RUS requires borrowers and grant recipients to meet applicable requirements mandated by Federal statutes and regulations to obtain RUS financing. One such requirement is compliance with building safety provisions of the Earthquake Hazards Reduction Act of 1977, as amended (42 U.S.C. 7701 et seq. ) as implemented pursuant to Executive Order 12699, Seismic Safety of Federal and Federally Assisted or Regulated New Building Construction (3 CFR, 1990 Comp., pg. 269).

Subpart C of 7 CFR Part 1792 codifies the policies and requirements that RUS and RTB borrowers and grant recipients must meet for new building construction when using funds provided or guaranteed by RUS or RTB, or when obtained through a lien accommodation or subordination approved by RUS or RTB.

The Executive Order requires all Federal agencies to ensure that any new building which is leased for Federal uses or purchased or constructed with Federal assistance is designed and constructed in accordance with appropriate seismic design standards. Those standards must be equivalent to or exceed the seismic safety levels in the National Earthquake Hazards Reduction Program (NEHRP) recommended provisions for the development of seismic regulations for new buildings. The Executive Order charges the Interagency Committee on Seismic Safety in Construction (ICSSC) with recommending appropriate and cost-effective seismic design, construction standards and practices.

According to a recent study commissioned by the ICSSC, the model codes and standards that are equivalent to the 1997 NEHRP Recommended Provisions are the 2000 International Building Code and the ASCE 7-98 Minimum Design Loads for Buildings and Other Structures. These codes will be added to the list of codes equivalent to the 1994 or 1997 NEHRP Recommended Provisions. In addition, clarification is added to the acknowledgment.

This is to confirm the effective date of June 14, 2004, for the direct final rule, 7 CFR 1792, Seismic Safety, published in the Federal Register on April 30, 2004.

Section 24.16 of the Customs Regulations (19 CFR 24.16) sets forth the procedure that U.S. Customs and Border Protection (CBP) must follow to furnish overtime and premium pay to customs officers, as required by the Customs Officer Pay Reform Act, 19 U.S.C. 267 (“COPRA”). The statutory language at 19 U.S.C. 267(e)(1) provides that overtime compensation and premium pay may be paid to an individual performing those functions specified by regulation by the Secretary of the Treasury for a customs inspector or canine enforcement officer. Since the enactment of the Homeland Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq. ), these regulations are now promulgated by the Secretary of Homeland Security.

The enabling regulation, specifically 19 CFR 24.16(b)(7), Customs Regulations, currently defines those eligible for COPRA coverage by specifying only four position descriptions: “Customs Inspector,” “Supervisory Customs Inspector,” “Canine Enforcement Officer,” and “Supervisory Canine Enforcement Officer.” This definition does not encompass the expanded border security and inspection functions brought into CBP by the government reorganization consistent with the Homeland Security Act of 2002. (See Homeland Security Act and the President's Reorganization Plan of November 25, 2002, as amended by the President's January 30, 2003 modification.)

When CBP was established on March 1, 2003, it brought together some 18,000 inspection personnel from different agencies and disciplines at the nation's ports of entry, with the priority mission of preventing terrorists and terrorist weapons from entering the United States. At present, three different overtime and premium pay systems are required to administer overtime compensation and premium pay for inspection personnel.

On April 7, 2004, CBP published a document in the Federal Register (69 FR 18296) proposing to amend the definition of “customs officer” for the purpose of eligibility for overtime compensation and premium pay. If this proposed regulatory change to the definition of “customs officer” in 19 CFR and a conforming change to the definition of “immigration officer” in 8 CFR is adopted, the Department of Homeland Security (DHS) would make COPRA (the current overtime and premium pay system for customs officers) the overtime and premium pay system for the other inspectors working in CBP, in effect creating a single overtime and premium pay system instead of the three different systems that are now in place. This change would eliminate the inequities and disparities in pay and scheduling under the three different systems.

A new position, Customs and Border Protection Officer (CBP Officer), was recently established to merge the expanded border and inspection functions formerly performed within three separate agencies: The former Immigration and Naturalization Service of the Department of Justice, the former United States Customs Service of the Department of the Treasury, and the Animal and Plant Health Inspection Service of the Department of Agriculture. The CBP Officer is the principal front line officer carrying out the priority mission and the traditional customs, immigration and some agriculture inspection functions which are now the responsibility of CBP. The establishment of the new position enables the agency to perform its mission more efficiently and to provide better protection and service to the public at the ports of entry. In addition, CBP established the CBP Agriculture Specialist position with responsibilities for agriculture inspection of passengers and cargo as well as analysis of agriculture imports. In order to assure that these officers meet their responsibilities to the public, they are required to be available for overtime as a condition of employment.

To enable CBP to furnish overtime compensation and premium pay for these new positions, it proposed to include “Customs and Border Protection Officer” and related positions within the definition of “customs officer” in 19 CFR 24.16(b)(7). It is noted that the continued usage of the term “customs officer” does not reflect any reorganization within DHS. Rather, it occurs because it reflects the pertinent statutory authority, 19 U.S.C. 267, regarding overtime compensation and premium pay. Including the “Customs and Border Protection Officer” within the definition of “customs officer” in 19 CFR 24.16(b)(7) does not affect the authority of a “Customs and Border Protection Officer” to engage in customs, immigration, and agriculture inspection functions. Instead, it is a key step to implementing the “one face at the border” initiative by harmonizing the pay systems for the personnel who perform those functions.

Furthermore, CBP proposed to include a technical change in 8 CFR 103.1 to authorize a customs officer, as defined in 19 CFR 24.16(b)(7), to perform immigration inspection functions, without a separate designation. Currently, customs officers perform such immigration functions pursuant to a designation as an immigration officer.

Finally, it is important to note that CBP's proposed rule was tangentially related but separate and distinct from the proposed rule published on February 20, 2004 in the Federal Register by DHS and the Office of Personnel Management regarding the establishment of a new human capital system for DHS. The two proposed rules addressed different human resources issues. The proposed rule regarding COPRA expands the eligibility of certain employees to receive overtime compensation and premium pay under 19 U.S.C. 267; however, it has no impact on setting any employee's basic rate of pay. The human capital rule, on the other hand, proposes to create a new system for setting basic pay within DHS.

CBP solicited written comments on its proposal regarding overtime compensation and premium pay. It received a total of 8 comments in response to the April 7, 2004 notice of proposed rulemaking. What follows is a review of and CBP's response to the issues and questions that were presented by the comments concerning the proposed regulations.

Five of eight respondents were specifically in favor of the consolidation and offered suggestions and clarifications on the proposal. The remaining three comments, though not negative, offered suggestions for further improvements to the implementation of this change. None of the commenters were opposed to the conversion into COPRA; however, they raised questions regarding the implementation of the conversion. To facilitate the conversion, CBP plans to post further guidance on its internet page (http://www.cbp.gov) upon publication of this final rule.

Comment: Several commenters suggested that Agriculture Technicians should also be covered by COPRA based on the nature of the work that they perform.

CBP Response: The “one face at the border” concept addressed the work and pay of the legacy Customs Inspector, the Immigration Inspector and the Agriculture Inspector occupations. Similar to the inspectional occupations, there are three legacy technician occupations. A review of the work performed by these employees is planned. After the review is complete, a determination will be made as to whether overtime changes are necessary. In the interim, Agriculture Technicians will continue to receive overtime compensation as they have in the past.

Comment: Some CBP Agriculture Specialists (formerly Agriculture Inspectors) commented that, while they were generally in favor of being included under COPRA, they did not appreciate that commuting time would be limited to one hour (paid at three times the hourly rate). They felt that, due to the specialized nature of their work, they would be required to incur longer commutes than CBP Officers.

CBP Response: The rules for commuting time compensation under COPRA are set forth in 19 CFR 24.16(e)(3). COPRA provides an employee three hours of base pay for an overtime assignment involving a commute regardless of the length of time needed for the commute. CBP believes that this provision is fair and administratively efficient. Furthermore, the majority of commuting instances for CBP Officers and CBP Agriculture Specialists fall within the three-hour timeframe.

Comment: A commenter inquired as to the effective date for the COPRA conversion.

CBP Response: The effective date of the regulation will be 30 days after publication of this final rule in the Federal Register . Employees will be covered thereafter at the earliest date practicable dependent on administrative contingencies. In the interest of fairness and equity, the change will be implemented for all CBP Officers and CBP Agriculture Specialists at the same time. This implementation is an important step for the agency to move forward in unifying the workforce.

Comment: One commenter was concerned that the COPRA overtime cap would be applied, in mid-year, to the affected employees. Further, concern was expressed about the $25,000 limit on overtime earnings under COPRA which is lower than the $30,000 cap that currently applies to CBP employees.

CBP Response: For those converting to COPRA during the current fiscal year, the COPRA overtime cap will only be applicable for the remainder of the fiscal year. Overtime earned by CBP Agriculture Specialists and Immigration Inspectors prior to conversion to COPRA is limited to the CBP $30,000 cap. The $25,000 cap under COPRA is an annual cap but it will only apply to earnings during the period between conversion to COPRA and the end of the fiscal year (approximately three months). Therefore, it is not expected that individual overtime earnings will be impacted.

