed to mention the impact of PWC permeation losses on local air quality.

NPS Response: Permeation losses of VOCs from personal watercraft were not included in the calculation of air quality impacts primarily because these losses are insignificant relative to emissions from operating watercraft. Using the permeation loss numbers in the comment (estimated to be half the total of 7 grams of losses per 24 hours from the fuel system), the permeation losses per hour from are orders of magnitude less than emissions from operating personal watercraft. Therefore, including permeation losses would have no effect on the results of the air quality impact analyses. Also, permeation losses were not included because of numerous related unknown contributing factors such as number of number of personal watercraft refueling at the reservoir and the location of refueling (inside or outside of the airshed).

12. One commenter stated that the use of air quality data collected at Laredo, 150 miles from the NRA, in the analysis does not provide the best representation of air quality at the lake.

NPS Response: The Laredo monitoring station is the closest air quality monitoring site to the study area. The data from this site were discussed in the EA; however, these data were not used in the impact analysis. The analysis was based on the results of an EPA air emission model, which used estimated PWC and vessel usage at Amistad as inputs.

As stated above, the methodology for assessing air quality impacts was based on a combination of annual emission levels and the National Ambient Air Quality Standards (NAAQS), which are aimed at protection of the public. OSHA and NIOSH standards are intended primarily for workers and others exposed to airborne chemicals for specific time periods. The OSHA and NIOSH standards are not as suitable for application in the context of local and regional analysis of a park or recreational area as are the ambient standards, nor are they intended to protect the general public from exposure to pollutants in ambient air.

13. One commenter stated that the analysis failed to consider that the PWC companies have been rapidly converting from carbureted two-stroke engine models to direct injection two-stroke and four-stroke engine models and most PWC produced will meet the more stringent California Air Resources Board (CARB) standards over time.

NPS Response: Assumptions regarding PWC use (32 per day in 2002 and 37 per day in 2012) were based on the average from the 6 highest use days May 2001 to July 2002 (EA page 90). The data can be considered a conservative estimate, but it is not “unrealistic” since it is based on actual Amistad data. Despite these conservative estimates, impacts to water quality from personal watercraft are judged to be negligible to moderate for all alternatives evaluated. Cumulative impacts from personal watercraft and other outboard motorboats are expected to be negligible. If the assumptions used were less than conservative, the conclusions could not be considered protective of the environment, while still being within the range of expected use.

The assumption of all personal watercraft using 2-stroke engines in 2002 is recognized as conservative. It is protective of the environment yet follows the emission data available in CARB (1998) and Bluewater Network (2001) at the time of preparation of the EA. The emission rate of 3 gallons per hour at full throttle is a mid-point between 3 gallons in two hours (1.5 gallons per hour; NPS 1999) and 3.8 to 4.5 gallons per hour for an average 2000 model year personal watercraft (Personal Watercraft and Bluewater Network 2001). The assumption also is reasonable in view of the initiation of production line testing in 2000 (EPA 1997) and expected full implementation of testing by 2006 (EPA 1996).

Reductions in emissions used in the water quality impact assessment are in accordance with the overall hydrocarbon emission reduction projections published by the EPA (1996). EPA (1996) estimates a 52% reduction by personal watercraft by 2010 and a 68% reduction by 2015. The 50% reduction in emissions by 2012 (the future date used in the EA) is a conservative interpolation of the emission reduction percentages and associated years (2010 and 2015) reported by the EPA (1996) but with a one-year delay in production line testing (EPA 1997).

The estimate of 2.8 mg/kg for benzo(a)pyrene in gasoline used in the calculations is considered conservative, yet realistic, since it is within the range of concentrations measured in gasoline according to Gustafson et al. (1997).

14. One commenter expressed concern that PWC emissions were declining faster than forecasted by the EPA. As the Sierra Report documents, in 2002, HC + NO X emissions from the existing fleet of PWC were already 23% lower than they were before the EPA regulations became effective, and will achieve reductions greater than 80% by 2012.

NPS Response: The U.S. EPA's data incorporated into the 1996 Spark Ignition Marine Engine rule were used as the basis for the assessment of air quality, and not the Sierra Research data. It is agreed that the Sierra Research data show a greater rate of emissions reductions than the assumptions in the 1996 Rule and in the EPA's NONROAD Model, which was used to estimate emissions. However, the Sierra Research report has not been used in the EA for reasons of consistency and conformance with the model predictions. Most States use the EPA's NONROAD Model for estimating emissions from a broad array of mobile sources. To provide consistency with State programs and with the methods of analysis used for other similar NPS assessments, the NPS has elected not to base its analysis on focused research such as the Sierra Report for assessing PWC impacts.

It is agreed that the Sierra Research report also provides data on “worst case” scenarios. However worst case or short-term scenarios were not analyzed for air quality impacts in this or other NPS EAs.

It is agreed that the relative quantity of HC + NO X are a very small proportion of the county based emissions and that this proportion will continue to be reduced over time. The EA takes this finding into consideration in the analysis.

Improved PWCs may be used in increasing numbers; however the data of overall use of this engine type nationwide is not well established. For consistency and conformity in approach, the NPS has elected to rely on the assumptions in the 1996 S.I Engine Rule which are consistent with the widely used NONROAD emissions estimation Model. The outcome is that estimated emissions from combusted fuel may be in the conservative range, if compared to actual emissions.

15. Several commenters stated that research indicated that direct-injection two-stroke engines are dirtier than four-stroke engines.

NPS Response: It is agreed that two-stroke carbureted and two-stroke DI engines generally emit greater amounts of pollutants than four-stroke engines. Only 4 of the 20 PAHs included in the analyses were detected in water: Naphthalene, 2-methylnaphthalene, fluorene, and acenaphthylene. The discussion of toxicity of PAHs in the comment must be from another (unreferenced) document since this discussion was not found in CARB (2001). It is agreed that some pollutants (BTEX and formaldehyde) were reported by CARB in the test tanks after 24 hours at approximately 50% the concentrations seen immediately following the test. No results for PAH concentrations after 24 hours were seen in the CARB (2001) results, but a discussion of sampling/analyses of PAHs in the six environmental compartments was presented.

EPA NONROAD model factors differ from those of CARB. As a result of the EPA rule requiring the manufacturing of cleaner PWC engines, the existing carbureted two-stroke PWC will, over time, be replaced with either two-stroke direct injection or 4-stroke PWCs and both are less-polluting engines. This replacement, with the anticipated resultant improvement in air quality, is parallel to that experienced in urban environments as the automobile fleet becomes cleaner over time.

16. One commenter stated that the use of the study by Kado, et. al. to suggest that the changeover from two-stroke carbureted to two-stroke direct injection engines may increase emissions of polycyclic aromatic hydrocarbons (“PAH”) is in error.

NPS Response: The criteria for analysis of impacts from PWC to human health are based on the National Ambient Air Quality Standards (NAAQSs) for criteria pollutants, as established by the U.S. Environmental Protection Agency (EPA) under the Clean Air Act, and on criteria pollutant annual emission levels. This methodology was selected to assess air quality impacts for all NPS EAs to promote regional and national consistency, and identify areas of potential ambient standard exceedances. PAHs are not assessed specifically as they are not a criteria pollutant. However, they are indirectly included as a subset of Total Hydrocarbons (THC), which are assessed because they are the focus of the EPA's emissions standards directed at manufacturers of spark ignition marine gasoline engines (see 61 FR 52088; October 4, 1996). Neither peak exposure levels nor NIOSH nor OSHA standards are included as criteria for analyzing air quality related impacts, except where short-term exposure is included in a NAAQS.

As stated above, the methodology for assessing air quality impacts was based on a combination of annual emission levels and the NAAQSs, which are aimed at protection of the public. OSHA and NIOSH standards are intended primarily for workers and others exposed to airborne chemicals for specific time periods. The OSHA and NIOSH standards are not as suitable for application in the context of local and regional analysis of a park or recreational area as are the ambient standards, nor are they intended to protect the general public from exposure to pollutants in ambient air.

The “Kado Study” (Kado et al. 2000) presented the outboard engine air quality portion of a larger study described in Outboard Engine and Personal Watercraft Emissions to Air and Water: A Laboratory Study (CARB 2001). In the CARB report, results from both outboards and personal watercraft (two-stroke and 4-stroke) were reported. The general pattern of emissions to air and water shown in CARB (2001) was two-stroke carbureted outboards and personal watercraft having the highest emissions, and 4-stroke outboard and personal watercraft having the lowest emissions. The only substantive exception to this pattern was in NO X emissions to air—two-stroke carbureted outboards and personal watercraft had the lowest NO X emissions, while the 4-stroke outboard had the highest emissions. Therefore, the pattern of emissions for outboards is generally applicable to personal watercraft and applicable to outboards directly under the cumulative impacts evaluations.

We agree with the technical statement and summation that adverse health risk to the public would be unlikely from exposure. The methodology for assessing air quality impacts is based on a combination of annual emission levels and the NAAQSs, which are aimed at protection of the public. OSHA and NIOSH standards are intended primarily for workers and others exposed to airborne chemicals for specific time periods. The OSHA and NIOSH standards are not as suitable for application in the context of local and regional analysis of a park or recreational area as are the ambient standards, nor are they intended to protect the general public from exposure to pollutants in ambient air.

17. One commenter stated that continued PWC use in the Amistad NRA will not result in sound emissions that exceed the applicable Federal or State noise abatement standards and technological innovations by the PWC companies will continue to result in substantial noise reductions.

NPS Response: The NPS concurs that on-going and future improvements in engine technology and design would likely further reduce the noise emitted from PWC. However, given the ambient noise levels in the recreation area, it is unlikely that the improved technology could reduce all cumulative impacts beyond minor to moderate throughout the recreation area.

18. One commenter stated that there is no evidence that PWC noise adversely affects aquatic fauna or animals.

NPS Response: Typically PWC exhaust below or at the air/water transition areas, not above the water. Sound transmitted through the water is not expected to have more than negligible adverse impacts on fish (page 118 of the EA), and the EA does not state the PWC noise adversely affects underwater fauna.

19. One commenter stated that the NPS places too much hope in new technologies significantly reducing PWC noise, since there is little possibility that the existing fleet of more than 1.1 million machines (most of which are powered by conventional two-stroke engines) will be retooled to reduce noise.

NPS Response: The analysis of the preferred alternative states that noise from PWC would continue to have minor to moderate, temporary adverse impacts, and that impact levels would be related to the number of PWC and sensitivity of other visitors. This recognizes that noise will occur and will bother some visitors, but site-specific modeling was not needed to make this assessment. The availability of noise reduction technologies is also growing, and we are not aware of any scientific studies that show these technologies do not reduce engine noise levels. Also, the analysis did not rely heavily on any noise reduction technology. It recognizes that the noise from the operation of PWC will always vary, depending on the speed, manner of use, and wave action present.

Although PWC use does occur throughout the lake, it is concentrated more in certain areas, and this is noted in the soundscapes impact analysis that follows the introductory statements and assumptions listed on page 109 of the EA. The analysis of impacts states that “The distribution of personal watercraft during peak summer days would range between 16 to 18 at Diablo East, 7 to 8 at Rough Canyon, 5 to 6 at Spur 454, 3 to 4 at South Winds Marina, and 1 to 2 at Box Canyon.” The analysis did not assume even distribution of PWC and predicted moderate impacts from concentrated PWC use in one area.

The noise annoyance costs in the “Drowning in Noise” study are recognized in the EA by the moderate impacts predicted, although no monetary costs are assigned. These costs would vary by type and location of user. Given the intended usage of the higher use marina/beach areas of Amistad and visitor expectations and tolerances at these areas, it is unlikely that the PWC noise experienced there would meet the definition of “major” impact, as defined in the EA.

20. One commenter stated that there is a big difference in both actual noise and perceived noise from PWC than that from other motorized watercraft in that PWCs repeatedly leave the water, which magnifies noise. This constantly changing noise is often perceived as more disturbing than the constant noise from motorized vessels.

NPS Response: The noise levels of two PWC traveling together would be less than the NPS noise limit of 82 dB at 82 feet for all alternatives. Given that ambient sound levels range from 34 dBA to 50 dBA in the recreation area, the operation of PWC 50 feet from shore would still have minor adverse affects on the soundscape. In most locations natural sounds would prevail and motorized noise would be very infrequent or absent.

21. Two commenters stated that the analysis relied on new technologies proposed by the PWC industry for future noise impacts.

NPS Response: The analysis did not assume that PWC noise would be substantially reduced in the future, although it does recognize the newer machines, and those powered by 4-stroke engines, are expected to be quieter. The analysis does take into account continued noise from PWC and an increase in PWC numbers over time.

22. One commenter stated that the noise associated with PWC is more invasive due to the constantly fluctuating noise levels.