The $25,000 limit on overtime and premiums under COPRA is established by statute. In prior years, specific appropriations language increased this limit to $30,000. Action is underway to reestablish the COPRA limit at $30,000.

Comment: Two commenters asked about the effect of the annuity provisions of COPRA and whether these provisions could be applied retroactively to past overtime earnings under a different pay system.

CBP Response: As originally noted in the Notice of Proposed Rulemaking, COPRA provides up to one half of the statutory cap in calculating retirement pay. However, this provision is applicable only to COPRA earnings. Earnings under other overtime systems would be creditable toward an annuity only if those systems also included such a provision. Consequently, employees moving to COPRA will be unable to “grandfather” in previous overtime earnings toward retirement if their former system did not provide for such credit.

Comment: Two comments expressed concern about Senior Immigration Inspectors (SRI) receiving only COPRA pay in lieu of Administratively Uncontrollable Overtime (AUO). One of these comments spoke specifically to the perceived similarities between the Border Patrol Agent and SRI positions, both of whom currently earn AUO.

CBP Response: After a review of the requirements of the SRI position, it was determined that the nature of the work falls within the duties defined for the CBP Officer occupation. (It should be noted that although Border Patrol Agents and SRIs currently receive AUO, the two occupations have different functions and operate in different environments. SRIs work at ports of entry and handle inspections as well as specialized enforcement functions. Border Patrol Agents operate between the ports and focus on interdicting, tracking, deterring, and apprehending illegal immigrants.) The work performed by SRIs will continue in CBP Officers whose position description includes specialized law enforcement responsibilities as well as inspection duties. Just as the CBP Officer occupation will also include officers who specialize in training (CBP Officer, Training), or handling canines (CBP Officer, K-9), the specialized functions currently performed by the SRIs will be performed by a CBP Officer with the requisite specialized skills. Due to the exclusive nature of COPRA (employees covered by COPRA are not eligible for other forms of overtime) and the amount of inspectional work required within the duties of this position, all work beyond the normal work day will be paid through the provisions of COPRA. It should be noted that of the entire inspectional workforce in CBP (over 18,000), approximately 250 are SRIs. Only about half of these SRIs earn AUO, with the others earning other forms of inspectional overtime.

In view of the foregoing, following careful consideration of the comments received and upon further review of the matter, CBP has concluded that the proposed regulations should be adopted as a final rule.

This rule is considered by DHS to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget (OMB) for review. DHS assessed the impacts of this rulemaking and its alternatives, as presented in the April 7, 2004 notice of proposed rulemaking. CBP did not receive contradictory information pertaining to the preliminary regulatory impact analysis published with the proposed rule. Accordingly, CBP is restating those findings in final form below.

At present, three user fees, supplemented by appropriations, fund the three different overtime pay systems that, in turn, govern the three traditional inspection disciplines. CBP will assure that there will be no impact on fees or service levels. CBP will track and account by activity how the fees are spent to ensure the proper transfer of immigration and agriculture funds to reimburse the Customs User Fee Account to cover costs incurred for immigration and agriculture overtime services. CBP plans to use the Cost Management Information System (CMIS) to track expenses by activity. CMIS is an activity-based cost accounting system that has been audited and endorsed by the General Accounting Office. Employees use established activity codes to track their time through the Customs Time and Attendance System. Fee payers that are currently providing the traditional user fee funding for customs, immigration and agriculture inspection services will continue to pay and benefit as they have in the past.

As noted, when CBP was established on March 1, 2003, it brought together inspection personnel from three different agencies (Agriculture, Immigration and Naturalization Service, and Customs). Inspectors in each of these workforces earn overtime and premium pay based on three different statutes. In order to establish “one face at the border,” CBP is creating a new frontline officer corps to unify and integrate the inspectional work of these three legacy agencies. The unified occupations require a single compensation system. Today, while the officers are still classified in the three legacy occupations, they are paid under three sets of overtime rules, which has resulted in disparate earnings for virtually the same work. In addition, the three separate occupations and overtime rules have created significant administrative inefficiencies, as well as work assignment and payroll problems. The impact of this rule on the inspectional workforce is that officers who perform the same functions at the ports of entry will be paid overtime and premium pay under the same computational rules.

This rule does not address the number of overtime hours the officers will be required to work, which varies by individual, by port, and by other factors such as workload fluctuations, staffing levels at a particular location, and changes to the national threat alert level. Instead, this rule adds currently classified immigration and agriculture officers (approximately 8,000 inspectors) to the COPRA system, and thus affects their rates of overtime and premium pay for actual hours worked. (Over 10,000 inspectors, all former Customs Service, are already covered by COPRA.)

The impact of this rule will be that, for some work schedules, certain employees will earn more, while for other work schedules, they will earn less. For example, current agriculture inspectors who work overtime on a weekday will earn “double time” under COPRA instead of “time-and-a-half” under their current system. On the other hand, these same inspectors may earn less under COPRA than under their current system for work on a Sunday. The chart below provides additional examples of how the three overtime systems differ when comparing hours worked. On the whole, the impact of this rule on the overall earnings for the same or similar number of hours worked is expected to be minimal. While some features of COPRA are less generous than those of other systems, there are compensating features that are more generous. Thus, the differences between COPRA and the other systems balance out in terms of earnings for hours worked. However, it is noted that this rule affects only one aspect of overtime and premium pay earnings of employees. Other factors, such as the total number of hours worked and when the overtime is worked, impact the aggregate earnings of officers on an annual basis. The explanation provided herein, both in text and in the accompanying Table, represent a good faith effort to explain the potential impact of this rule on the employees. However, due to the complexities of the different systems and the differing work schedules of individual inspectors, the exact impact of the proposed rule on a specific employee is speculative and incapable of exact computation. The difficulty of comparing these systems was highlighted in the November 2001 GAO Report titled Customs and INS—Comparison of Officer's Pay (GAO-02-21). The GAO Report compared two of these systems and concluded that “straightforward and generalizable comparisons in relation to these pay provisions are infeasible.”

CBP does not anticipate that the amendment will have an impact on private entities because the changes pertain to the agency's internal operating procedures and because overtime compensation will be funded with existing user fees the expenditure of which will be subject to normal accounting within the government. However, DHS has determined this action is a “significant” regulatory action within the meaning of Executive Order 12866 because it may be perceived to relate to the revisions of the Federal employment system DHS is presently considering under the Homeland Security Act. This rule is separate from those revisions, which do not address overtime compensation.

There are a number of similarities and differences between COPRA and the overtime systems under which legacy immigration and agriculture inspectors have been covered.

The following chart compares the major provisions of the three systems. The chart contains a high-level overview of the practices established by legacy agencies in their implementation of their overtime systems. It is not intended to contain all the details relevant to determining the rate of pay in specific situations.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Saab Model SAAB SF340A and SAAB 340B series airplanes was published in the Federal Register on April 1, 2004 (69 FR 17077). That action proposed to require inspection of the main landing gear's (MLG) separation bolt harness, corrective actions if necessary, and replacement of the MLG's separation bolt harness. For certain airplanes, that action also proposed to require modification of the MLG separation bolt's electrical harness.

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

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

The FAA estimates that 224 airplanes of U.S. registry will be affected by this AD. The following table shows the estimated cost impact for airplanes affected by this AD. The average labor rate is $65 per work hour.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 747-100, -200B, and -200F series airplanes was published in the Federal Register on July 2, 2003 (68 FR 39483). That action proposed to require initial and repetitive inspections to find discrepancies in the upper and lower skins of the fuselage lap joints, and repair if necessary.

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

One commenter states that the proposed rule, as it applies to Model 747 series airplanes, is unnecessary, will not improve safety, and imposes an undue burden on airplane operators. The commenter suggests that there is a tenuous connection between the 737 incident and the 747 fleet. The commenter further states that Model 747 series airplanes have a stronger design than Model 737 series airplanes; that Model 747 series airplanes have existing modifications and modification requirements; and that Model 747 series airplanes are better maintained by U.S. operators. In addition, this commenter recently completed “full modification” of eighteen upper lobe lap joints on an affected Model 747 series airplane and found no evidence of scratches.

The FAA infers from these comments that the commenter is requesting that the proposed rule be withdrawn. We do not agree. To date, no reports of cracks and scratches in the subject area have been found on Model 747 series airplanes. In consideration of this fact, we specified a longer compliance time in this AD for Model 747 series airplanes than the compliance time for Model 737 series airplanes specified in AD 2000-17-04, amendment 39-11878 (65 FR 51750, August 25, 2002). We chose repetitive intervals of 72 months for the required low frequency eddy current (LFEC) inspections in order to minimize the effect on the operators while still providing an adequate level of safety. In addition, we determined that the possibility of scratches that initiate during manufacture exists for any cold-bonded adhesive skin panel, and that there have been numerous reports of corrosion on cold bonded skin panels in Boeing Model 747 series airplanes. Corrosion has also been reported on Boeing Model 747 series airplanes on which full modification has previously been accomplished per AD 90-06-06, amendment 39-6490 (55 FR 8374, March 7, 1990); and AD 94-12-09 amendment 39-8937 (59 FR 30285, June 13, 1994). For these reasons, it is both warranted and necessary to issue this AD.

The same commenter requests that the LFEC inspections for corrosion at the upper fastener rows should not be required at locations that have had “full modifications” accomplished per Boeing Alert Service Bulletin 747-53A2267, dated March 28, 1986 (required by AD 94-17-01, amendment 39-8996 (59 FR 41653, August 15, 1994)), or Boeing Service Bulletin 747-53-2307, Revision 1, dated August 27, 1992 (required by AD 94-12-09). The commenter states that the “full modifications” are sufficient to detect and remove damage, and that the post-modification inspections required by AD 94-12-09 and the SSID AD (AD 94-15-18, amendment 39-8989, 59 FR 41233, August 11, 1994)) provide an equivalent level of safety in detecting subsequent damage.

We do not agree that the external LFEC inspections should not be required for operators that have accomplished the modifications required by Boeing Alert Service Bulletin 747-53A2267 or Boeing Service Bulletin 747-53-2307. We have received reports from the manufacturer of corrosion on airplanes on which the full modification had been accomplished. While the re-sealing process included in the full modification does provide some level of improvement in surface protection, it does not provide enough of an improvement to prevent corrosion.

We also do not agree that the post-modification inspections required by AD 94-12-09 and the SSID AD (AD 94-15-18) provide an equivalent level of safety. The post-modification external high frequency eddy current (HFEC) inspections required by AD 94-12-09 and AD 94-17-01 address cracks only in the upper row on the surface of the upper skin. The external LFEC inspections required by this AD address corrosion beneath the surface, at the interface between the upper and lower skins. We have not changed the final rule regarding these issues.

The same commenter suggests that the proposed AD include specific instructions for conducting inspections where existing repairs may interfere with or obstruct the required inspections. The commenter also suggests that these potential obstructions will result in an exorbitant number of requests for AMOCs, and that the industry and the FAA are ill equipped to handle the number of requests. Further, the manufacturer has informed the commenter that a revision to Boeing Alert Service Bulletin 747-53A2463 (which is referenced in this AD as the appropriate source of service information for the required actions) is being prepared to include instructions to account for existing repairs.

While we agree that it would be preferable to cite specific instructions for inspections at repaired areas, we cannot include such instructions until we receive the revised service bulletin from the manufacturer. At that time, we will review the revised service bulletin and, upon our approval of the new requirements, we will consider further rulemaking. We have not changed the final rule regarding this issue.

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

We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

There are approximately 86 airplanes of the affected design in the worldwide fleet. The FAA estimates that 55 airplanes of U.S. registry will be affected by this proposed AD, that it will take approximately 5,334 work hours per airplane to accomplish the inspections, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of this AD on U.S. operators is estimated to be $19,069,050, or $346,710 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

On February 25, 2004, we issued AD 2004-05-12, amendment 39-13507 (69 FR 11293, March 10, 2004). That AD applies to all Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. That AD requires repetitive inspections of the left and right engine throttle control gearboxes for wear, and corrective action if necessary. That AD was prompted by numerous failures of the engine throttle control gearbox, some of which resulted in an in-flight engine shutdown. The actions specified in that AD are intended to prevent excessive wear of the gearboxes and subsequent movement or jamming of the engine throttle; movement of the throttle towards the idle position brings it close to the fuel shut-off position, which could result in an in-flight engine shutdown.

Since we issued that AD, Bombardier has issued Service Bulletin 601R-76-019, Revision ‘A,’ dated February 19, 2004. (AD 2004-05-12 refers to the original issue of that service bulletin, dated August 21, 2003, as the appropriate source of service information to use when you do the required actions.) The procedures in Revision ‘A’ of the service bulletin are similar to those in the original issue. Therefore, we have revised paragraphs (a), (b), and (c) of this AD to allow you to use Revision ‘A’ of the service bulletin when you do the required actions. We have determined that accomplishment of the actions specified in the service information will adequately address the unsafe condition.

We provided the public the opportunity to submit comments in response to AD 2004-05-12. We have considered the comments that were submitted.

One commenter states that the difference in applicability between AD 2004-05-12 and Canadian airworthiness directive CF-2004-01, dated January 21, 2004, which is the Canadian airworthiness directive that parallels AD 2004-05-12, is unnecessary and could confuse operators. (This difference is noted in the “Differences Among Canadian Airworthiness Directive, Bombardier Service Bulletin, and This AD” section of AD 2004-05-12.) The commenter would like the applicability of our AD to include only serial numbers 7003 through 7067 inclusive, and 7069 through 7999 inclusive. The commenter explains that one of the airplanes included in the applicability of the U.S. AD but not the Canadian airworthiness directive has been destroyed and another is a prototype used for testing, is not eligible for a standard Certificate of Airworthiness, and can't be sold to a commercial operator.

We agree that making the applicability statement of our AD the same as that of the Canadian airworthiness directive will eliminate confusion and will not omit any affected airplanes. We have limited the applicability of this AD to airplanes having serial numbers 7003 through 7067 inclusive, and 7069 through 7999 inclusive.

Several commenters request that we revise or eliminate the calendar time portion of the compliance time in paragraph (a) of AD 2004-05-12 (which was specified as “Within 1,000 flight hours or 90 days after the effective date of this AD, whichever is first”). The commenters assert that this compliance time will not significantly improve safety and, for airplanes with a low use rate, may force operators to do the required actions much earlier than the actions need to be done to ensure safety. One commenter states that many operators use their airplanes at a rate of only about 50 flight hours per week, and the 90-day compliance time would force operators to modify components that still have adequate wear margin. Two commenters note that tying the compliance time to calendar time is not appropriate because gearbox wear is not time dependent, only flight-cycle dependent. One commenter also points out that the 90-day compliance time may not allow operators sufficient time to plan for corrective actions and to procure parts, so airplanes could be grounded due to lack of parts.

We agree. After further review of the use rates of the affected airplanes, we find that an acceptable compliance time is the later of 1,000 flight hours or 90 days after the effective date of the AD. We determine that extending the compliance time in this way will ensure that worn gearboxes are removed from the airplane before the wear extends beyond specified limits, and won't adversely affect safety. We revised paragraph (a) of this AD accordingly.

One commenter requests that AD 2004-05-12 include the part numbers of the current gearbox, as listed in the referenced Bombardier service bulletin. The commenter notes that this would prevent the inspection requirements of the AD from being incorrectly applied to gearboxes of a new design certificated in the future.

We agree. If we specify the subject part numbers in this AD, you will not have to inspect new gearbox designs (with new part numbers) certificated in the future, and we will not have to revise this AD or approve an Alternative Method of Compliance for this AD. We added the subject part numbers to paragraph (a) of this AD.

One commenter requests that we revise the reporting requirement specified in paragraph (c) of AD 2004-05-12 to clarify what information should be reported to the manufacturer. The commenter notes that paragraph (c) specifies to send a report of gearbox wear to the manufacturer, but also refers to specific paragraphs in the Accomplishment Instructions of the service bulletin that instruct operators to report incorrect bolt and screw torque values to the manufacturer. The commenter states that it isn't clear what data the AD requires to be sent to the manufacturer.

We agree to clarify the reporting requirement. Our intent is for you to report data on gearbox wear, not necessarily the incorrect torque values mentioned in the service bulletin. The reference to the service bulletin was intended to indicate only the fax number to which you should send the report. For clarification, we revised paragraph (c) of this AD to remove the references to the service bulletin, and to specify what information you must report and where you must send the report. We have also revised paragraph (c) of this AD to add certain boilerplate regulatory language that was omitted from AD 2004-05-12.

One commenter requests that we provide credit for inspections already done on affected airplanes. The commenter states that it inspected several of its airplanes before we issued the AD. The commenter states that not giving credit for previous inspections would require it to inspect the airplane again, possibly at a much shorter interval than the 1,000-flight-hour repeat interval required by the existing AD.

We find that no change to the AD is necessary to meet the intent of the commenter's request. We always give credit for work done previously, by means of the phrase in the compliance section of the AD that states, “Required * * * unless accomplished previously.” If you've already done the initial inspection, you must do the next inspection within the repetitive interval required by the AD. We have not changed the final rule regarding this issue.

Two commenters note that a certain term used in the statement of the unsafe condition throughout AD 2004-05-12 is incorrect. Where the unsafe condition refers to “fuel shut-off switch,” the correct term is “fuel shut-off position.” This is the term used in the referenced service information and the airplane maintenance manuals. We agree with the commenters and have corrected the term in this AD.

One commenter requests that we revise Note 1 of AD 2004-05-12 to refer to Trans Digm, Inc., AeroControlex Group, Service Bulletin 2100140-007-76-04, dated July 22, 2003. (Note 2 of AD 2004-05-12 refers to that service bulletin as an additional source of service information.) The commenter is concerned that Note 1 does not adequately define the necessary inspection. The commenter states that the inspection procedures in the Trans Digm, Inc., AeroControlex Group, service bulletin are more thorough.

We do not agree that any change is necessary. Paragraph (a) of AD 2004-05-12 specifies “doing all the actions per Part A, paragraphs A., B., and C.(1) through C.(4), of the Accomplishment Instructions of Bombardier Service Bulletin 601R-76-019 * * *.” The inspection definition in Note 1 of the AD is a standard inspection definition that we use in all AD actions that specify a detailed inspection. Note 1 does not relieve the requirement, specified in paragraph (a) of this AD, to accomplish the inspection per the Accomplishment Instructions of the service bulletin. We made no change related to this comment.