NPS Response: The EA discusses the fluctuating noise aspect of PWC operation in the Affected Environment section (page 49 of the EA), under “Responses to PWC Noise,” and recognizes that the “irregular noise seems to be more annoying than that of a standard motorboat” to visitors. The analysis recognizes that different visitors will have different tolerance for PWC noise.

23. One commenter stated that the analysis did not include Drowning in Noise: Noise Costs of PWC in America and therefore the noise analysis under represents the actual impacts.

NPS Response: One of the initial tasks of the Amistad NRA study that is discussed in this Environmental Assessment and in previous responses was a literature search. Drowning in Noise: Noise Costs of Jet Skis in America was one of the many studies reviewed. The reference to that study (Komanoff and Shaw 2000) was discussed in the “Summary of Available Research on the Effects of Personal Watercraft” section of the EA.

24. Two commenters stated that the analysis lacked site-specific data for impacts to fish, wildlife, and threatened and endangered species at Amistad NRA.

NPS Response: The scope of the EA did not include site specific studies regarding potential effects of PWC use on wildlife species at Amistad National Recreation Area. Analysis of potential impacts of PWC use on wildlife at the national recreation area was based on best available data, input from park staff, and the results of analysis using that data.

25. One commenter stated that PWC use and human activities associated with their use may not be any more disturbing to wildlife species than any other type of motorized or non-motorized vessels. The commenter cites research by Dr. James Rodgers of the Florida Fish and Wildlife Conservation Commission, whose studies have shown that PWC are no more likely to disturb wildlife than any other form of human interaction. PWC posed less of a disturbance than other vessel types. Dr. Rodgers' research clearly shows that there is no reason to differentiate PWC from motorized boating based on claims on wildlife disturbance.

NPS Response: Based on the documents provided as part of this comment, it appears that personal watercraft are no more apt to disturb wildlife than are small outboard motorboats. In addition to this conclusion, Dr. Rodgers recommends that buffer zones be established, creating minimum distances between vessels (personal watercraft and outboard motorboats) and nesting and foraging waterbirds. In Amistad, under the Texas Water Safety Act, a 50-ft wide area along the shoreline is already established where the use of watercraft is restricted to flat wake speed only. With this restriction in mind, impacts to wildlife and wildlife habitat under all three alternatives were judged to be negligible at most locations along the shoreline.

26. One commenter stated that wildlife biologists are finding that PWC cause lasting impacts on fish and wildlife.

NPS Response: It is anticipated that more combustion-efficient engines in personal watercraft will reduce pollutant emissions to air and water in the same manner as increased efficiencies in automobile engines combined with catalytic converters and other technologies decreased the amount and types of automobile exhaust emissions. EPA-sponsored evaluations of different personal watercraft engine designs and emissions concluded that emission reductions would result with implementation of the EPA emission standards for marine engines. The preferred alternative (Alternative A) provides protection of wildlife in the recreation area by prohibiting PWC from landing in areas with interior least tern nesting colonies from May 1 through August 31.

PAH toxicity to fish and wildlife species is a complicated topic because PAHs consist of dozens of different chemical compounds, each of which has substantially different toxicity characteristics in water, sediment, and soils, and toxicity varies dramatically among different fish and wildlife species. The ecological toxicity analysis for PAHs reported in the Environmental Assessment explains the chemical, physical, and biological conditions that were used to conduct the assessment of PAH effects to fish species.

27. One commenter stated that the accident data used in the analysis was outdated and incorrect because PWC accidents are reported more often than other boating accidents.

NPS Response: The mediating factors described in the comment are recognized. However, these factors are unlikely to fully explain the large difference in percentages (personal watercraft are only 7.5% of registered vessels, yet they are involved in 36% of reported accidents). In other words, personal watercraft are 5 times more likely to have a reportable accident than are other vessels. This difference is even more significant when canoes and kayaks, which are not required to be registered but are included in the total number of accidents, are considered. Despite these national boating accident statistics, impacts of PWC use and visitor conflicts are judged to be negligible relative to swimmers and minor impact relative to other motorized vessels at the national recreation area.

28. One commenter stated that the analysis did not adequately address PWC fire hazards.

NPS Response: According to the National Marine Manufacturers Association, PWC manufacturers have sold roughly 1.2 million watercraft during the last ten years. Out of 1.2 million PWC sold the U.S. Coast Guard had only 90 reports of fires/explosions in the years from 1995-1999. This is less than 1% of PWC vessels having reports of problems associated with fires/explosions. As far as the recall campaigns conducted by Kawasaki and Bombardier, the problems that were associated with fuel tanks were fixed. Kawasaki conducted a recall for potentially defective fuel filler necks and fuel tank outlet gaskets on 23,579 models from the years 1989 and 1990. The fuel tank problems were eliminated in Kawasaki's newer models, and the 1989 and 1990 models are most likely not in use anymore since life expectancy of a PWC is only five to seven years according to PWIA. Bombardier also did a recall for its 1993, 1994, and 1995 models to reassess possible fuel tank design flaws. However, the number of fuel tanks that had to be recalled was a very small percent of the 1993, 1994, and 1995 fleets because fuel tank sales only amounted to 2.16% of the total fleet during this period (Bombardier Inc.). The replacement fuel tanks differed from those installed in the personal watercraft subject to the recall in that the replacement tanks had revised filler neck radiuses, and the installation procedure now also requires revised torque specifications and the fuel system must successfully complete a pressure leak test. Bombardier found that the major factor contributing to PWC fires/explosions was over-torquing of the gear clamp. Bombardier was legally required by the U.S. Coast Guard to fix 9.72% of the recalled models. Out of 125,349 recalls, the company repaired 48,370 units, which was approximately 38% of the total recall, far exceeding their legal obligation to repair units with potential problems. Further fuel tank and engine problems that could be associated with PWC fires has been reduced significantly since the National Marine Manufacturers Association set requirements for meeting manufacturing regulations established by the U.S. Coast Guard. Many companies even choose to participate in the more stringent Certification Program administered by the National Marine Manufacturers Association (NMMA). The NMMA verifies annually, or whenever a new product is put on the market, vessel model lines to determine that they satisfy not only the U.S. Coast Guard Regulations but also the more rigorous standards based on those established by the American Boat and Yacht Council.

29. One commenter stated that the analysis did not address impacts to other park visitors.

NPS Response: Adverse impacts of PWC use on other boaters is discussed in the EA (page 141 of the EA) under “PWC Users/Other Boater Conflicts,” The impacts are expected to be minor to moderate adverse concentrated in the high use areas.

30. One commenter stated that the analysis refers to a potential concern that the ability of PWC operators to access remote areas of the park unit might make certain cultural, archeological and ethnographic sites vulnerable to looting or vandalism. However, there is no indication of any instances where these problems have occurred. Nor is there any reason to believe that PWC users are any more likely to pose these concerns than other park visitors who might access these same areas.

NPS Response: The EA was focused on the analysis of impacts from PWC use. PWC can make it easier to reach some remote upstream areas, compared to hiking to these areas, but we agree that the type of impacts to cultural resources from any users of remote areas of the park would be similar if they can reach these areas.

31. One commenter stated that the analysis did not adequately assess socioeconomic impacts on the regional economy.

NPS Response: The number of recreational visits at Amistad National Recreation Area in calendar year 2000 was 1,234,506. In 2001 the recreational visits were 1,097,650, a reduction of 11%. The socioeconomic study did not address the future potential costs of environmental damage. The study looked at the potential effect that the ban would have on the local economy, and the potential effects on socio-economically disadvantaged groups. The comment is correct in stating that the same level of analysis was not given to the future environmental costs.

Based on the preceding comments and responses, the NPS has made no changes to the proposed rule language with regard to PWC operations.

Alternative A would permit PWC use as previously managed within the park before the November 2002 ban in accordance with the Superintendent's compendium. Alternative A is the preferred alternative. Under this alternative, a special regulation would reinstate PWC use in Amistad National Recreation Area wherever motorized vessels are authorized, which includes PWCs. Alternative B would permit PWC use with additional management restrictions on PWC users and concessioners. Alternative C is the no-action alternative and represents the baseline conditions for this economic analysis. Under that alternative, the November 2002 ban would be continued. All benefits and costs associated with Alternatives A and B are measured relative to that baseline.

The primary beneficiaries of Alternatives A and B include the individuals who would use PWCs within the park and the businesses that provide services to PWC users such as rental shops, restaurants, gas stations, and hotels. Additional beneficiaries include the individuals who use PWCs in areas outside the park where PWC users displaced from the park by the ban may have increased their use. Over a ten-year horizon from 2003 to 2012, the present value of benefits to PWC users is expected to range between $1,394,600 and $1,890,700, depending on the alternative analyzed and the discount rate used. The present value of benefits to businesses over the same timeframe is expected to range between $20,300 and $199,900. These benefit estimates are presented in Table 1. The amortized values per year of these benefits over the ten-year timeframe are presented in Table 2.

The primary group that would incur costs under Alternatives A and B would be the park visitors who do not use PWCs and whose park experiences would be negatively affected by PWC use within the park. At Amistad National Recreation Area, non-PWC uses include boating, canoeing, fishing, and hiking. Additionally, the public could incur costs associated with impacts to aesthetics, ecosystem protection, human health and safety, congestion, nonuse values, and enforcement. However, these costs could not be quantified because of a lack of available data. Nevertheless, the magnitude of costs associated with PWC use would likely be greatest under Alternative A, and lower for Alternative B due to increasingly stringent restrictions on PWC use.

Because the costs of Alternatives A and B could not be quantified, the net benefits associated with those alternatives (benefits minus costs) also could not be quantified. While Alternative A would likely impose greater costs than Alternative B, it also would provide greater benefits as well. Given that, a quantification of the costs could reasonably result in Alternative A having the greatest level of net benefits.

This document is a significant rule and has been reviewed by the Office of Management and Budget under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The National Park Service has completed the report “Economic Analysis of Management Alternatives for Personal Watercraft in Amistad National Recreation Area” (MACTEC Engineering and Consulting, Inc. May 2004).

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Actions taken under this rule will not interfere with other agencies or local government plans, policies or controls. This rule is an agency specific rule.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule will have no effects on entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. No grants or other forms of monetary supplements are involved.

(4) This rule does raise novel legal or policy issues. This rule is one of the special regulations being issued for managing PWC use in National Park Units. The National Park Service published general regulations (36 CFR 3.24) in March 2000, requiring individual park areas to adopt special regulations to authorize PWC use. The implementation of the requirement of the general regulation continues to generate interest and discussion from the public concerning the overall effect of authorizing PWC use and National Park Service policy and park management.

The Department of the Interior certifies that this rulemaking will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This certification is based on a report entitled “Economic Analysis of Management Alternatives for Personal Watercraft in Amistad National Recreation Area” (MACTEC Engineering and Consulting, Inc., May 2004).

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

a. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

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

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. This rule is an agency specific rule and does not impose any other requirements on other agencies, governments, or the private sector.

In accordance with Executive Order 12630, the rule does not have significant takings implications. A taking implication assessment is not required. No taking of personal property will occur as a result of this rule.

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This proposed rule only affects use of NPS administered lands and waters. It has no outside effects on other areas by allowing PWC use in specific areas of the park.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This regulation does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required. An OMB Form 83-I is not required.

The National Park Service has analyzed this rule in accordance with the criteria of the National Environmental Policy Act and has prepared an Environmental Assessment (EA). The EA was available for public review and comment from April 9, 2003 to May 10, 2003. Additionally, a Finding of No Significant Impact (FONSI) was completed and signed on April 29, 2004. Copies of the environmental assessment and the FONSI may be downloaded at http://www.nps.gov/amis/pwc. pdf or obtained at park headquarters Monday through Friday, 8 a.m. to 5 p.m., just west of Del Rio at 4121 Hwy 90 W. Mail inquiries should be directed to: Amistad National Recreation Area, HCR 3 Box 5J, Del Rio, TX 78840, Phone (830) 775-7491.

In accordance with the President's memorandum of April 29, 1994, “Government to Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects. There are 17 tribes with historical ties to the lands of the Amistad NRA. However, none of those tribes have any current association with Amistad nor are there any tribes with close geographic ties to the area. Since any actions the park proposes in this rule are not expected to have any effects on these 17 tribes, no consultation has occurred.

This final rule is effective upon publication in the Federal Register . In accordance with the Administrative Procedure Act, specifically, 5 U.S.C. 553(d)(1), this rule, 36 CFR 7.57(h), is exempt from the requirement of publication of a substantive rule not less than 30 days before its effective date.