One commenter requests that we revise paragraph (b) of AD 2004-05-12 to delete paragraphs (b)(1), (b)(2), and (b)(3). The commenter is concerned that repeating the verbiage of the service bulletin may confuse operators. The commenter notes that the procedures are fully described in the service bulletin, so there is no need to repeat the procedure in our AD.

We do not agree. We acknowledge that paragraph (b) could have been written at a higher level with less detail. However, the information specified in those paragraphs is technically accurate, and paragraph (b) requires that the applicable actions in paragraphs (b)(1), (b)(2), and (b)(3) must be done per the Accomplishment Instructions of the referenced service bulletin. We have made no change related to this comment.

These airplane models are manufactured in Canada 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. Pursuant to this bilateral airworthiness agreement, Transport Canada Civil Aviation (TCCA), which is Canada's airworthiness authority, has kept us informed of the situation described above. We have examined TCCA's findings, evaluated all pertinent information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Therefore, this AD is being issued to revise AD 2004-05-12. We are revising that AD to continue to require repetitive inspections of the left and right engine throttle control gearboxes for wear, and corrective action if necessary. This AD limits the applicability of the existing AD, extends the compliance time for the initial inspection, and clarifies the reporting requirement. This AD requires you to use the Bombardier service information described previously to perform these actions, except as discussed under “Difference Between the AD and Service Information.” This AD also requires that operators report the inspection results to Bombardier.

Although the Bombardier service information recommends returning discrepant gearboxes to the parts manufacturer, this AD does not contain that requirement.

We consider this AD to be interim action. The reports that you are required to submit will enable the manufacturer to obtain better insight into the nature, cause, and extent of the wear of the engine throttle control gearbox, and eventually to develop final action to address the unsafe condition. Once final action has been identified, we may consider further rulemaking.

An unsafe condition exists that requires the immediate adoption of this AD; therefore, providing notice and opportunity for public comment before the AD is issued is impracticable, and good cause exists to make this AD effective in less than 30 days.

This AD is a final rule that involves requirements that affect 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 “Docket No. FAA-2004-18231; Directorate Identifier 2004-NM-94-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light of those 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 in 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.). 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 .

We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications with you. You can get more information about plain language at http://www/faa.gov/language and http://www.plainlanguage.gov .

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.

For the reasons discussed above, I certify that the regulation:

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 regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Short Brothers Model SD3-SHERPA series airplanes was published in the Federal Register on April 15, 2004 (69 FR 19956). That action proposed to require a repetitive detailed inspection of the stub wing shear decks for corrosion and abnormal wear on and around the retaining pin in the main landing gear (MLG) forward pintle pin; and corrective action, if necessary. That action also proposed an optional terminating action.

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

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

The FAA estimates that 16 airplanes of U.S. registry will be affected by this AD, that it will take approximately 13 work hours per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $13,520, or $845 per airplane, per inspection.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

If an operator chooses to accomplish the optional terminating action rather than continue the repetitive detailed inspections, it will take about 12 work hours per stub wing (2 stub wings per airplane) to accomplish the replacement of the retaining pin and circlip with a new retaining pin with castellated nut and cotter pin, at an average labor rate of $65 per work hour. Required parts will cost about $2,400 per stub wing. Based on these figures, we estimate the cost of this optional terminating action to be $6,360 per airplane.

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

The Brightman Street Bridge has a vertical clearance in the closed position of 27 feet at mean high water and 31 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.619(b).

The Town of Somerset, Massachusetts, and the Massachusetts State Police asked the Coast Guard and the bridge owner Massachusetts Highway Department for assistance with vehicular traffic delays resulting form unregulated bridge openings at the Brightman Street Bridge.

The Coast Guard in response to the above request is temporarily changing the drawbridge operation regulations for 90-days to test an alternate drawbridge operation schedule.

Under this temporary 90-day deviation the bridge need not open for pleasure craft traffic from 7 a.m. to 9:30 a.m. and from 4 p.m. to 6:30 p.m., Monday through Friday, July 1, 2004 through September 28, 2004. Commercial vessel traffic shall be passed on signal at all times.

This action is expected to provide relief to the vehicular traffic delays while still meeting the reasonable needs of navigation.

This deviation from the operating regulations is authorized under 33 CFR 117.43.

On May 4, 2004, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations; Hutchinson River, New York, in the Federal Register (69 FR 24548). We received no comments in response to the notice of proposed rulemaking. No public hearing was requested and none was held.

The Pelham Parkway Bridge has a vertical clearance of 13 feet at mean high water and 20 feet at mean low water in the closed position. The existing operating regulations listed at 33 CFR § 117.793(a), requires the draw to open on signal at all times.

The owner of the bridge, New York City Department of Transportation, requested a thirty-minute advance notice for bridge openings at the Pelham Parkway Bridge between 6 a.m. and 7 p.m. from July 1, 2004 through May 1, 2005, to facilitate bridge painting operations at the bridge.

This temporary final rule is necessary to facilitate the safe removal of construction personnel and equipment from the bridge after a request to open the bridge is received.

The Coast Guard received no comments in response to the notice of proposed rulemaking. We have changed the effective date for this final rule from July 1, 2004, to July 25, 2004. This action was necessary to allow this rulemaking to become effective in not less than 30 days after publication in the Federal Register . The notice of proposed rulemaking was delayed and not published until May 4, 2004, necessitating this change in effective date.

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).

This conclusion is based on the fact that the bridge will continue to open on signal for vessel traffic provided the thirty-minute notice is given.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 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 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 conclusion is based on the fact that the bridge will continue to open on signal for vessel traffic provided the thirty-minute notice is given.

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 1-888-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 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 concern an environmental risk to health or risk to safety that may disproportionately affect children.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have 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 final rule under Commandant Instruction M16475.1D, 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 (32)(e), of the Instruction, from further environmental documentation. It has been determined that this final rule does not significantly impact the environment.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Delaying this regulation to allow for public notice and comment would be contrary to public interest. It is in the public interest to appropriately regulate the movement of vessels on the Upper Potomac River in order to improve security for this significant event.

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 . This temporary zone is of short duration and is necessary to provide for the security in a designated area. To delay the effective date would be contrary to the public interest. In addition, advance notice will be made via marine information broadcast and local media.

On July 4, 2004, an anticipated 400,000 visitors will attend the annual July 4th celebration on the National Mall in Washington, D.C. This security zone is necessary to manage the large number of vessels on the waterway and will allow for control of the designated area and safeguard spectators and participants.

This rule designates a portion of the Potomac River from the Long Railroad Bridge (the most eastern bridge of the 5-span, Fourteenth Street Bridge complex) to the Theodore Roosevelt Memorial Bridge and all water in between as a security zone. Vessels may be allowed to enter this area, but may only do so with the permission of the Captain of the Port or his designated representatives. The Captain of the Port will make additional notifications via maritime advisories.

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 rule creates a security zone, the effects of this rule will not be significant due to the limited duration of the regulation, the limited size of the designated area, and the extensive notifications that will be made to the maritime community via marine information broadcasts and local media. In addition, at the direction of the Captain of the Port or his designated representatives, mariners will be allowed to transit the designated area.

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 transit or anchor in the Georgetown Channel, Potomac River from 12:01 a.m. to 11:59 p.m. on July 4, 2004.

This security zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for less than twenty-four hours. Although the security zone will apply to the entire width of the river, traffic will be allowed to pass through the zone at the direction of the Coast Guard Captain of the Port or his designated representatives. Additionally, the Coast Guard will make notifications via marine advisories so that mariners can adjust their plans accordingly.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer 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 entities desiring assistance with understanding this rulemaking can receive assistance by contacting the Coast Guard using the information under ADDRESSES.

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 because this rulemaking is a security zone less than one week in duration. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES.

Regulatory Information

On February 10, 2004, we published a notice of proposed rulemaking (NPRM) entitled Safety Zone Regulations; Seafair Blue Angels Air Show Performance, Lake Washington, WA in the Federal Register (69 FR 6219). No comments were received by the Coast Guard regarding this proposed rule. A public hearing was not requested and none was held.

The Coast Guard has, in the past, issued temporary final rules establishing safety zones for the Blue Angels Seafair Air Show Performance ( see, e.g. , 68 FR 44888, July 31, 2003, [CGD13-03-023], 33 CFR 165T.13-014). The Blue Angels air show has become a permanent part of the Seafair events and takes place during the Seafair unlimited hydroplane races. The air show poses several dangers to the public including excessive noise and objects falling from any accidents by low flying aircraft. Permanent regulations already exist which restrict general navigation during the Seafair unlimited hydroplane races (33 CFR 100.1301). This Final rule complements the existing regulations contained in 33 CFR 100.1301, which are intended to ensure public safety during Seafair.

No comments were received by the Coast Guard as a result of the request for comments in our NPRM.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

This expectation is based on the fact that the regulated area established by the regulation would encompass an area near the middle of Lake Washington, not frequented by commercial navigation. The safety zone is also of limited time and duration. The regulation is established for the benefit and safety of the recreational boating public, and any negative recreational boating impact is offset by the benefits of allowing the Blue Angels to fly. For the above reasons, the Coast Guard does not anticipate any significant 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 may be small entities: The owners or operators of vessels intending to transit this portion of Lake Washington during the time this regulation is in effect. The zone will not have a significant economic impact due to its short duration and small area. The only vessels likely to be impacted will be recreational boaters and small passenger vessel operators. The event is held for the benefit and entertainment of those above categories. Because the impacts of this rule are expected to be so minimal, the Coast Guard certifies under 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) that this final rule will not have a significant economic impact on a substantial number of small entities.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 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 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 would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We 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. The environmental analysis and Categorical Exclusion Determination are available in the docket for inspection and copying where indicated under ADDRESSES . All standard environmental measures remain in effect.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Good cause exists for not publishing an NPRM and for making this regulation effective less than 30 days after Federal Register publication. Any delay encountered in this regulation's effective date would be impracticable and contrary to public interest since immediate action is needed to restrict and control maritime traffic while transiting in the waters of the Norwalk River under the Metro North Railroad Bridge, Norwalk, Connecticut. On April 11, 2004, the fendering under the western span of the bridge was completely destroyed by an allision with two barges carrying stone. A temporary safety zone was implemented (CGD1-04-050) effective from 11 a.m. on April 11, 2004 to 11:59 p.m. April 16, 2004, and was then extended from April 17, 2004 to June 15, 2004, (69 FR 23655) to prevent traffic from transiting under the bridge, exposing the bridge piers under the western span of the bridge to the possibility of direct allision. At that time, the damaged fendering system extended into the navigable channel and presented a hazard to navigation. Due to the extensive damage on the bridge and the need for work to be approved by various State and Federal agencies prior to commencing, as well as the extensive repairs needed, the repairs to the bridge are running longer than originally anticipated. On June 8, 2004, CONNDOT has requested extension of the safety zone in order to complete repairs. Currently, the bridge piers in the western channel remain exposed with no fendering system. Steel pilings that are the support structure for the new fendering system have been installed, and are exposed in the waterway, presenting an additional hazard to navigation if vessels were permitted to pass in the Channel. The delay inherent in the NPRM process is contrary to the public interest and impracticable as immediate action is needed to prevent further allision with the bridge and prevent collision with the exposed steel pilings in the west channel.

On Sunday April 11, 2004 at approximately 2:40 a.m., two barges filled with stone being pushed by a barge hit the pilings of the fendering system on the western span of the Metro North Railroad Bridge over the Norwalk River, Norwalk, Connecticut. The allision by these barges completely destroyed the fendering system under the western span of the bridge. While the bridge has been determined to be safe for rail traffic, the lack of a fendering system, that is designed to protect bridge piers from direction allision, leaves the bridge piers exposed to the possibility of direct damage. Further damage to the bridge pier could impede rail traffic and the safety of the bridge and public utilizing the rail service. In addition, steel pilings constituting part of the new fendering have been installed in the west channel, and are exposed in the waterway. These piling present a hazard to hazard to navigation for any vessels utilizing the waterway. The Coast Guard is establishing a safety zone in all waters of the Norwalk River in Norwalk, Connecticut within 100-yards of the Metro North Railroad Bridge. This safety zone is necessary to protect the safety of the bridge, bridge operations and public using the Metro North Railroad from further allision directly with the bridge piers. It is also necessary to prevent vessels from colliding with exposed steel pilings which are part of the fendering system being constructed.

This regulation establishes a temporary safety zone on the waters of the Norwalk River within 100-yards of the Metro North Railroad Bridge, Norwalk Connecticut. This action is intended to prohibit vessel traffic in a portion of Norwalk River to prevent further damage to the Metro North Railroad Bridge, which may be caused due to lack of a fendering system around bridge piers around the western span of the bridge. The safety zone is in effect from 12 a.m. on June 16, 2004 until 11:50 p.m. on August 1, 2004. Marine traffic may transit safely outside of the safety zone during the effective dates of the safety zone, allowing navigation of the rest of the Norwalk River except for the portion delineated by this rule. In addition, recreational vessels may pass on the east side of the channel, and commercial vessels may request permission to transit the area from the Captain of the Port, Long Island Sound. Other entry into this zone is prohibited unless authorized by the Captain of the Port, Long Island Sound.

Any violation of the safety zone described herein is punishable by, among others, civil and criminal penalties, in rem liability against the offending vessel, and license sanctions.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this rule will be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This regulation may have some impact on the public, but the potential impact will be minimized for the following reasons: The safety zone is only for a temporary period, vessels may transit in all areas of the Norwalk River other than the area of the safety zone, recreational vessels may pass on the east side of the channel, and commercial vessels may request permission to transit the area from the Captain of the Port, Long Island Sound.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will 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 may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in those portions of the Norwalk River covered by the safety zone. For the reasons outlined in the Regulatory Evaluation section above, this rule will not have a significant impact on a substantial number of small entities.

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

Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If this rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call Lieutenant A. Logman, Waterways Management Officer, Group/Marine Safety Office Long Island Sound, at (203) 468-4429.

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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not affect 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 will not concern 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 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.

To help the Coast Guard establish regular and meaningful consultation and collaboration with Indian and Alaskan Native tribes, we published a notice in thee Federal Register (66 FR 363661, July 11, 2001) requesting comments on how to best carry out the Order. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. 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.

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.

The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A Categorical Exclusion Determination is available in the docket where indicated under ADDRESSES.

On January 24, 2003 (68 FR 3410), EPA issued a determination that the Metropolitan Washington, DC ozone nonattainment area (DC Area) failed to attain the ozone standard by the statutory date of November 15, 1999, and reclassified the area from “serious” to “severe” for one-hour ozone. As a severe nonattainment area, the DC Area must now meet the requirements of section 182(d) of the CAA, and attain the one-hour ozone standard by November 15, 2005. As a result of the reclassification to severe nonattainment, the States that comprise the DC Area (Maryland, Virginia, and the District of Columbia) must implement additional control measures and submit SIP revisions for post-1999 Rate of Progress Plans, Contingency Plans, and the Attainment Demonstration.

As part of Virginia's strategy to meet its portion of emission reductions keyed to the post-1999 ROPs, the 2005 attainment demonstration, and/or the contingency plan, the State adopted new measures to control volatile organic compound (VOC) emissions from four additional source categories, including a regulation to control emissions from solvent metal cleaning operations.

On February 23, 2004, the Commonwealth of Virginia submitted a formal revision to its SIP. The SIP revision consists of four new regulations to 9 VAC 5, chapter 40, amendments to one existing article of 9 VAC 5, chapter 40, and amendments to one article of 9 VAC chapter 20.

The new regulations are:

(1) 9 VAC 5 chapter 40, New Article 42—“Emission Standards for Portable Fuel Container Spillage in the Northern Virginia Volatile Organic Compound Emissions Control Area” (“Rule 4-42”)—(9 VAC 5-40-5700 to 9 VAC 5-40-5770).

(2) 9 VAC 5, chapter 40, New Article 47—“Emission Standards for Solvent Metal Cleaning Operations in the Northern Virginia Volatile Organic Compound Emissions Control Area” (“Rule 4-47”)—(9 VAC 5-40-6820 to 9 VAC 5-40-6970).

(3) 9 VAC 5, chapter 40, New Article 48—“Emission Standards for Mobile Equipment Repair and Refinishing Operations in the Northern Virginia Volatile Organic Compound Emission Control Area” (“Rule 4-48”)—(9 VAC 5-40-6970 to 9 VAC 5-40-7110).

(4) 9 VAC 5, chapter 40, New Article 49—“Emission Standards for Architectural and Industrial Maintenance Coatings in the Northern Virginia Volatile Organic Compound Emissions Control Area” (“Rule 4-49”)—(9 VAC 5-40-7120 to 9 VAC 5-40-7230).

The February 23, 2004, submittal also included amendments to 9 VAC 5-20-21, “Documents incorporated by reference,” to incorporate by reference additional test methods and procedures needed for Rule 4-42 or Rule 4-49, and, also amendments to section 9 VAC 5-40-3260 of Article 24, “Emission Standards for Solvent Metal Cleaning Operations Using Non-Halogenated Solvents” (“Rule 4-24”).

This action concerns only Rule 4-48 of the February 23, 2004, SIP revision. The remaining portions of the February 23, 2004, SIP revision submittal which will include Rule 4-42, Rule 4-47 and Rule 4-49, as well as all of the amendments and additions to 9 VAC 5-40-3260 and 9 VAC 5-20-21, will be the subject of separate rulemaking actions.

On February 23, 2004, the Virginia Department of Environmental Quality (VADEQ) submitted a formal revision to its SIP. The SIP revision consists of VOC emission standards for mobile equipment repair and refinishing operations in the northern Virginia counties of Arlington, Fairfax, Loudoun, Prince William, and Stafford, and the cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park. Affected persons must comply by January 1, 2005.