As discussed in this preamble, the final rule is a part 7 special regulation for Amistad National Recreation Area that relieves the restrictions imposed by the general regulation, 36 CFR 3.24. The general regulation, 36 CFR 3.24, prohibits the use of PWC in units of the national park system unless an individual park area has designated the use of PWC by adopting a part 7 special regulation. The proposed rule was published in the Federal Register (68 FR 60305) on October 22, 2003, with a 60-day period for notice and comment consistent with the requirements of 5 U.S.C. 553(b). The Administrative Procedure Act, pursuant to the exception in paragraph (d)(1), waives the section 553(d) 30-day waiting period when the published rule “grants or recognizes an exemption or relieves a restriction.” In this rule the NPS is authorizing the use of PWCs, which is otherwise prohibited by 36 CFR 3.24. As a result, the 30-day waiting period before the effective date does not apply to the Amistad National Recreation Area final rule.

The Attorney General's Manual on the Administrative Procedure Act explained that the “reason for this exception would appear to be that the persons affected by such rules are benefited by them and therefore need no time to conform their conduct so as to avoid the legal consequences of violation. The fact that an interested person may object to such issuance, amendment, or repeal of a rule does not change the character of the rule as being one ‘granting or recognizing exemption or relieving restriction,’ thereby exempting it from the thirty-day requirement.” This rule is within the scope of the exception as described by the Attorney General's Manual and the 30-day waiting period should be waived. See also, Independent U.S. Tanker Owners Committee v. Skinner , 884 F.2d 587 (DC Cir. 1989). In this case, the court found that paragraph (d)(1) is a statutory exception that applies automatically for substantive rules that relieves a restriction and does not require any justification to be made by the agency. “In sum, the good cause exception must be invoked and justified; the paragraph (d)(1) exception applies automatically” (884 F.2d at 591). The facts are that the NPS is promulgating this special regulation for the purpose of relieving the restriction, prohibition of PWC use, imposed by 36 CFR 3.24 and therefore, the paragraph (d)(1) exception applies to this rule.

In accordance with the Administrative Procedure Act, this rule is also excepted from the 30-day waiting period by the “good cause” exception in 5 U.S.C. 553(d)(3) and is effective upon publication in the Federal Register . As discussed above, the purpose of this rule is to comply with the 36 CFR 3.24 requirement for authorizing PWC use in park areas by promulgating a special regulation. “The legislative history of the APA reveals that the purpose for deferring the effectiveness of a rule under section 553(d) was ‘to afford persons affected a reasonable time to prepare for the effective date of a rule or rules or to take other action which the issuance may prompt.’ S. Rep. No. 752, 79th Cong., 1st Sess. 15 (1946); H.R. Rep. No. 1980, 79th Cong., 2d Sess. 25 (1946).” United States v. Gavrilovic , 551 F.2d 1099, 1104 (8th Cir. 1977). The persons affected by this rule are PWC users and delaying the implementation of this rule for 30 days will not benefit them; but instead will be counterproductive by denying them, for an additional 30 days, the benefits of the rule.

On December 12, 2003, the National Park Service published a Notice of Proposed Rulemaking for the operation of PWC at Lake Meredith National Recreation Area (68 FR 17292). The proposed rule for PWC use was based on alternative B in the Environmental Assessment (EA) prepared by NPS for Lake Meredith NRA. The EA was available for public review and comment from March 10 to April 9, 2003, and the NPRM was available for public comment from December 12, 2003 to February 10, 2004.

The purpose of the Environmental Assessment was to evaluate a range of alternatives and strategies for the management of PWC use, ensuring the protection of park resources and values, and offering recreational opportunities as provided for in the National Recreation Area's enabling legislation, purpose, mission, and goals. The analysis assumed an alternative would be implemented beginning in 2002 and considered a 10-year use period, from 2002 to 2012. The Environmental Assessment evaluated three alternatives concerning the use of PWC at Lake Meredith National Recreation Area. Alternative A allows PWC use under a special regulation that includes certain current provisions of the Superintendent's Compendium. Alternative B allows continued PWC operation similar to alternative A, but use is further restricted to reduce conflicts between fishermen and PWC operators in lake areas and to protect water resources by designating and marking “Flat Wake” zones in a number of the canyons. In addition to the two alternatives for allowing restricted PWC use, a no-action alternative was considered that would continue the prohibition of all PWC use within the National Recreation Area. All three alternatives were evaluated with respect to PWC impacts on water quality, air quality, soundscapes, wildlife and wildlife habitat, threatened, endangered, or special concern species, shoreline vegetation, visitor experience, visitor conflict and safety, and cultural resources.

Based on the Environmental Assessment, NPS determined that alternative B is the park's preferred alternative for managing PWC use. Alternative B is also considered the environmentally preferred alternative.

The proposed rule was published for public comment on December 12, 2003 (68 FR 69358), with the comment period lasting until February 10, 2004. The National Park Service received 2,870 timely written responses regarding the proposed regulation. Of the responses, 2,512 were form letters in 7 separate formats, 345 were signatures on a petition, and 14 were separate letters. Of the 14 separate letters, 9 were from individuals, 4 from organizations, and 1 from a public agency. Within the following discussion, the term “commenter” refers to an individual, organization, or public agency that responded. The term “comments” refers to statements made by a commenter.

1. Several commenters, including Bluewater Network and the American Canoe Association, stated that the Environmental Assessment failed to use the best data available and picked Alternative B without adequate scientific justification.

NPS Response: None of the alternatives evaluated in the Environmental Assessment resulted in significant adverse or beneficial impacts. The NPS chose the preferred alternative, continued PWC use with restrictions, because it appears to meet the needs of most park visitors while continuing to protect the environment. If the EA process would have discovered significant impacts from PWC use at LAMR than an EIS would have been prepared or a different course of action would have been pursued. To the contrary the environmental impacts discovered during the EA process revealed no significant reasons for not moving forward with the preferred alternative. A summary of the NPS rulemaking and associated personal watercraft litigation is provided in chapter 1, Purpose of and Need for Action, Background, of the EA. NPS believes it has complied with the National Environmental Policy Act (NEPA) and has properly assessed the impacts of personal watercraft on the resources of Lake Meredith National Recreation Area using the best available data for the analysis. This analysis was done for every applicable impact topic with the best available data, consistent with the Council on Environmental Quality regulations (40 CFR 1502.22). Where data was lacking, best professional judgment prevailed using assumptions and extrapolations from scientific literature, other park units where personal watercraft are used, and personal observations of park staff.

The NPS believes that the Environmental Assessment is in full compliance NEPA, and the Finding of No Significant Impact (FONSI) demonstrates that decision has been adequately analyzed and explained.

2. Several commenters stated that allowing PWC use with additional restrictions violates the park's enabling legislation and NPS mandate to protect resources from harm.

NPS Response: NPS analysis in the EA shows that PWC use will not violate the Lake Meredith National Recreation Area's enabling legislation or NPS' mandate to protect resources in the Organic Act. The authorizing legislation for Lake Meredith was considered when developing alternatives for the Environmental Assessment. The objective of the Environmental Assessment, as described in the “Purpose and Need” Chapter, was derived from the enabling legislation for Lake Meredith. As further stated in that chapter, a special analysis on the management of personal watercraft was also provided under each alternative to meet the terms of the settlement agreement between the Bluewater Network and the National Park Service. As required by NPS policies, the impacts associated with personal watercraft and other recreational uses are evaluated under each alternative to determine the adverse impacts, including the potential for impairment to park resources. The recreation area's enabling legislation also states that the “Secretary shall administer Lake Meredith National Recreation Area for general purposes of public outdoor recreation.” The recreation area was established by Congress “to provide for public outdoor recreation use and enjoyment of the lands and waters associated with Lake Meredith in the State of Texas and to protect the scenic, scientific, cultural, and other values contributing to the public enjoyment of such lands and waters.” The NPS must allow for appropriate public uses of the national recreation area while effectively managing park resources. The EA did not determine that any of the resource areas would be adversely impacted by the preferred alternative.

3. One commenter stated that in preparing the Environmental Assessment, the NPS did not adequately consult with and seek the expertise of various agencies, which appears to violate the NPS' PWC regulations.

NPS Response: The final PWC regulation published by the NPS in March 2000 indicates that we intend to seek the expertise of the U.S. Environmental Protection Agency (EPA), OSHA and other relevant agencies and literature when deciding whether to allow continued PWC use in units of the National Park System. The Environmental Assessment references EPA and OSHA regulations and studies throughout. For example, the EPA Web site was visited and LAMR information was retrieved and studied. EPA rated LAMR as a “IWI”, #1 on the watershed health scale (“better quality/less vulnerability”). In addition, we sent out 123 letters to other federal, state, local agencies including U.S. Fish and Wildlife, Texas Parks and Wildlife, Bureau of Reclamation, Texas Commission on Environmental Quality (the state agency charged with application of EPA regulations in Texas), U.S. Coast Guard, Department of Energy/Pantex Environmental Division, U.S. Department of the Army Corps of Engineers, Quaachita National Forest, numerous Indian tribes, several Audubon groups, Biodiversity Legal Foundation, Environmental Defense, Lake Meredith Aquatic and Wildlife Museum, Marina at Lake Meredith, several museums, Natural Resources Conservation Service, Texas Nature Conservancy, Wilderness Society, State and Federal representatives and senators, Canadian River Municipal Water Authority, Hutchison County Historical Commission, Groundwater Conservation District No. 3, Chamber of Commerce, Archeologists from Intermountain Support Office, Texas Archeology Society, Texas General Land Office, Palo Duro State Park. We feel we have conducted consultation as required by various Acts and Executive Orders as well as the intent of the March 2000 PWC regulations.

4. Several commenters stated that the decision violates the Organic Act and will result in the impairment of resources.

NPS Response: The “Summary of Laws and Policies” section in the “Environmental Consequences” chapter of the PWC Use EA summarizes the three overarching laws that guide the National Park Service in making decisions concerning protection of park resources. These laws, as well as others, are also reflected in the NPS Management Policies. An explanation of how the Park Service applied these laws and policies to analyze the effects of personal watercraft on Lake Meredith National Recreation Area resources and values can be found under “Impairment Analysis” in the “Methodology” section.

An impairment is an impact that, in the professional judgement of the NPS manager, would harm the integrity of park resources or values. In the analysis used in the PWC use EA, an impairment to a particular park resource or park value must rise to the magnitude of a major impact, as defined by factors such as context, duration, and intensity. For each resource topic, the Environmental Assessments establish thresholds or indicators of magnitude of impact. An impact approaching a “major” level of intensity is one indication that impairment could result. For each impact topic, when the intensity approached “major,” the park would consider mitigation measures to reduce the potential for “major” impacts, thus reducing the potential for impairment.

The National Park Service has determined that under the preferred alternative, Alternative B, there will be no negative impacts on park resources or values.

5. Several commenters stated that research indicated that direct-injection 2-stroke engines are dirtier than 4-stroke engines.

NPS Response: It is agreed that two-stroke carbureted and two-stroke DI engines generally emit greater amounts of pollutants than four-stroke engines. However, as a result of the EPA rule requiring the manufacturing of cleaner PWC engines, the existing carbureted two-stroke PWC will, over time, be replaced with either two-stroke direct injection or 4-stroke PWCs and both are less-polluting engines. This replacement, with the anticipated resultant improvement in air quality, is parallel to that experienced in urban environments as the automobile fleet becomes cleaner over time.

6. One commenter stated that the analysis disregarded or overlooked relevant research regarding impacts to water quality from PWC use as well as the impact to downstream resources and long term site specific water quality data on PWC pollutants.

NPS Response: The protection of water quality within the national recreation area has been addressed in the EA in a conservative evaluation of surface water quality impacts. Because site-specific water quality data on organic compounds were not available for Lake Meredith and collection of these data was beyond the scope of the EA, therefore a conservative modeling approach was developed and applied to evaluate impacts to water quality from PWC and other motorized vessel use.

Estimated minimum threshold volumes of water were determined for the PWC use areas where concentrations of gasoline constituents discharged from personal watercraft and other outboard engines could potentially be toxic to aquatic organisms or humans. Using the estimated threshold volumes, volumes of the areas being evaluated, PWC and other motorized vessel high-use-day loadings of inorganic chemicals identified as constituents of gasoline, and water quality benchmarks, it is possible to identify potentially unacceptable impacts to human health or the environment. Chronic water quality benchmarks protective of aquatic populations and protective of human health were acquired from various sources, including USEPA water quality criteria.

The EA states that in 2002 under both Alternative A and B, impacts to water quality in Lake Meredith from PWCs on a high-use day would be negligible for all chemicals evaluated based on ecological benchmarks and human health benchmarks. In 2012, impacts would also be negligible based on all ecological and human health benchmarks. “Impairment” is clearly defined in the EA on page 75 and is the most severe of the five potential impact categories. The other impact categories starting with the least severe are: negligible, minor, moderate, and major.