The Virginia mobile equipment repair and refinishing operations (Rule 4-48) applies to each mobile equipment repair and refinishing operation. The provisions also apply to each person who sells coatings used in such operations. This regulation applies only to sources in the northern Virginia volatile organic compounds emissions control area. The regulation defines applicability, compliance, notification, monitoring, recordkeeping, and reporting requirements similar to the OTC model rule.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrates a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * *.” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a State agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998, opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a State audit privilege and immunity law can affect only State enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the State plan, independently of any State enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, State audit privilege or immunity law.

EPA is approving a revision to the Commonwealth of Virginia SIP to establish regulations for the control of VOC emissions from mobile equipment repair and refinishing operations in the northern Virginia ozone nonattainment area, which was submitted on February 23, 2004. Implementation of this VOC control measure will strengthen the Virginia SIP, and result in emission reductions that will assist the DC area in meeting the additional requirements associated with its reclassification as a severe nonattainment area for one-hour ozone.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on August 23, 2004, without further notice unless EPA receives adverse comment by July 26, 2004. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 23, 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, approving the Commonwealth of Virginia's regulation to control emission from solvent metal cleaning operations in the northern Virginia area, may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

The United States Environmental Protection Agency (EPA) Region 2 announces the deletion of the property known as 475 South Jefferson Street in Orange, New Jersey which is a portion of the U.S. Radium Corp. Superfund Site (Site), Operable Unit Two, listed as located in Orange, New Jersey, from the National Priorities List (NPL). EPA maintains the NPL as the list of those sites that appear to present a significant risk to public health or the environment. This partial deletion pertains only to the property known as 475 South Jefferson Street, located in Orange, New Jersey (Block 158, Lot 21), at the corner of South Jefferson Street and Nassau Street. The property includes a six-story building and a paved parking lot. This partial deletion covers only the property known as 475 South Jefferson Street; all other properties and operable units remain on the NPL.

EPA considers this action to be noncontroversial and routine, and therefore, EPA is taking it without prior publication of a Notice of Intent to Delete. The action will be effective August 23, 2004, unless EPA receives significant adverse comments by July 26, 2004, on this action or the parallel Notice of Intent to Delete published in the Notice section of today's Federal Register . If significant adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this Direct Final Deletion before the effective date of deletion and the deletion will not take effect. EPA will, if appropriate, prepare a response to the comments received and will continue the deletion process on the basis of the Notice of Intent to Delete and the comments received. There will be no additional opportunities to comment.

Section II explains the criteria for deleting sites from the NPL, and Section III describes the procedures that EPA is using for this action. Section IV discusses the property and demonstrates how it meets the deletion criteria.

Section 300.425(e) of the NCP and the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List provides that properties may be deleted from the NPL where no further response is appropriate. In making this determination, EPA, in consultation with the State, will consider whether any of the following criteria has been met:

(i) Responsible parties or other persons have implemented all appropriate response actions required; or

(ii) All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

(iii) The remedial investigation has shown that the release poses no significant threat to public health or to the environment and, therefore, taking of remedial measures is not appropriate.

EPA proposes to delete this portion of the Site because all appropriate CERCLA response activities have been completed on this property. If new information becomes available which indicates the need for further action, EPA may initiate such actions under Section 300.425(e)(3) of the NCP. Pursuant to 40 CFR 300.425(e) of the NCP, any Site or portion of a Site deleted from the NPL remains eligible for Fund-financed remedial actions if conditions at the Site warrant such action.

The following procedures apply to the proposed deletion of the property known as 475 South Jefferson Street.

1. The Site was listed on the NPL in September 1983.

2. EPA selected a remedy for the Site, which included this property, in a Record of Decision (ROD) dated August 29, 1995. The remedy called for removal of radiological contamination at Operable Unit 2 of the Site.

3. 475 South Jefferson Street consists of a six-story commercial building located approximately three miles from the former U.S. Radium Corporation facility. Radiological contamination was found only on the sixth floor of the building and in a small section of the parking lot located at the rear of the building.

4. The remediation of 475 South Jefferson Street was conducted during Phase Six of the overall Site cleanup. Remedial work on the property began in January 2002 and was substantially complete in May 2003. It involved the removal of radiologically-contaminated material from the floor and walls of the sixth floor of the property, as well as from the affected area of the parking lot. A Remedial Action Report for the sixth phase of the cleanup was signed on September 25, 2003.

5. EPA recommends the deletion of this portion of the U.S. Radium Corp. Site and has prepared the relevant documents.

6. The State of New Jersey, through the New Jersey Department of Environmental Protection, has concurred with the deletion decision in a letter dated May 27, 2004.

7. Concurrent with this direct final partial deletion, a notice has been published in a local newspaper and appropriate notice has been distributed to Federal, State and local officials, and other interested parties. This notice announces a thirty-day public comment period on the deletion, which starts on the date of publication of this notice in the Federal Register and a newspaper of record.

8. EPA has placed all relevant Site documents in the Site information repositories identified above.

9. Concurrent with this action a notice of intent for partial deletion has been published in today's Federal Register . Upon completion of the thirty (30) day public comment period, EPA will review all comments received. If significant adverse comments are received concerning this action, the notice of intent to delete, the local notice, or the notice provided to Federal, State, and local officials and other interested parties, EPA will publish a timely notice of withdrawal of this Direct Final Deletion before its effective date. EPA will prepare, if appropriate, a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments received.

Deletion of a Site, or portion of a Site, from the NPL does not itself create, alter, or revoke any person's rights or obligations. Deletion from the NPL does not alter EPA's right to take appropriate enforcement actions. The NPL is designed primarily for informational purposes and to assist Agency management.

The following summary provides EPA's rationale for deletion of the portion of the U.S. Radium Corp. Site located at 475 South Jefferson Street from the NPL and EPA's finding that the criteria in 40 CFR 300.425(e) are satisfied:

The former U.S. Radium Corporation plant site was a radium-processing facility where extraction, production, application, and distribution took place from about 1915 through 1926. In addition, radium-contaminated soils and debris have been identified at more than 240 noncontiguous properties in the vicinity of the plant site and at various satellite locations throughout the municipalities of Orange, West Orange and South Orange. Investigations to identify other radium-contaminated properties associated with the site have covered approximately 650 properties and are still on-going. The noncontiguous vicinity and satellite properties are occupied by residences, light industries, offices, grocery stores, and apartment buildings.

Soil and building materials contain radium-226 and other radioactive materials. The radium-226 decays to radon gas and radon decay products which can concentrate in basements and other ground-level enclosed spaces. Residents who are directly exposed to radiation, inhale radioactive dust particles, or inadvertently ingest radioactive particles from the Site may suffer adverse health effects in the form of an increased risk of certain types of cancer. Workers and customers of commercial properties would be similarly affected.

Remedies for the Site were selected in two Records of Decision, signed in September 1993 and August 1995. The remedial action involves the excavation and off-site disposal of radium-contaminated material at the plant site and at affected Satellite properties. This is the final remedy for these properties. Ground water under these properties will be addressed by a separate operable unit and remains included in the NPL listing.

The long-term soil remedy has been divided into phases. Phase 6 of the remedy, which included the property known as 475 South Jefferson Street, began in September 2001 and was completed in September 2003.

All known radiological contamination has been removed from 475 South Jefferson Street. No radiological contamination is known to remain on this property or the properties surrounding it. All restoration and maintenance activities have been completed on this property and no further work is required as part of the cleanup of the U.S. Radium Corp. Site. Information about this work is contained in a Remedial Action Report dated September 2003.

Public participation activities for the U.S. Radium Corp. Site have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and section 117, 42 U.S.C. 9617. The RI/FS and the RODs were subject to a public review process. All other documents and information which EPA relied on or considered in recommending that no further activities are necessary at a portion of the U.S. Radium Corp. Site, and that this portion of the Site can be deleted from the NPL, are available for the public to review at the information repositories.

One of the three criteria for Site deletion specifies that EPA may delete a Site, or a portion of a Site, from the NPL if “all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate.” 40 CFR 300.425(e)(1)(ii). EPA, with the concurrence of the State of New Jersey, through the New Jersey Department of Environmental Protection, believes that this criterion for deletion has been met at 475 South Jefferson Street. Consequently, EPA is proposing deletion of this portion of the U.S. Radium Site from the NPL.

This is a summary of the Commission's Eighth Report and Order and Fifth Order on Reconsideration in CC Docket No. 96-262, adopted on May 13, 2004, and released on May 18, 2004. The complete text of this Order is available for public inspection Monday through Thursday from 8 a.m. to 4:30 p.m. and Friday from 8 a.m. to 11:30 a.m. in the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, Room CY-A257, 445 Twelfth Street, SW., Washington, DC 20554. The complete text is available also on the Commission's Internet site at http://www.fcc.gov . Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365. The complete text of the decision may be purchased from the Commission's duplicating contractor, Best Copying and Printing, Inc., Room CY-B402, 445 Twelfth Street, SW., Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or e-mail at http://www.bcpiweb.com .

1. In 2001, the Commission adopted new rules governing the charges for interstate switched access services provided by competitive LECs, Access Charge Reform, Reform of Access Charges Imposed by Competitive Local Exchange Carriers , CC Docket No. 96-262, Seventh Report and Order, 66 FR 27892, May 21, 2001, and Further Notice of Proposed Rulemaking, 66 FR 27927, May 21, 2001 ( CLEC Access Reform Order ). These rules established a regime whereby tariffed competitive LEC access rates cannot exceed a specified benchmark rate, 47 CFR 61.26(b). Under this regime, competitive LECs may not generally tariff interstate access charges above the competing incumbent LEC rate, 47 CFR 61.26(c).