7. One commenter stated that the analysis represents an outdated look at potential emissions from an overstated PWC population of conventional 2-stroke engines, and underestimated the accelerating changeover to 4-stroke and newer 2-stroke engines. The net effect is that the analysis overestimates potential PWC hydrocarbon emissions, including benzene and PAHs, to the water in Lake Meredith.

NPS Response: NPS agrees. The NPS water quality impact assessment utilized conservative (protective) assumptions where site-specific data were missing or incomplete. For some variables such as the number of PWC (total of 70), this number was based on the number of vessels expected on a high-use day. It can be considered a conservative estimate, but it is not “unrealistic” since it was based on State of Texas and Lake Meredith National Recreation Area data. Despite these conservative estimates, impacts to water quality from personal watercraft are judged to be negligible for all alternatives evaluated. Cumulative impacts from personal watercraft and other outboard motorized vessels are expected to be negligible to moderate. If the assumptions used were less than conservative, the conclusions could not be considered protective of the environment, while still being within the range of expected use.

The assumption of all personal watercraft using 2-stroke engines in 2002 is recognized as conservative. It is protective of the environment yet follows the emission data available in CARB (1998) and Bluewater Network (2001) at the time of preparation of the EA. The emission rate of 3 gallons per hour at full throttle is a mid-point between 3 gallons in two hours (1.5 gallons per hour; NPS 1999) and 3.8 to 4.5 gallons per hour for an average 2000 model year personal watercraft (Personal Watercraft and Bluewater Network 2001). The assumption also is reasonable in view of the initiation of production line testing in 2000 (EPA 1997) and expected full implementation of testing by 2006 (EPA 1996).

Reductions in emissions used in the water quality impact assessment are in accordance with the overall hydrocarbon emission reduction projections published by the EPA (1996). EPA (1996) estimates a 52% reduction by personal watercraft by 2010 and a 68% reduction by 2015. The 50% reduction in emissions by 2012 (the future date used in the EA) is a conservative interpolation of the emission reduction percentages and associated years (2010 and 2015) reported by the EPA (1996) but with a one-year delay in production line testing (EPA 1997).

The NPS used emission reduction estimates from the EPA (1996) that are readily available for public review and not confidential sales information. Because the Sierra Research analysis is based on “* * *confidential sales information* * *”, the NPS cannot evaluate the assumptions in the Sierra Research analysis. The NPS did not “ignore” the manufacturers’ confidential sales data.

Use of the Sierra information, if verified, could have potentially reduced the calculated water quality threshold volumes. However, impact estimates for personal watercraft are already negligible (EA pages 34 and 75-80), using the impact threshold descriptions provided on page 75 of the EA. Impacts to water quality from other motorized vessels are potentially more significant than those due to personal watercraft. Therefore, cumulative impacts from personal watercraft and other motorized vessels, which are negligible to moderate, would not be reduced substantially by the inclusion of the Sierra emission reduction projections for personal watercraft.

8. One commenter stated that the water quality analysis uses assumptions that result in overestimation of potential PWC hydrocarbon emission to the water in Lake Meredith. For example benzo(a)pyrene concentrations in gasoline range from 0.19 to 2.8 mg/kg but the NPS chooses the highest figure for the analysis.

NPS Response: As stated in responses to earlier comments, protection of water quality in the national recreation area was addressed in a conservative evaluation. Therefore, the use of 2.8 mg/kg as an estimated concentration of benzo(a)pyrene in gasoline is a reasonable assumption that is in range of possible concentrations. Even with this and other conservative assumptions, impacts from PWC were determined to be negligible. Evaporation of benzene was not factored into the discussion because water quality impacts already were negligible and could not be reduced to a lower impact threshold.

9. One commenter stated that the analysis failed to mention the impact of PWC permeation losses on local air quality.

NPS Response: Permeation losses of VOCs from personal watercraft were not included in the calculation of air quality impacts primarily because these losses are insignificant relative to emissions from operating watercraft. Using the permeation loss numbers in the comment (estimated to be half the total of 7 grams of losses per 24 hours from the fuel system), the permeation losses per hour are orders of magnitude less than emissions from operating personal watercraft. Therefore, including permeation losses would have no effect on the results of the air quality impact analyses. Also, permeation losses were not included because of numerous related unknown contributing factors such as number of personal watercraft refueling at the reservoir and the location of refueling (inside or outside of the airshed).

10. One commenter stated that the use of air quality data from Amarillo, 45 miles from Lake Meredith, in the analysis does not provide the best representation of air quality at the lake.

NPS Response: The Amarillo monitoring station is the closest air quality monitoring site to the study area. The data from this site were discussed in the EA; however, these data were not used in the impact analysis. The analysis was based on the results of an EPA air emission model, which used estimated PWC and vessel usage at Lake Meredith NRA as inputs.

11. One commenter expressed concern that PWC emissions were declining faster than forecasted by the EPA. As the Sierra Report documents, in 2002, HC + NO X emissions from the existing fleet of PWC were already 23% lower than they were before the EPA regulations became effective, and will achieve reductions greater than 80% by 2012.

NPS Response: The U.S. EPA's data incorporated into the 1996 Spark Ignition Marine Engine rule were used as the basis for the assessment of air quality, and not the Sierra Research data. It is agreed that these data show a greater rate of emissions reductions than the assumptions in the 1996 Rule and in the EPA's NONROAD Model, which was used to estimate emissions. However, the Sierra Research report has not been used in the EA for reasons of consistency and conformance with the model predictions. Most states use the EPA's NONROAD Model for estimating emissions from a broad array of mobile sources. To provide consistency with state programs and with the methods of analysis used for other similar NPS assessments, the NPS has elected not to base its analysis on focused research such as the Sierra Report for assessing PWC impacts.

It is agreed that the Sierra Research report also provides data on “worst case” scenarios. However worst case or short-term scenarios were not analyzed for air quality impacts in this or other NPS EAs.

It is agreed that the relative quantity of HC + NO X are a very small proportion of the county based emissions and that this proportion will continue to be reduced over time. The EA takes this finding into consideration in the analysis.

Improved PWCs may be used in increasing numbers; however the data of overall use of this engine type nationwide is not well established. For consistency and conformity in approach, the NPS has elected to rely on the assumptions in the 1996 S.I Engine Rule which are consistent with the widely used NONROAD emissions estimation Model. The outcome is that estimated emissions from combusted fuel may be in the conservative range, if compared to actual emissions.

12. One commenter stated that continued PWC use in the Lake Meredith NRA will not result in sound emissions that exceed the applicable federal or state noise abatement standards, and technological innovations by the PWC companies will continue to result in substantial sound reductions.

NPS Response: The EA provides an analysis of impacts of personal watercraft on many aspects of the environment. The level of impact predicted for many of the resources or values included in the assessment is negligible to minor, or minimal impact. However, in some cases moderate or potentially major impacts are predicted, and this is based on the specific resource or value affected and the impact threshold levels used in the analysis.

13. One commenter stated that the NPS places too much hope in new technologies significantly reducing PWC noise since there is little possibility that the existing fleet of more than 1.1 million machines (most of which are powered by conventional two-stroke engines) will be retooled to reduce noise.

NPS Response: The analysis of the preferred alternative states that noise from PWC would continue to have minor, short-term adverse impacts, and that impact levels would be related to number and type (age) of PWC and sensitivity of park visitors. This recognizes that noise will occur and will bother some visitors, but site-specific modeling was not needed to make this assessment. The availability of noise reduction technologies is also growing, and we are not aware of any scientific research that shows these technologies do not reduce engine noise levels to some extent. Also, the analysis did not rely heavily on any noise reduction technology. It recognizes that the noise from the operation of PWC will always vary, depending on the speed, manner of use, and wave action present.

Additionally, the average operating life of a PWC is 5 to 10 years, depending upon the source. As a result, it is expected that the majority of existing PWC will be replaced with quieter, new technology PWC in the near future.

14. One commenter stated that the analysis lacked site-specific data for impacts to wildlife, fish, and threatened and endangered species at Lake Meredith.

NPS Response: The EA did not include site specific studies regarding potential effects of PWC use on wildlife species at Lake Meredith National Recreation Area. Analysis of potential impacts of PWC use on wildlife at the national recreation area was based on best available data, input from park staff, and the results of analysis using that data.

15. One commenter stated that PWC use and human activities associated with their use may not be any more disturbing to wildlife species than any other type of motorized or non-motorized vessels. The commenter cites research by Dr. James Rodgers, of the Florida Fish and Wildlife Conservation Commission, whose studies have shown that PWC are no more likely to disturb wildlife than any other form of human interaction. PWC posed less of a disturbance than other vessel types. Dr. Rodgers' research clearly shows that there is no reason to differentiate PWC from motorized vessels based on claims on wildlife disturbance.

NPS Response: Based on the documents provided as part of this comment, it appears that personal watercraft are no more apt to disturb wildlife than are small outboard motorized vessels. In addition to this conclusion, Dr. Rodgers recommends that buffer zones be established, creating minimum distances between vessels (personal watercraft and outboard motorized vessels) and nesting and foraging waterbirds. In Lake Meredith National Recreation Area, a 50-foot wide area along the shoreline is already established under the Texas Water Safety Act where the use of personal watercraft is restricted to flat wake speed only. With this restriction in mind, impacts to wildlife and wildlife habitat under all three alternatives were judged to be negligible at most locations along the shoreline.

16. One commenter stated that wildlife biologists are finding that PWC cause lasting impacts to fish and wildlife.

NPS Response: It is anticipated that more combustion-efficient engines in personal watercraft will reduce pollutant emissions to air and water in the same manner as increased efficiencies in automobile engines combined with catalytic converters and other technologies decreased the amount and types of automobile exhaust emissions. EPA-sponsored evaluations of different personal watercraft engine designs and emissions concluded that emission reductions would result with implementation of the EPA emission standards for marine engine. The preferred alternative provides for further protection of wildlife in the recreation area. Establishing new flat wake zones under the preferred alternative (Alternative B) would reduce impacts to aquatic and shoreline species by reducing the discharge of fuel components into the water. These reductions should indirectly benefit wildlife by reducing some of the contaminant loading of surface waters.

PAH toxicity to fish and wildlife species is a complicated topic because PAHs consists of dozens of different chemical compounds, each of which has substantially different toxicity characteristics in water, sediment, and soils, and toxicity varies dramatically among different fish and wildlife species. The ecological toxicity analysis for PAHs reported in the Environmental Assessment explains the chemical, physical, and biological conditions that were used to conduct the assessment of PAH effects to fish species.

17. One commenter stated that there has been no documentation of any adverse effects to shoreline vegetation from PWC use.

NPS Response: The NPS recognizes that scientists do not agree on the potential for impacts to aquatic vegetation from personal watercraft. However, personal watercraft, because of their design, can potentially operate in shallower water than conventional outboard motorized vessels, and it is not possible to say if all operators fully adhere to manufacturer's recommendations. Impacts to shoreline vegetation are expected to be negligible.

18. Several commenters stated that the NPS analysis downplayed the threat PWC pose to the visiting public.

NPS Response: According to the National Marine Manufacturers Association, PWC manufacturers have sold roughly 1.2 million personal watercraft during the last ten years. Out of 1.2 million PWC sold the U.S. Coast Guard had only 90 reports of fires/explosions in the years from 1995-1999. This is less than 1% of PWCs having reports of problems associated with fires/explosions. As far as the recall campaigns conducted by Kawasaki and Bombardier, the problems that were associated with fuel tanks were fixed. Kawasaki conducted a recall for potentially defective fuel filler necks and fuel tank outlet gaskets on 23,579 models from the years 1989 and 1990. The fuel tank problems were eliminated in Kawasaki's newer models, and the 1989 and 1990 models are most likely not in use anymore since life expectancy of a PWC is only five to seven years according to PWIA. Bombardier also did a recall for its 1993, 1994, and 1995 models to reassess possible fuel tank design flaws. However, the number of fuel tanks that had to be recalled was a very small percent of the 1993, 1994, and 1995 fleets because fuel tank sales only amounted to 2.16% of the total fleet during this period (Bombardier Inc.). The replacement fuel tanks differed from those installed in the personal watercraft subject to the recall in that the replacement tanks had revised filler neck radiuses, and the installation procedure now also requires revised torque specifications and the fuel system must successfully complete a pressure leak test. Bombardier found that the major factor contributing to PWC fires/explosions was over-torquing of the gear clamp. Bombardier was legally required by the U.S. Coast Guard to fix 9.72% of the recalled models. Out of 125,349 recalls, the company repaired 48,370 units, which was approximately 38% of the total recall, far exceeding their legal obligation to repair units with potential problems.