2. In order to avoid too great a disruption for competitive carriers, however, the Commission established a three-year transition period. During the transition, competitive LECs are permitted to charge rates higher than those charged by the competing incumbent LEC, but their tariffed rates cannot exceed specific benchmark rates set by the Commission and contained in § 61.26(c) of the Commission's rules, 47 CFR 61.26(c). Under § 61.26(d) of the Commission's rules, 47 CFR 61.26(d), these transition rates are not available to competitive LECs in new markets where they began serving end-users after the effective date of the CLEC Access Reform Order . This three-year transition period ends on June 21, 2004, 47 CFR 61.26(c). The Commission also adopted a rural exemption, pursuant to which rural competitive LECs meeting certain criteria are permitted to tariff rates up to the highest rate band in the NECA tariff, 47 CFR 61.26(a) and (e).

3. With this decision, the Commission disposes of several petitions for reconsideration of the tariff rules adopted in the CLEC Access Reform Order . Although the Commission denies the petitions for reconsideration, it addresses several issues raised in petitions for clarification of the current rules. First, the Commission clarifies that a competitive LEC is entitled to charge the full benchmark rate if it provides an IXC with access to the competitive LEC's own end-users. It finds that the rate a competitive LEC charges for access components when it is not serving the end-user should be no higher than the rate charged by the competing incumbent LEC for the same functions. Second, the Commission provides guidance on the meaning of the appropriate switching rate used in determining the “competing ILEC rate” after the three-year transition period to the competing incumbent LEC rate ends. Third, the Commission clarifies that any pre-subscribed interexchange carrier charge (PICC) imposed by a competitive LEC qualifying for the rural exemption may be assessed in addition to the rural benchmark rate if and only to the extent that the competing incumbent LEC charges a PICC. Fourth, it identifies permissible ways in which competitive LECs may structure their rates if they serve a geographic area with more than one incumbent LEC. Fifth, the Commission clarifies the source of its authority to impose IXC interconnection obligations under section 201(a) and it denies a pending petition for waiver of the CLEC new markets rule. Finally, the Commission declines to set a separate access rate for originating toll-free (8YY) traffic and allows it to be governed by the same declining benchmark as other competitive LEC interstate access traffic.

4. Section 61.26(b) of the Commission's rules, 47 CFR 61.26(b), provides that a competitive LEC's tariffed rate for “its interstate switched exchange access services” cannot exceed the benchmark. Under § 61.26(a)(3), 47 CFR 61.26(a)(3) the term interstate switched exchange access services “shall include the functional equivalent of the ILEC interstate exchange access services typically associated with the following rate elements: Carrier common line (originating); carrier common line (terminating); local end office switching; interconnection charge; information surcharge; tandem switched transport termination (fixed); tandem switched transport facility (per mile); tandem switching.” The rate elements identified in § 61.26(a)(3), reflect those services needed to originate or terminate a call to a LEC's end-user. When a competitive LEC originates or terminates traffic to its own end-users, it is providing the functional equivalent of those services, even if the call is routed from the competitive LEC to the IXC through an incumbent LEC tandem.

5. The Commission is aware of a number of disputes regarding the appropriate compensation to be paid by IXCs when a competitive LEC handles interexchange traffic that is not originated or terminated by the competitive LEC's own end-users. Because neither the CLEC Access Reform Order nor other applicable precedent addressed the appropriate rate in this scenario, the Commission now clarifies that the benchmark rate established in the CLEC Access Reform Order is available only when a competitive LEC provides an IXC with access to the competitive LEC's own end-users. The Commission explains that a competitive LEC that provides access to its own end-users is providing the functional equivalent of the services associated with the rate elements listed in § 61.26(a)(3) and therefore is entitled to the full benchmark rate.

6. Because of the many disputes related to the rates charged by competitive LECs when they act as intermediate carriers, the Commission concludes that it is necessary to adopt a new rule to address these situations. The Commission amends § 61.26 of the Commission's rules, 47 CFR 61.26, on a prospective basis, to specify that the rate that a competitive LEC charges for access components when it is not serving the end-user should be no higher than the rate charged by the competing incumbent LEC for the same functions. The Commission explains that regulation of these rates is necessary because an IXC may have no choice but to accept traffic from an intermediate competitive LEC chosen by the originating or terminating carrier and that it is necessary to constrain the ability of competitive LECs to exercise this monopoly power.

7. Neither the CLEC Access Reform Order nor other applicable precedent addressed the appropriate rate a competitive LEC may charge when it is not serving the end-user. Further, the Commission established only a single rate for each year of the transition period and did not state that this rate was available only if a competitive LEC served the end-user on a particular call. Therefore, prior to this decision, the Commission finds that it would not have been unreasonable for a competitive LEC to charge the tariffed benchmark rate for traffic to or from end-users of other carriers, provided that the carrier serving the end-user did not also charge the IXC and provided that the competitive LEC's charges were otherwise in compliance with and supported by its tariff.

8. Under the existing rules, tariffed competitive LEC access rates must decrease over time until they reach the rate charged by the competing incumbent LEC, subject to some exceptions. In order to avoid litigation and uncertainty, the Commission clarifies the meaning of the competing incumbent LEC rate used to determine the benchmark. The Commission finds that the competing incumbent LEC switching rate is the end office switching rate when a competitive LEC originates or terminates calls to end-users and the tandem switching rate when a competitive LEC passes calls between two other carriers. Competitive LECs also have, and always had, the ability to charge for common transport when they provide it, including when they subtend an incumbent LEC tandem switch. Competitive LECs that impose such charges should calculate the rate in a manner that reasonably approximates the competing incumbent LEC rate.

9. Under § 61.26(d) of the Commission's rules (the CLEC new markets rule), 47 CFR 61.26(d), competitive LECs may not tariff a rate higher than the competing incumbent LEC rate in metropolitan statistical areas (MSAs) where the competitive LEC initiated service after the effective date of the CLEC Access Reform Order . The Commission declines to modify the rule as requested in petitions for reconsideration. In adopting the benchmark system for competitive LEC access charges, the Commission intended to limit the subsidy flowing from IXCs and the long distance market to competitive LECs and their end-users, and to do so with a bright line mechanism that is objective and easy to enforce. Modifying the rule as the competitive LECs suggest could substantially increase the amount by which IXCs subsidize competitors in the local-service market and would create ongoing incentives for economically inefficient entry in new markets.

10. The Commission also denies claims that it violated the Administrative Procedure Act because it did not provide notice that it was considering a different rule for new markets and did not provide any opportunity for parties to comment on it. The Commission specifically sought comment on the competing incumbent LEC rate as a benchmark in an earlier Further Notice of Proposed Rulemaking in CC Docket No. 96-262, Access Charge Reform , CC Docket No. 96-262, Further Notice of Proposed Rulemaking, 64 FR 51280 (1999). Thus, the Commission concludes that it should have been apparent to any interested party that the Commission was contemplating a benchmark at the competing incumbent LEC rate for at least some markets. That the Commission ultimately decided to adopt a transition mechanism for some parties does not in any way render the notice provided to parties defective.

11. Moreover, the Commission clarifies that the CLEC new markets rule does not apply if the competitive LEC would otherwise qualify for the rural exemption contained in § 61.26(e) of the Commission's rules. The rural exemption rate is a substitute for the incumbent LEC rate that would otherwise be used as the benchmark rate. The Commission agrees that this is the correct interpretation of the Commission's CLEC Access Reform Order , and amends § 61.26(e) accordingly to read “Notwithstanding paragraphs (b) through (d) of this section * * *.”

12. Under § 61.26(f) of the Commission's rules (the rural exemption), 47 CFR 61.26(f), qualifying competitive LECs competing with non-rural incumbent LECs may tariff rates up to the rate prescribed in the NECA access tariff, assuming the highest rate band for local switching and the transport interconnection charge minus the NECA tariff's carrier common line (CCL) charge if the competing incumbent LEC is subject to certain access rates. The Commission retains the rural exemption and declines requests to broaden its applicability based on the record. In adopting the rural exemption, the Commission intended to keep the exemption as narrow as possible to minimize the strain it placed on the interexchange market. The Commission also emphasized the need for administrative simplicity, and noted that it would apply only to a small number of carriers serving a small portion of the nation's access lines.

13. The Commission also declines to revise the rural exemption to allow competitive LECs to charge the CCL portion of the NECA rate. Excluding the NECA tariff's CCL charge when the competitive LEC competes with a CALLS incumbent LEC promotes parity between the competing carriers. Because both the CCL charge and transport interconnection charge have since been eliminated, the Commission revises § 61.26(e) of the rules to remove any references to the CCL and the transport interconnection charge.

14. The Commission further clarifies that a PICC may be imposed by a rural competitive LEC in addition to the rural exemption rate if and only to the extent that the competing incumbent LEC assesses a PICC, and revises § 61.26(e) of the Commission's rules accordingly. As the Commission found in the CLEC Access Reform Order, the ability of rural competitive LECs to assess a multi-line business PICC obviated, in part, the need for a CCL charge because the PICC provided a potential revenue source.