Further fuel tank and engine problems that could be associated with PWC fires has been reduced significantly since the National Marine Manufacturers Association set requirements for meeting manufacturing regulations established by the U.S. Coast Guard. Many companies even choose to participate in the more stringent Certification Program administered by the National Marine Manufacturers Association (NMMA). The NMMA verifies annually, or whenever a new product is put on the market, vessel model lines to determine that they satisfy not only the U.S. Coast Guard Regulations but also the more rigorous standards based on those established by the American Boat and Yacht Council.

19. One commenter stated that the presence of PWC monopolizes the recreational environment and adversely impacts the wide range of diverse uses favored by a majority of visitors and therefore allowing PWC use is not the best course of action.

NPS Response: PWC account for approximately 20% of all watercraft used on Lake Meredith each year. Additionally, during 2001 PWC were approximately 2% of total Lake Meredith NRA visitation. None of the alternatives evaluated in the Environmental Assessment resulted in substantial adverse or beneficial impacts. The NPS chose the preferred alternative, Continued PWC Use with Restrictions, because it appeared to meet the needs of most park visitors while continuing to protect the environment.

20. One commenter stated that Alternative B would require more permanent staff and vessels to enforce the new restrictions.

NPS Response: The NPS believes that operation of PWC in the recreation area would not require more staff than that required for increased monitoring of all vessels because (1) the number of PWC operating within the recreation area is small in comparison to the number of other motorized vessels, (2) the location of PWC operation is separated from most other visitors (excluding motorized vessels) and (3) the increased patrols necessary to monitor all boating traffic would increase the observed presence of policing such that all infractions would likely decrease.

21. One commenter stated that the conclusion that PWC use poses a health and safety risk “primarily to the operators” themselves is mistaken and the analysis does not adequately assess the safety threat posed to park visitors by PWC use.

NPS Response: Incidents involving vessels of all types, including personal watercraft, are reported to and logged by National Park Service staff. A very small proportion of incidents on the lake are estimated to go unreported. The accident data for the five-year period of 1997 through 2001 displays a consistent pattern and differs from nationally reported results for all vessels. In the “Visitor Conflicts and Visitor Safety” section of the “Affected Environment” chapter, it is reported that personal watercraft represent 20 percent of the vessels on the lake but did not exceed 3 percent of all vessel accidents over the five year time period.

22. Several commenters stated that there is no basis to impose flat wake restrictions on PWC only, as proposed in Alternative B, and doing so would endanger all boaters. For these reasons, any flat wake zones established under the special regulation in the 11 back coves (or any other areas) should be applied to all motorized vessels, not just PWC.

NPS Response: The proposed flat wake zones under Alternative B would apply to all motorized vessels. The description of Alternative B on p. 24 does not indicate that the flat wake zone applies only to PWC. However, vessels other than PWC are regulated through other mechanisms and are therefore not addressed in the language for this regulation.

23. One commenter stated that the accident data used in the analysis was outdated and incorrect because PWC accidents are reported more often than other boating accidents.

NPS Response: Incidents involving vessels of all types, including personal watercraft, are reported to and logged by National Park Service staff. A very small proportion of incidents on the lake are estimated to go unreported. The accident data for the five-year period of 1997 through 2001 displays a consistent pattern and differs from nationally reported results for all vessels. In the “Visitor Conflicts and Visitor Safety” section of the “Affected Environment” chapter, it is reported that personal watercraft represent 20 percent of the vessels on the lake but did not exceed 3 percent of all vessel accidents over the five year time period.

24. One commenter stated that the analysis refers to a potential concern that the ability of PWC operators to access remote areas of the park unit might make certain cultural, archeological and ethnographic sites vulnerable to looting or vandalism. However, there is no indication of any instances where these problems have occurred. Nor is there any reason to believe that PWC users are any more likely to pose these concerns than canoeists, kayakers, hikers, or others who might access these same areas.

NPS Response: The EA was focused on the analysis of impacts from PWC use. PWC can make it easier to reach some remote upstream areas, compared to hiking to these areas, but we agree that the type of impacts to cultural resources from any users of remote areas of the park would be similar if they can reach these areas.

25. Two commenters commented that the analysis did not adequately assess socioeconomic impacts on the regional economy.

NPS Response: The study looked at the potential effect that the ban would have on the local economy, and the potential effects on socio-economically disadvantaged groups. The socioeconomic study did not address the future potential costs of environmental damage. The preferred alternative does not include an elimination of PWC, but rather restrictions on area of use and speed. If a decrease in PWC use occurred due to the proposed restrictions, there could be some reductions in PWC-related revenues. However, given the low levels of PWC use at Lake Meredith and the fact that a total ban is not proposed, impacts on local and regional economics would not result in significant negative socioeconomic impacts.

Based on the preceding comments and responses, the NPS has made no changes to the proposed rule language with regard to PWC operations.

Alternative A would permit PWC use as previously managed within the park before the November 2002 ban, while Alternative B would permit PWC use with additional management strategies to reduce user conflicts and to protect water resources. Alternative B is the preferred alternative, and includes no-wake zones, PWC fueling requirements, and water quality monitoring. Alternative C is the no-action alternative and represents the baseline conditions for this economic analysis. Under that alternative, the November 2002 ban would be continued. All benefits and costs associated with Alternatives A and B are measured relative to that baseline.

The primary beneficiaries of Alternatives A and B include the individuals who would use PWCs within the park and the businesses that provide services to PWC users such as rental shops, restaurants, gas stations, and hotels. Additional beneficiaries include the individuals who use PWCs in areas outside the park where PWC users displaced from Lake Meredith by the ban may have increased their use. Over a ten-year horizon from 2003 to 2012, the present value of benefits to PWC users is expected to range between $3,520,980 and $4,676,120, depending on the alternative analyzed and the discount rate used. The present value of benefits to businesses over the same timeframe is expected to range between $137,580 and $1,012,360. These benefit estimates are presented in Table 1. The amortized values per year of these benefits over the ten-year timeframe are presented in Table 2.

This supplemental information section is organized as follows:

No, this action applies to a single source, the Louis Berkman Company, doing business as the Swenson Spreader Company, in Lindenwood, Ogle County, Illinois. This rulemaking action merely approves an adjusted State standard into the SIP, making it federally enforceable under the Act.

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, 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 claimed as CBI. In addition to one complete version of the comment that includes 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 public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

i. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

ii. Follow directions—The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns, and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

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

We are approving into the Illinois SIP an adjusted standard for the emissions limit applicable to the painting operations at Swenson's plant located in Lindenwood, Ogle County, Illinois. Section 215.204(j)(2) of the Illinois Administrative Code establishes a limit for the miscellaneous metal parts and products category of 3.5 pounds of VOM  1 per gallon of coating (lbs VOM/gal) for air dried coating operations. The Illinois Pollution Control Board (IPCB) granted Swenson a ten year adjusted standard from section 215.204(j)(2) on May 7, 1998. Under the adjusted standard Swenson is limited to a monthly average of 4.75 lbs VOM/gal until May 7, 2008.

In the September 19, 2003 submission, IEPA requested that EPA approve revisions that are specific to Swenson's painting operations at its Lindenwood, Illinois plant. Swenson is an original equipment manufacturer of snow and ice control equipment. The primary purchaser of Swenson's products are federal, state, and local governmental agencies. Because many of these agencies specify the type of paint to use, the coatings Swenson uses to paint its products often have a VOM content greater than the state standard of 3.5 lb/gal.

Swenson manufactures snow and ice removal equipment at its Lindenwood, Ogle County, Illinois plant. Ogle County is in attainment of the ozone National Ambient Air Quality Standards (NAAQS). Part of the manufacturing process includes applying one or more coatings of paint. Section 215.204 of the Illinois Administrative Code (35 Ill. Adm. Code) governs VOM emissions from manufacturing plants. Specifically, 35 Ill. Adm. Code Section 215.204(j)(2) applies to Swenson. According to that section, VOM emissions from air-dried miscellaneous metal parts and products coatings may not exceed 3.5 lb/gal. Manufacturers that emit less than 25 tons of VOM per year are exempt from this limitation. EPA approved 35 Ill. Adm. Code Section 215.204 into the Illinois SIP on January 15, 1999, at 64 FR 2581.

In its request for an adjusted standard, Swenson states that the primary purchaser of its products are governmental agencies which often specify the type of paints to use and/or coating thicknesses to achieve on the products they order. Many of these paints contain more than 3.5 lbs VOM/gal and, therefore, do not comply with 35 Ill. Adm. Code Section 215.204(j)(2). In addition, the size and shape of its products make relatively high solvent use necessary for proper adhesion characteristics and the specified coating thicknesses cannot be achieved with water-based coatings. Swenson's average annual VOM emissions were 31.8 tons between 1992 and 1996.

Swenson filed its motion for an adjusted standard with the IPCB on October 11, 1996. In its petition, Swenson requested a VOM limit of 5.25 lb/gal monthly average for the first year, and a VOM limit of 5.00 lb/gal monthly average for the second year and beyond following the adjusted standard approval. Swenson based the higher VOM limit for the first year on its existing stocks of VOM paint. Swenson noted in its petition that the 5.00lb/gal limit is more stringent than the relief IPCB granted to a number of other companies in the past. Swenson filed an amendment to its petition on May 16, 1997. In the amended petition Swenson requested a VOM limit of 5.00 lb/gal monthly average for the first year, and a VOM limit of 4.75 lb/gal monthly average for the second year and beyond, following the adjusted standard approval.

On February 21, 1997, IEPA submitted to IPCB a recommendation to deny Swenson's petition. IEPA commented that Swenson failed to prove that it is unable to comply with the requirements of section 215.204(j). Two public hearings were held before the IPCB, the first on April 17, 1997, in Oregon, Illinois, and the second on May 21, 1997, in Springfield, Illinois. Evidence was provided at these hearings about the feasibility of different emission reduction methods, including the installation of an afterburner or a powder coating system, and reformulating the paints it uses. Swenson justified the adjusted standard based upon its own technical support demonstrating that the 3.5 lbs VOM/gal limit is technically and economically infeasible. Swenson asserted that the installation of emissions control equipment would impose an unreasonable financial hardship on the company without providing a measurable environmental benefit to the area, and that the area has not had an exceedance of the ozone NAAQS. Further, Swenson states that coatings that satisfy customer requirements and comply with 35 Ill. Adm. Code Section 215.204(j)(2) are currently unavailable.

In a December 4, 1997, Interim Opinion and Order, IPCB granted Swenson an adjusted standard to use coatings that contain, on a monthly average, 4.75 lbs VOM/gal, and made the following findings of fact and conclusions of law:

(1) Coatings that comply with 35 Ill. Adm. Code Section 215.204(j)(2) are not available for Swenson's specialty orders;

(2) The cost that Swenson would incur to comply with regulatory alternatives to 35 Ill. Adm. Code Section 215.204(j)(2) are unreasonable;

(3) The factors are substantially and significantly different from those that IPCB considered when adopting 35 Ill. Adm. Code Section 215.204(j)(2);

(4) An adjusted standard will not result in environmental or health effects substantially and significantly more adverse than those considered by IPCB in adopting 35 Ill. Adm. Code Section 215.204(j)(2); and,

(5) An adjusted standard is consistent with applicable Federal law.

IPCB stated that the adjusted standard will expire ten years from the date of IPCB's final order, since compliant coatings may become available and Swenson's customers may not always require noncompliant coatings. Further, IPCB required Swenson to file a plan for demonstrating compliance with the adjusted standard.

In Swenson's February 3, 1998, Compliance Plan, Swenson identified the following operational initiatives: requesting from paint suppliers reformulated paints with lower VOM emissions; heating the paint lines to the spraying system and purchasing high efficiency electrostatic paint guns to lessen VOM emissions; and, recording all paint purchases and usage to track VOM emissions. To calculate the monthly average of VOM emissions, Swenson proposed to determine the total VOM in pounds delivered to the coating applicator each month and divide that amount by the number of coating gallons used that month. Swenson also identified that it is researching a single booth powder coating system to lower its VOM emissions while fulfilling its sales requirements.

On May 7, 1998, IPCB adopted a Final Opinion and Order, AS 97-5, granting the adjusted standard requested by Swenson. On June 12, 1998, IEPA filed a Motion to Reconsider the IPCB's Final Opinion and Order. The IPCB denied IEPA's motion on July 23, 1998. The IEPA filed an appeal of IPCB's July 23, 1998, order in the Second District Appellate Court of Illinois through the Illinois Attorney General Office. The Court affirmed IPCB's Final Opinions and Orders of May 7, 1998, and July 23, 1998, on November 19, 1999. IEPA formally submitted the adjusted standard for Swenson to EPA on September 19, 2003, as a site-specific revision to the Illinois SIP.

Swenson filed a petition for an adjusted standard with the IPCB on October 11, 1996. Notice of the petition was published in the Ogle County Life on October 21, 1996. IEPA filed a response to Swenson's petition on February 26, 1997. Two public hearings were held before the IPCB, the first on April 17, 1997, in Oregon, Illinois, and the second on May 21, 1997, in Springfield, Illinois.

The EPA has identified VOM control levels that it presumes to constitute reasonably available control technology (RACT) for various categories of sources. However, case-by-case RACT determinations may be developed that differ from EPA's presumptive norm. The EPA will approve these RACT determinations as long as a demonstration is made that they satisfy the Act's RACT requirements based on adequate documentation of the economic and technical circumstances of the particular sources being regulated. To make this demonstration, it must be shown that the current SIP requirements do not represent RACT because pollution control technology necessary to reach the requirements is not and cannot be expected to be reasonably available. The EPA will determine on a case-by-case basis whether this demonstration has been made, taking into account all the relevant facts and circumstances concerning each case. A demonstration must be made that reasonable efforts were taken to determine and adequately document the availability of complying coatings or other kinds of controls, as appropriate. If it is conclusively demonstrated that complying low-solvent coatings are unavailable, the EPA would consider an alternative RACT determination based on the lowest level of VOM control technically and economically feasible for the facility.

Based on the information and technical support IEPA provided in its submittal, the EPA finds that the SIP requirements are not technically or economically feasible for the Swenson Lindenwood facility, and that a limit of 4.75 lbs VOM/gal will not have a negative environmental impact in the area. Further, the adjusted standard will expire ten years from the date of IPCB's final order, since compliant coatings may become available and Swenson's customers may not always require noncompliant coatings. In its plan for demonstrating compliance with the adjusted standard Swenson identified the following operational initiatives: requesting from paint suppliers reformulated paints with lower VOM emissions; heating the paint lines to the spraying system and purchasing high efficiency electrostatic paint guns to lessen VOM emissions; and, recording all paint purchases and usage to track VOM emissions. Swenson also identified that it is researching a single booth powder coating system to lower its VOM emissions while fulfilling its sales requirements. As previously stated, Ogle County is in attainment of the ozone NAAQS. Approval of this requested SIP revision will not increase the historical VOM emission level from this source, and will not interfere with the maintenance of the ozone NAAQS in Ogle County. Therefore, EPA finds this SIP submittal approvable.

EPA is approving into the Illinois SIP an adjusted standard for the VOM content limit applicable to the painting operations at Swenson's plant located in Lindenwood, Ogle County, Illinois. The State submitted this SIP revision on September 19, 2003. Under the adjusted standard Swenson is limited to a monthly average of 4.75 lbs VOM/gal until May 7, 2008.

EPA views the approval of this SIP revision as noncontroversial, and anticipates no adverse comments. However, in a separate document in this Federal Register publication, EPA is proposing approval of the State Plan. Should adverse or critical written comments be filed, EPA will withdraw this direct final rule and address all public comments in a final rule based on the proposed rule published in the proposed rules section of this Federal Register. This approval action will be effective without further notice unless EPA receives relevant adverse written comment by June 28, 2004. Should EPA receive adverse or critical comments, it will publish a final rule informing the public that this action will not take effect. Any parties interested in commenting on this action should do so at this time. If no such comments are received, the public is advised that this action will be effective on July 26, 2004.

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.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTA), 15 U.S.C. 272, requires federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry our policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impracticable. In reviewing program submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a program submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Act. Therefore, the requirements of section 12(d) of the NTTA 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, and has determined that the rule's requirements do not constitute a taking.

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, EPA promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 26, 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).)

The information in this section is organized as follows:

A delisting petition is a request from a facility to the EPA or an authorized State to exclude wastes from the list of hazardous wastes. The facility petitions the EPA because it does not consider the wastes hazardous under RCRA regulations.

In a delisting petition, the petitioner must show that wastes generated at a particular facility do not meet any of the criteria for which the waste was listed. The criteria for which the EPA lists a waste are in part 261 and further explained in the background documents for the listed waste.

In addition, under 40 CFR 260.22, a petitioner must prove that the waste does not exhibit any of the hazardous waste characteristics (ignitability, reactivity, corrosivity, and toxicity) and present sufficient information for the EPA to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste. (See part 261 and the background documents for the listed waste.)

Generators remain obligated under RCRA to confirm whether their waste remains nonhazardous based on the hazardous waste characteristics even if the EPA has “delisted” the waste.

Under 40 CFR 260.20 and 260.22, a generator may petition the EPA to remove its wastes from hazardous waste control by excluding it from the lists of hazardous wastes contained in 40 CFR 261.31 and 261.32. Specifically, 40 CFR 260.20 allows any person to petition the Administrator to modify or evoke any provision of parts 260 through 266, 268, and 273 of Title 40 of the Code of Federal Regulations. 40 CFR 260.22 provides a generator the opportunity to petition the Administrator to exclude a waste on a “generator specific” basis from the hazardous waste lists.

On October 28, 2002, Bekaert petitioned the EPA to exclude from the lists of hazardous waste contained in 40 CFR 261.31 and 261.32, a dewatered WWTP sludge generated from the facility located in Dyersburg, Tennessee. The waste (EPA Hazardous Waste No. F006) is generated by treating wastewater from the copper and zinc electroplating of steel cords for the automobile tire industry. Specifically, in its petition, Bekaert requested that the EPA grant an exclusion for 1250 cubic yards per calendar year of dewatered WWTP sludge resulting from the treatment of waste waters from an electroplating operation at its facility.

A generator must provide sufficient information to allow the EPA to determine that the waste does not meet any of the criteria for which it was listed as a hazardous waste. In addition, where there is a reasonable basis to believe that factors other than those for which the waste was listed (including additional constituents) could cause the waste to be hazardous, the Administrator must determine that such factors do not warrant retaining the waste as hazardous.

To support its petition, Bekaert submitted detailed chemical and physical analysis of the dewatered WWTP sludge generated by its facility.

Today the EPA is finalizing an exclusion for 1250 cubic yards per calendar year of dewatered WWTP sludge resulting from the treatment of waste waters from an electroplating operation at its facility in Dyersburg, Tennessee.

Bekaert petitioned EPA to exclude, or delist, the dewatered WWTP sludge because Bekaert believes that the petitioned waste does not meet the criteria for which it was listed and that there are no additional constituents or factors which could cause the waste to be hazardous. Review of this petition included consideration of the original listing criteria, as well as the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 222 of HSWA, 42 United States Code (U.S.C.) 6921(f), and 40 CFR 260.22(d)(2)-(4).

On February 20, 2004, EPA proposed to exclude or delist Bekaert's dewatered WWTP sludge from the treatment of waste waters from an electroplating operation from the list of hazardous wastes in 40 CFR 261.31 and accepted public comment on the proposed rule (69 FR 7888). EPA received no comments on the proposed rule and for the reasons stated in both the proposal and this document, EPA believes that Bekaert's waste should be excluded from hazardous waste control.

Bekaert must dispose of the WWTP sludge resulting from the treatment of waste waters from an electroplating operation at its facility in a Subtitle D landfill which is permitted, licensed, or registered by a state to manage industrial waste. Any amount of WWTP sludge which is generated in excess of 1250 cubic yards per calendar year is not considered delisted under this exclusion. This exclusion is effective only if all conditions contained in today's rule are satisfied.

This rule is effective May 27, 2004. The Hazardous and Solid Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to become effective in less than six months when the regulated community does not need the six-month period to come into compliance. This rule reduces rather than increases the existing requirements and, therefore, is effective immediately upon publication under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

Because EPA is issuing today's exclusion under the Federal RCRA delisting program, only States subject to Federal RCRA delisting provisions would be affected. This would exclude States who have received authorization from the EPA to make their own delisting decisions.

EPA allows the States to impose their own non-RCRA regulatory requirements that are more stringent than the EPA's, under section 3009 of RCRA, 42 U.S.C. 6929. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the State. Because a dual system (that is, both Federal (RCRA) and State (non-RCRA) programs) may regulate a petitioner's waste, the EPA urges petitioners to contact the state regulatory authority to establish the status of their wastes under the State law.

EPA has also authorized some states to administer a delisting program in place of the federal program to make state delisting decisions. Therefore, this exclusion does not apply in those authorized states. If Bekaert transports the petitioned waste to or manages the waste in any state with delisting authorization, Bekaert must obtain a delisting from that state before it can manage the waste as nonhazardous in the state. Delisting petitions approved by the EPA Administrator under 40 CFR 260.22 are effective in the State of Tennessee only after the final rule has been published in the Federal Register .

No comments were received from the public pursuant to the proposed rule delisting this action.

Under Executive Order 12866, the EPA must conduct an “assessment of the potential costs and benefits” for all “significant” regulatory actions.

The proposal to grant an exclusion is not significant, since its effect, if promulgated, would be to reduce the overall costs and economic impact of the EPA's hazardous waste management regulations. This reduction would be achieved by excluding waste generated at a specific facility from the EPA's lists of hazardous wastes, thus enabling a facility to manage its waste as nonhazardous.

Because there is no additional impact from this proposed rule, this proposal would not be a significant regulation, and no cost/benefit assessment is required. The Office of Management and Budget (OMB) has also exempted this rule from the requirement for OMB review under section (6) of Executive Order 12866.

Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an agency is required to publish a general notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis which describes the impact of the rule on small entities (small businesses, small organizations, and small governmental jurisdictions). No regulatory flexibility analysis is required, however, if the Administrator or delegated representative certifies that the rule will not have any impact on small entities. This rule, if promulgated, will not have an adverse economic impact on small entities since its effect would be to reduce the overall costs of the EPA's hazardous waste regulations and would be limited to one facility. Accordingly, the EPA hereby certifies that this proposed regulation, if promulgated, will not have a significant economic impact on a substantial number of small entities. Therefore, this regulation does not require a regulatory flexibility analysis.

Information collection and recordkeeping requirements associated with this proposed rule have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1980 (Pub. L. 96 511, 44 U.S.C. 3501 et seq. ) and have been assigned OMB Control Number 2050 0053.

Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, which was signed into law on March 22, 1995, the EPA generally must prepare a written statement for rules with Federal mandates that may result in estimated costs to State, local, and tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year.

When such a statement is required for the EPA rules under section 205 of the UMRA, the EPA must identify and consider alternatives. The alternatives must include the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The EPA must select that alternative, unless the Administrator explains in the final rule why it was not selected or it is inconsistent with law.

Before the EPA establishes regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must develop under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, giving them meaningful and timely input in the development of the EPA's regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising them on compliance with the regulatory requirements.

The UMRA generally defines a Federal mandate for regulatory purposes as one that imposes an enforceable duty upon state, local, or tribal governments or the private sector.

The EPA finds that this delisting decision is deregulatory in nature and does not impose any enforceable duty on any State, local, or tribal governments or the private sector. In addition, the proposed delisting decision does not establish any regulatory requirements for small governments and so does not require a small government agency plan under UMRA section 203.

The Executive Order 13045 is entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This order applies to any rule that the EPA determines (1) is economically significant as defined under Executive Order 12866, and (2) the environmental health or safety risk addressed by the rule has a disproportionate effect on children. If the regulatory action meets both criteria, the EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the EPA. This proposed rule is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866.

Because this action does not involve any requirements that affect Indian Tribes, the requirements of section 3(b) of Executive Order 13084 do not apply. Under Executive Order 13084, the EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments.

If the mandate is unfunded, the EPA must provide to the Office Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of the EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation.

In addition, Executive Order 13084 requires the EPA to develop an effective process permitting elected and other representatives of Indian tribal governments to have “meaningful and timely input” in the development of regulatory policies on matters that significantly or uniquely affect their communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Under section 12(d) of the National Technology Transfer and Advancement Act, the EPA is directed to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, business practices, etc. ) developed or adopted by voluntary consensus standard bodies. Where available and potentially applicable voluntary consensus standards are not used by the EPA, the Act requires that the EPA provide Congress, through the OMB, an explanation of the reasons for not using such standards.

This rule does not establish any new technical standards and thus, the EPA has no need to consider the use of voluntary consensus standards in developing this final rule.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, the EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless the EPA consults with State and local officials early in the process of developing the proposed regulation.

This action does not have federalism implication. It will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it affects only one facility.

On July 8, 2003, the Commission adopted an Order (FCC 03-167) revising its rules to reflect the reorganization of the Enforcement Bureau. Commissioner Copps issued a separate statement when this action was taken. In order to promote a more efficient and effective organizational structure and to promote homeland security, the Commission created the Office of Homeland Security within the Enforcement Bureau. The Commission revised its rules to reflect the creation of the Office of Homeland Security, describe its functions and delegated authority, and make other conforming changes. Additionally, the Commission revised its rules to clarify the functions of an Emergency Relocation Board during times of emergency under the Commission's COOP and the line of succession to chair the Board.

Authority for the adoption of the foregoing revisions is contained in sections 4(i), 4(j), 5(b), 5(c), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 155(b), and 303(r).

The amendments adopted herein pertain to agency organization, procedure and practice. Consequently, the notice and comment provision of the Administrative Procedure Act contained in 5 U.S.C. 553(b) is inapplicable.

The Commission will not send a copy of this Order to the U.S. General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because it concerns rules of agency organization, procedure, or practice that do not “substantially affect the rights or obligations of non-agency parties.” This Order does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Pub. L. 104-13. Therefore it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Pub. L. 107-198, see 44 U.S.C. 3506(c)(4).

Accordingly, it is ordered that parts 0 and 11 of the Commission's Rules, set forth in Title 47 of the Code of Federal Regulations, are amended as set forth in the rule changes.

Iowa Telecommunications Services, Inc. (Iowa Telecom), in a petition for reconsideration of the Data Gathering Order, asked the Commission to adopt annual statistical sampling for certain rural telephone companies in lieu of reporting Form 477 data. The Commission denied the petition finding that Iowa Telecom has not raised materially new or persuasive arguments beyond those considered in the Data Gathering Order, nor has it alleged substantially changed circumstances to justify the requested relief. Parties wishing to revisit these arguments more generally may do so in the context of the Notice of Proposed Rulemaking in WC Docket No. 04-141.

It is further ordered that, pursuant to sections 1-5, 10, 11, 201-205, 215, 218-220, 251-271, 303(r), 332, 403, 502, and 503 of the Communications Act of 1934, as amended, 47 U.S.C. 151-155, 160, 161, 201-205, 215, 218-220, 251-271, 303(r), 332, 403, 502, and 503, section 706 of the Telecommunications Act of 1996, 47 U.S.C. 157 nt, and sections 1.106 and 1.429 of the Commission's rules, 47 CFR 1.106 and 1.429, the petition for reconsideration filed by Iowa Telecommunications Services, Inc. is denied.

It is further ordered that CC Docket No. 99-301 is terminated.

The Council prepared the FMP under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On September 26, 2003, NMFS announced the availability of the FMP and requested comments on it (68 FR 55573). NMFS published a proposed rule to implement the FMP and requested comments on the proposed rule through December 18, 2003 (68 FR 62267, November 3, 2003). NMFS partially approved the FMP on December 23, 2003; NMFS disapproved the restrictive qualifying criteria for a commercial vessel permit, commercial vessel permit transfer provisions, commercial trip limits for dolphin applicable to vessels with a commercial permit for Atlantic dolphin and wahoo, designation of sargassum as EFH, and the designation of sargassum as an EFH-HAPC. The rationale for the approved measures in the FMP is provided in the preamble to the proposed rule and is not repeated here.

NMFS received 75 letters from the public during the comment periods on the FMP and the proposed rule. The comments are summarized below along with NMFS' responses.

Comment 1: The FMP represents a much needed management strategy for the dolphin and wahoo stocks of the U.S. Atlantic Coast. This proactive strategy will maintain healthy stocks of dolphin and wahoo for all user and interest groups. Recreational fishermen have not been restricted from catching large numbers of small dolphin, and the proposed bag and size limits will curb those excessive catches. Similarly, capping the commercial effort in this predominantly recreational fishery will ensure that the historical allocation is maintained between sectors. Prohibiting the sale of fish caught under the bag limit, without appropriate state and Federal commercial permits, will reduce the incentive for recreational fishermen to catch excess quantities of fish with the sole intent of selling the catch, and will reduce the potential for health issues from the sale of improperly handled and processed fish.

Response: The actions approved by NMFS effectively manage and conserve the dolphin and wahoo resources of the U.S. Atlantic Coast. This rule does not attempt to rectify a biological problem with the stocks; neither stock is overfished or approaching an overfished condition because of overfishing. The FMP has specific objectives to maintain healthy stocks of dolphin and wahoo, while optimizing social and economic benefits to the fishery.

Comment 2: The proposed 10-dolphin and 2-wahoo bag limits along with the 20-inch (50.8-cm) size limit for dolphin off Florida and Georgia are an appropriate first step to cap the current effort and participation in the fishery, but may be too lenient. A minimum size limit of 24 inches (61 cm) fork length for dolphin and at least 40 inches (102 cm) for wahoo would be more appropriate. A bag limit of five or less dolphin per person per day would be more appropriate.

Response: Alternative bag and size limits for dolphin and wahoo were considered but rejected. The intent is to cap, but not reduce, the current participation and catch in the dolphin and wahoo fishery. More restrictive and area-inclusive bag, boat, and size limits were projected to reduce the catch and landings in the recreational fishery. For wahoo, no size limits were proposed because of human safety issues associated with the release of wahoo and the subsequent potential for increased discard mortalities.

Comment 3: Recreational fishermen are already overburdened with regulations restricting their right to catch fish. Recreational fishermen should not be subject to catch restrictions or restrictions on their ability to sell their fish caught under the bag limit. The proposed prohibition of sale of fish caught under the bag limit will impact recreational anglers who supplement their low or fixed incomes from the incidental sale of their catch.

Response: The Magnuson-Stevens Act defines recreational fishing as fishing for sport or pleasure, and commercial fishing as fishing where the harvested catch is intended to enter commerce through sale, barter, or trade. In accordance with these definitions, NMFS has approved the prohibition of the sale of dolphin and wahoo without the appropriate state and Federal commercial vessel permits. The intent of the action is to deter recreational fishermen from targeting excessive amounts of dolphin or wahoo with the primary purpose of selling the excess portion of their catch to offset fishing trip expenses. This, in turn, will reduce the potential for excessive harvest and localized depletions of the stocks.

Comment 4: The current licensing and permitting requirements in the for-hire sector are already excessive, and additional permitting requirements for for-hire vessels are unnecessary and burdensome. The sale of dolphin caught under the recreational bag limit by the for-hire fleet represents a substantial contribution to the market. Without these sales, there would be little dolphin available, and the price for these fish would increase substantially. The for-hire sector should be allowed to continue to sell fish caught under the recreational bag limits to supplement the income from chartering the vessel without the need for additional permits.

Response: The Council is addressing the sale of recreationally caught fish on a species-by-species basis. NMFS approved the Council's proposed action to prohibit the sale of wahoo caught under the recreational bag limit. However, recognizing the importance of the sale of dolphin to the for-hire industry, NMFS approved the Council's proposed action to restrict the sale of dolphin caught under the bag limit. For-hire vessels operating as a charter, and that possess appropriate state and Federal commercial permits, will be allowed to continue to sell dolphin caught under the bag limit. In combination with the reporting requirements associated with the commercial vessel permit, NMFS and the Council will have the opportunity to better monitor the catch and landings in the fishery, and thus be able to make more informed decisions regarding the management of the stocks.

Comment 5: The ability to obtain a commercial vessel permit that will allow for-hire and commercial vessels to sell their catch should not be restricted by the proposed qualifying criteria. Catches of dolphin and wahoo are incidental to the catch of many other species. Annual catches and landings of these species by individual fishermen or vessels are well below the proposed 250-pound (lb) (113-kg) criterion. Commercial and for-hire vessels should be allowed to sell their incidental catches of dolphin and wahoo without the need for a commercial permit.

Response: The intent of this action is to establish a permit system that capped, but that does not reduce, the current participation and catch in the dolphin and wahoo fishery. Additionally, the proposed qualifying criteria were intended to capture the historical participants in the fishery.

NMFS conducted a Supplemental Initial Regulatory Flexibility Analysis (SIRFA) to complement the RFA findings in the FMP. The SIRFA analysis examined current participation of vessels and their landings during the calendar years 2000 through 2002; after the control date of May 21, 1999. The SIRFA concluded that many small-time operators who currently participate in the dolphin and wahoo commercial fishery would not qualify for a permit, but several hundred vessels that have no demonstrated current or historical participation in the dolphin and wahoo fishery would qualify for the permit. On a related note, participants that do not qualify for a commercial vessel permit can only obtain a permit through transfer. The FMP states that transfers may only occur through the sale of the vessel for which the permit is issued. The FMP does not provide any rationale as to why such a restrictive method of transfer is necessary.

The proposed qualifying criteria for a commercial vessel permit does not adequately address historical and current participation in the fishery, as required by section 303(b)(6) of the Magnuson-Stevens Act. Additionally, the criteria are inconsistent with the Council's intent of capping the fishery and capturing the historical participants. Therefore, NMFS approved the requirement for a Federal vessel permit for commercial and for-hire vessels, but disapproved the proposed restrictive qualifying criteria to obtain a commercial vessel permit. With the disapproval of the qualifying criteria, these will be open-access permits with no transfer provisions. In combination with the reporting requirements associated with the commercial vessel and for-hire permit, this action will provide NMFS and the Council with the appropriate mechanism to monitor the catch and landings in the fishery, and thus be able to make more informed decisions regarding the management of the stocks.

Comment 6: Trip limits on dolphin are counter-productive to the economics of commercial harvest of these incidentally caught species. Short trips, resulting from restrictive trip limits, would increase fixed production costs to the vessel owner and fishermen. Restrictive trip limits for dolphin would lead to regulatory discards once the quantity of fish is met during a trip. Trips with high quantities of landings of dolphin occur during a brief 4- to 6-week period in the late spring and early summer in the South Atlantic region. Current commercial landings of dolphin are far less than the proposed 1.5 million-lb (680,400-kg) or 13-percent cap on the commercial fishery, thus trip limits are likely to have economic impacts on the commercial fishery.

Response: The SIRFA conducted by NMFS, which examined the trips and landings of dolphin and wahoo, concluded that the majority of trips would not exceed the proposed trip limit for dolphin. However, for trips that did exceed the proposed trip limits, dolphin accounted for 16 to 33 percent of the value of the landings.

Although the Council was justifiably concerned that the commercial sector might rapidly expand its effort and landings in the dolphin fishery, the implementation of the time and area closures for the highly migratory species (HMS) fishery in the South Atlantic region in 2001 appears to have curtailed that potential. The existing data do not show that the commercial dolphin fishery is expanding, nor is such an expansion likely to occur. Commercial landings of dolphin (from both the for-hire and commercial sectors) have declined from peak landings of 2.2 million lb (997,920 kg) in 1995 and 1.5 million lb (680,400 kg) in 1997 to less than 1.0 million lb (453,600 kg).

The intent of this action is to cap the current participation and effort in the fishery. The Council rejected alternatives for several actions because of their potential to reduce current participation and effort. By capping the commercial fishery at 1.5 million lb (680,400 kg) or 13 percent of the total landings, NMFS has determined that a trip limit on dolphin, which is projected to reduce commercial landings, is unnecessarily burdensome and restrictive on that segment of the fishery at this time. Therefore, NMFS disapproved the proposed trip limit on dolphin.

By contrast, establishing a commercial trip limit of 500 lb (227 kg) for wahoo is not expected to have a significant effect on the current catch and effort in the fishery. The FMP indicates that an Atlantic-wide 500-lb (227-kg) commercial trip limit on wahoo is anticipated to have less than a 3-percent impact on commercial landings. The SIRFA analysis supports this finding, noting that more than 99 percent of all trips land less than 500 lb (227 kg) per trip. NMFS has approved the commercial trip limit for wahoo.

Comment 7: The conclusion of non-significance under Executive Order (E.O.) 12866 in the SIRFA differs from that under the Regulatory Flexibility Act (RFA) and the determination of the FMP and should be explained further in the final rule.

Response: The criteria under which significance is determined is different under E.O. 12866 and the RFA. Therefore, the finding of significance under the RFA has no direct bearing on the determination under E.O. 12866. Although the FMP, as proposed, is projected to significantly reduce profits for a substantial number of small entities, as per the RFA analysis, it has been determined to not be significant because of the criteria in Section 3(F) of E.O. 12866.

In accordance with the partial approval of the FMP measures, the following proposed amendments have been removed from this final rule: (1) The revisions to the transfer provisions in § 622.4(g)(1); (2) the addition of § 622.4(s) regarding restrictive commercial vessel permit eligibility criteria, special application procedures, and transfer restrictions; (3) the revision to the prohibitions in § 622.7(b); and (4) the commercial trip limits in § 622.44(f)(1)(i)—that paragraph has been restructured accordingly.

As indicated in the proposed rule (68 FR 62267, November 3, 2003), this final rule establishes a delayed effective date, September 24, 2004, for the commercial vessel, charter vessel/headboat, and dealer permit requirements and a delayed effective date, November 23, 2004, for the operator permit requirement. In addition, there are a number of other regulatory provisions in this final rule that are dependent, directly or indirectly, on those permit requirements and, therefore, must share the respective, delayed effective dates.

The following table lists those regulatory provisions that have effective dates different than the standard effective date, June 28, 2004, that applies to all other provisions of this final rule.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared an FRFA, based on the Regulatory Impact Review. A summary of the FRFA follows.

The Magnuson-Stevens Act provides the statutory basis for the rule. The objectives of the final rule are to address local reduction in fish abundance, market disruption, inter-sector conflict and reduced social and economic benefits. The final rule will create permit requirements and trip, bag and size limits; specify allowable gear; place restrictions on recreational sales; establish reporting requirements; and establish a framework regulatory procedure to allow for timely implementation of certain potential future actions. The final rule will apply to all entities that operate in the dolphin and wahoo fisheries.

Approximately 1,700-3,300 vessels and/or Florida Saltwater Product Licensees (SPLs) were identified with logbook-reported or trip-ticket reported commercial landings of dolphin and wahoo on the U.S. Atlantic Coast during at least one year of the 1996-2002 period. On average, the annual gross revenue by these entities varied from $4,000 to $123,000. Of these vessels, the larger vessels participate in the Atlantic HMS longline fishery and landed approximately ten times as much dolphin and wahoo as the smaller Southeast coastal fisheries vessels and the vessels with Florida SPLs. The smaller vessels, however, were relatively more dependent on revenue from the harvest of dolphin and wahoo.

The final rule will establish four types of permits to allow continued operation in the dolphin or wahoo fishery: A dealer permit, a commercial vessel permit, a for-hire vessel (charter vessel or headboat) permit, and an operator permit for either commercial or for-hire vessels. A for-hire vessel could possess both a commercial vessel permit and a for-hire vessel permit. Qualification for a vessel permit simply requires application. The requirements for the various permits and reporting do not require professional skills, and, therefore, may be deemed not to be onerous on the affected participants.

All of the 1,700-3,300 entities with logbook-reported or trip-ticket reported commercial landings of dolphin and wahoo on the U.S. Atlantic Coast during at least one year of the 1996-2002 period may be expected to obtain a commercial vessel permit. In addition, approximately 6,800 for-hire vessels on the U.S. Atlantic Coast have no demonstrated record of sale of dolphin and wahoo. These vessels may choose to obtain a for-hire vessel permit to harvest and possess, but may choose to not obtain a commercial vessel permit to sell, dolphin and wahoo caught in the U.S. Atlantic EEZ. Among for-hire fishing vessels, average revenues for charter vessels are estimated at $26,000-$69,000, while average revenues for headboats are estimated at $123,000-$300,000.

There are two general classes of small business entities that will be directly affected by the final rule: commercial fishing vessels and for-hire (charter vessel or headboat) fishing vessels. The Small Business Administration defines a small business that engages in charter fishing as a firm that is independently owned and operated, is not dominant in its field of operation, and has annual receipts up to $6.0 million per year. The revenue benchmark for a small business that engages in commercial fishing is a firm with receipts up to $3.5 million. Based on the revenue profiles provided above, all commercial and for-hire entities operating in the dolphin and wahoo fisheries are considered small entities.

The requirements for the dealer, commercial-vessel, for-hire vessel, and operator permits are not expected to restrict qualification for these permits. Costs will be limited to the permit fee, which is not onerous and is not expected to substantially affect business profits.

The wahoo commercial trip limit is expected to reduce gross revenues by 6-8 percent for 10 vessels. This dollar loss in annual gross revenues, $500-$1,400 per vessel, translates directly into a loss in profits assuming no change in prices, trip costs and fishing effort.

The allowable gear restriction is expected to reduce fishery profits for an unknown number of vessels by $11,000 a year in total for all vessels combined. The $11,000 estimate reflects the value of dolphin and wahoo landed by gear types that will no longer be allowed under the final rule. Since available data do not allow the identification of the number of vessels this would impact, it is not possible to determine the average annual revenues of these vessels.

The prohibition on the sale of recreationally caught dolphin and wahoo, except for for-hire vessels that possess the necessary state and Federal commercial permits, is not expected to adversely impact gross revenues or profits of small entities. Available data suggest that sales by for-hire vessels are from vessels that are additionally legally permitted to operate as commercial vessels. Further, there is no evidence to indicate that angler demand for for-hire services will decline as a result of recreational sales restrictions.

The framework procedure is not expected to have any direct impacts on participants or profits since it merely establishes a structure for possible future action. Additionally, specifying the fishing year will have no impact on fishing behavior and, therefore, have no impact on business profits.

The impact of the recreational dolphin and wahoo bag limits, and recreational dolphin minimum size limits on for-hire profits cannot be determined. Although the approved bag and size limits are expected to restrict the harvest behavior of some recreational anglers, there are insufficient data to establish the impact of these measures on angler demand for for-hire services and, hence, revenues or profits.

The dolphin minimum size limit is expected to reduce ex-vessel revenues of commercial fishing operations that operate off Georgia and Florida by approximately 3 percent.

The prohibition of surface and pelagic longline gear for dolphin and wahoo during time and area closures in the South Atlantic is not expected to result in any reduction in profits for current participants. It is not expected that any vessels would attempt to operate in this manner since they would have to give up their more valuable HMS permit in order to do so. Available data indicate that such vessels cannot profitably operate exclusively harvesting dolphin and wahoo.

A number of public comments received addressed the rule's economic impact. Those comments were addressed elsewhere in this document (see comments 5, 6, and 7). No changes were made in the final rule as a result of such comments.

Following is a discussion of alternatives that were not adopted in the final rule.

Rejected alternatives regarding the permit requirement would have: (1) imposed permit-qualification criteria, or (2) not required vessel permits (no-action alternative). Under the alternative that would have required permit-qualification criteria, losses for the 387-1,998 entities that would not have been expected to meet the criteria for a commercial vessel permit are estimated at 4-32 percent of annual gross revenue on average. The dollar loss in gross revenue translates into loss in vessel profit, assuming no change in prices, trip costs, and fishing effort. Individually, these non-qualifying entities had annual gross revenues from fishing that ranged from less than $10 to $70,000 or more, and annual landings of dolphin and wahoo that ranged from less than 10 lb (4.5 kg) to 4,000 lb (1,814 kg) or more. It is estimated that 58-476 out of these 387-1,998 entities could have been driven out of business, assuming a 50 percent-loss-in-gross criterion.

Approximately 1,300 vessels would have been expected to meet the commercial vessel dolphin-wahoo permit qualification criteria. This total includes vessels that exclusively operate as commercial vessels as well as those for-hire vessels that meet the commercial vessel permit requirements. All of these 1,300 vessels have documented Atlantic Coast landings of dolphin and wahoo, and most would have qualified on the basis of already having Federal permits for commercial fishing in the EEZ for snapper-grouper, king mackerel, or swordfish, as specified in the proposed FMP. An owner would also have qualified for a commercial vessel permit if he/she derived at least 25 percent of his/her earned income, or at least $10,000, from commercial or for-hire fishing during one of the 3 calendar years 1996, 1997, or 1998, and the owner can document that he/she owned a vessel that landed and sold at least 250 lb (113 kg) of dolphin and/or wahoo harvested from the Atlantic during one of the 3 calendar years 1996, 1997, 1998, or during the period January 1, 1999, through May 21, 1999.

Among the estimated 1,300 vessels discussed above, only a few would have been expected to qualify for a commercial permit on the basis of meeting the 250-lb (113-kg) and $10,000 criteria. The number of vessels that would have qualified under the 250-lb (113-kg) and 25-percent earned income from fishing criteria cannot be determined since information on total earned income is unavailable.

As many as 900 additional vessels might have met the qualification criteria on the basis of having Federal permits for commercial fishing in the EEZ for snapper-grouper, king mackerel, or swordfish. However, these vessels do not have documented Atlantic Coast landings of dolphin or wahoo, and, therefore, there may have been no incentive to obtain a permit, although applications might have been submitted for speculative purposes. The number of vessels with snapper-grouper, king mackerel, or swordfish permits has declined over time because each of these three permits is either under a moratorium or limited access program, and no new vessels can enter the fisheries, except via transfer and purchase of existing permits.

The rejected alternatives respecting the sale of recreationally-caught fish include: (1) unregulated sale (no-action alternative), (2) a 3-5 year phase-out of sale by for-hire vessels with necessary commercial permits, and (3) no sale, whereas the approved alternative would allow sale by for-hire vessels with the necessary commercial permits. The final rule would have less economic impact on small entities than the 3-5 year phase-out and no-sale alternatives. Compared with the no-action alternative, the final rule is not expected to have a significant economic impact on for-hire vessels. Available data suggest that sales by for-hire vessels are from legally permitted commercial vessels. Further, there is no evidence to indicate that angler demand for for-hire services will decline as a result of the sales restrictions.

Rejected alternatives to not implementing a commercial trip limit for dolphin would: (1) establish a 1,000/3,000-lb (454/1,361-kg) trip limit or (2) specify a trip limit of from 1,000 to 5,000 lb (454 to 2,268 kg). Both alternatives would be expected to cause direct negative economic impacts. A 1,000/3,000-lb (454/1,361-kg) trip limit would be expected to result in an annual loss of $96,000. A 1,000-lb (454-kg) trip limit would result in an expected loss of $157,000 per year, while 3,000-lb (1,361-kg) and 5,000-lb (2,268-kg) trip limits would result in losses of $50,000 and $22,000 per year, respectively. Each alternative is, therefore, more restrictive than the final rule.

Only a status quo measure (no-action alternative) was considered as an alternative to the commercial wahoo trip limit. Since maintaining the status quo would impose no new restriction, the adverse impact of the approved measure would be avoided. However, annual landings of wahoo have been close to the estimated maximum sustainable yield and NMFS determined that the approved alternative would best meet the objectives of the FMP.

Rejected alternatives to the dolphin bag and/or boat limits would provide: (1) no bag or boat limit (no-action alternative), (2) a boat limit of 18-60 fish, (3) a daily bag limit of 5-10 fish per person, excluding captain and crew on for-hire vessels, or (4) a daily bag limit of 10 fish per person or 60 fish per boat, whichever is less (with the 60 fish boat limit not applying north of 39o N. latitude (Delaware Bay, Delaware). The final rule will establish a bag limit of 10 fish per person per day, or 60 fish per vessel, whichever is less, with the vessel limit not applying to headboats. For wahoo, the rejected alternatives would provide: (1) no bag limit (no action alternative), or (2) a bag limit of 2 fish per person per day, excluding captain and crew, whereas the approved alternative will establish a bag limit of 2 fish per person per day.

Rejected alternatives to the minimum size (fork length) limit for dolphin would provide: (1) no minimum size (no-action alternative), or (2) an 18-24 inch (46-61 cm) minimum size, whereas the approved alternative would establish a 20-inch (51-cm) minimum size for Florida and Georgia, and no minimum size limit farther north.

The impact of other alternatives to establish recreational dolphin and wahoo bag limits, and dolphin minimum size limits on for-hire profits cannot be determined. Although the approved bag and size limits are expected to restrict the harvest behavior of some recreational anglers, there are insufficient data to establish the impact of these measures on angler demand for for-hire services and, hence, revenues or profits. While the approved alternative for minimum size limits for dolphin is expected to reduce ex-vessel revenue in Georgia and Florida for commercial vessels when compared with the no-action option, the approved alternative covers just the EEZ off Georgia and Florida, whereas the rejected alternatives would apply to the entire Atlantic EEZ. The rejected alternative would cover a larger area than the approved action and, therefore, would be more restrictive. Further, although an 18- or 19-inch (46- or 48-cm) minimum size limit would be less restrictive than the approved 20-inch (51-cm) minimum size, the rejected alternative would also allow for a minimum size limit that is more restrictive than the approved action, i.e., limits greater than 20 inches (51 cm). NMFS determined that the respective approved alternatives for the bag and size limits would best meet the objectives of the FMP.

Copies of the FRFA are available upon request (see ADDRESSES ).

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number.

This final rule contains collection-of-information requirements subject to review and approval by OMB under the PRA. These requirements have been approved by OMB under OMB control numbers 0648-0487 for the permit-related requirements, 0648-0013 for the dealer reporting requirements, and 0648-0371 for the vessel reporting requirements. The estimated public reporting burdens are as follows: 20 minutes for a charter vessel/headboat permit application or commercial vessel permit application; 60 minutes for commercial vessel records including a listing of landings; 5 minutes for a request to add the commercial vessel permit or charter vessel permit to a vessel already holding other vessel permits; 5 minutes for a dealer permit application; 60 minutes for an operator permit application; 12 minutes for a vessel catch and effort report; 2 minutes per form to prepare a no-fishing report; and 15 minutes for a dealer monthly report of dolphin and wahoo receipts and prices.