15. The Commission also rejects a specific proposal to modify the benchmark scheme to allow competitive LECs to charge higher access rates in lower density markets. In creating exemptions to the general benchmark scheme, the Commission emphasized the need for administrative simplicity and narrow application. The proposal considered would not meet these goals. Moreover, the proposed proxies for density would be ill-suited to the job, and additional arguments made in support of this proposal rely on the assumption that there has been some regulated determination of competitive LEC costs, which is not the case.

16. The Commission further specifies what access rate applies when more than one incumbent LEC operates within a competitive LEC's service area. It states that competitive LECs serving an area with multiple incumbent LECs can qualify for the safe harbor by charging different rates for access to particular end-users based on the access rate that would have been charged by the incumbent LEC in whose service area that particular end-user resides. The record suggests, however, that some competitive LECs may prefer to charge IXCs a blended access rate when more than one incumbent LEC operates within a competitive LEC's service area. The Commission confirms that one alternative for competitive LECs is to negotiate a blended access rate with the IXCs. If a competitive LEC charges a blended access rate other than a negotiated rate, however, the Commission finds that such a rate must reasonably approximate the rate that an IXC would have paid to the competing incumbent LECs for access to the competitive LEC's customers.

17. The Commission also declines to condition the IXCs' section 201(a) duty to accept competitive LEC access services on the provision of billing name and address (BNA) information that the IXC deems sufficient. The Commission considered the issue of LEC obligations to provide BNA information in the context of an extensive rulemaking proceeding, and determined that, in some cases, LECs are required to provide billing information under tariff. Moreover, competitive LECs persuasively argue that this proposal would encourage IXCs to find inadequacies with competitive LECs' BNA information in order to avoid accepting (and paying for) access service. This could create a loophole in the 201(a) obligation that the Commission imposed and would thereby again endanger the ubiquity of the network, a consideration that substantially animated the CLEC Access Reform Order .

18. The Commission also declines to addresses several other specific requests contained in petitions for reconsideration and clarification. For instance, the Commission declines to address whether past refusals of AT&T to continue providing service without authority from the Commission violate section 214 and section 203(c) of the Act. The Commission finds that whether the prior actions of AT&T violated the Act depends on fact-specific findings that are more appropriately handled in the context of an enforcement proceeding. Similarly, the Commission finds that any claims of violations of section 202(a) or section 203(c) should be decided on a case-by-case basis because such claims depend on fact-specific circumstances. Moreover, the Commission rejects a request to impose a negotiation or arbitration requirement on IXCs and permit competitive LECs to tariff rates above the benchmark if cost-justified. The Commission observes that this request assumes incorrectly that the Commission adopted a cost-based approach to competitive LEC access charges in its CLEC Access Reform Order .

19. Further, in the CLEC Access Reform Order , the Commission determined that section 201(a) of the Act places certain limitations on an IXC's ability to refuse competitive LEC access service. In determining these limitations, the Commission focused on the first clause of section 201(a), which requires common carriers to furnish communication service upon reasonable request therefor. In this discussion, the Commission also referenced the second clause of section 201(a), which empowers the Commission, after a hearing and determination of the public interest, to order common carriers to establish physical connections with other carriers, and to establish through routes and charges for certain communications. The Commission did not, however, explicitly rely on this portion of section 201(a) in imposing limitations on an IXC's ability to refuse service. The Commission now finds it necessary to clarify its intent to rely on the second clause of section 201(a) to support such limitations. Accordingly, the Commission finds that an IXC's refusal to accept competitive LEC access service at rates at or below the benchmark would run afoul of the second clause of section 201(a).

20. Finally, the Commission denies a Petition for Temporary Waiver of Commission rule in 47 CFR 61.26(d), the CLEC new markets rule, as applied to certain MSAs that Z-Tel was capable of serving as of the petition date. The Commission denies the petition because the arguments made by Z-Tel and other parties in support of a waiver are identical to those considered and rejected in this decision. The Commission also denies the petition for the separate reason that Z-Tel failed to demonstrate any special circumstances necessary to support a waiver of the Commission's rules.

21. In the Further Notice of Proposed Rulemaking issued with the CLEC Access Reform Order , the Commission raised various questions relating to toll-free (8YY) traffic originating on competitive LEC networks. The Commission concludes that it is not necessary immediately to cap competitive LEC access rates for 8YY traffic at the rate of the competing incumbent LEC, and allows it to be governed by the same declining benchmark rate to which other competitive LEC access traffic is subject. The Commission is not convinced that the revenue-sharing arrangements that competitive LECs may have entered into with 8YY generators necessarily affect the level of traffic that these customers, typically universities and hotels, generate. The IXCs have failed to demonstrate that commission payments to 8YY generators such as universities or hotels translate effectively into incentives for the individuals who actually use those facilities to place excessive or fraudulent 8YY calls. Moreover, even if the Commission were persuaded that there was an incentive for 8YY traffic generation, the fact that competitive LEC access rates are now subject to the declining benchmark should eliminate any harm to IXCs from this traffic.

22. The Commission also rejects AT&T's request that we adopt a separate competitive LEC access rate for outbound 8YY traffic carried over dedicated local access facilities. The Commission finds that the record does not support adoption of a separate lower benchmark rate based on the incumbent LEC local switching rate. To the extent that AT&T is concerned that it is paying two carriers for originating a call, the Commission addresses that concern by clarifying that the rate that a competitive LEC charges for access components when it is not serving the end-user should be no higher than the rate charged by the competing incumbent LEC for the same functions. When there are no intermediate carriers between the competitive LEC and the end-user, the fact that the end-user may provide some portion of the facilities would seem to be irrelevant.

23. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the 1999 Further Notice of Proposed Rulemaking (FNPRM) in CC Docket No. 96-262, 64 FR 51280, September 22, 1999. The Commission sought written public comment on the proposals in that FNPRM, including comment on the IRFA. A Final Regulatory Flexibility analysis was provided in the Sixth Report and Order, 65 FR 38684, June 21, 2000, as well as the Seventh Report and Order, 66 FR 27892, May 21, 2001, and Further Notice of Proposed Rulemaking, 66 FR 27927, May 21, 2001 ( CLEC Access Reform Order ). This present Supplemental Final Regulatory Flexibility Act Analysis conforms to the RFA. To the extent that any statement in this Supplemental FRFA is perceived as creating ambiguity with respect to Commission rules or statements made in the sections of these orders preceding the Supplemental FRFA, the rules and statement set forth in those preceding sections are controlling.

24. In the CLEC Access Reform Order, the Commission revised its tariff rules more closely to align tariffed competitive LEC access rates with those of incumbent LECs. Specifically, the Commission limited to a declining benchmark the amounts that competitive LECs may tariff for interstate access services; restricted the interstate access rates of competitive LECs entering new markets to the rates of the competing incumbent local exchange carrier (incumbent LEC); and established a rural exemption permitting qualifying carriers to charge rates above the benchmark for their interstate access services. In adopting these rules, the Commission sought to ensure, by the least intrusive means possible, that competitive LEC access charges are just and reasonable. The Commission also sought to reduce existing regulatory arbitrage opportunities, spur efficient local competition, and avoid disrupting the development of competition in the local telecommunications market.

25. With this order, the Commission disposes of seven petitions for reconsideration or clarification of these rules, and a related waiver request. Specifically, the Commission rejects each of the reconsideration requests and related request for waiver, but makes several clarifications. In response to an issue raise by Qwest in a petition for clarification or, in the alternative, reconsideration, the Commission clarifies that the benchmark rate is available only when a competitive LEC provides an IXC with access to the competitive LEC's own end-users. The Commission finds that the rate that a competitive LEC charges for access components when it is not serving the end-user should be no higher than the rate charged by the competing incumbent LEC for the same functions, and we amend the current rules in accordance with this finding. The Commission also clarifies that the competing incumbent LEC rate is the end office switching rate when a competitive LEC originates or terminates calls to end-users and the tandem switching rate when a competitive LEC passes calls between two other carriers. The Commission concludes that the regulation of these rates is necessary for all the same reasons the Commission identified in the CLEC Access Reform Order .

26. The Commission also responds to a request by the Rural Independent Competitive Alliance (RICA) to clarify whether PICCs may be tariffed in addition to the rural exemption rate specified in § 61.26(e) of the Commission's rules and whether PICCs may be tariffed when the competing incumbent LEC does not have a PICC. In this order, the Commission clarifies that any PICC imposed by a competitive LEC qualifying for the rural exemption may be assessed in addition to the rural benchmark rate if and only to the extent that the competing incumbent LEC charges a PICC. In the CLEC Access Reform Order, the Commission found that the ability of rural competitive LECs to assess a multi-line business PICC obviated, in part, the need for a CCL charge because the PICC provided a potential revenue source. This clarification will ensure that rural competitive LECs are able to assess a PICC on IXCs as intended by the Commission, but if and only to the extent that the competing incumbent LEC charges a PICC. Further, this clarification is necessary to more closely align tariffed competitive LEC access rates with those of incumbent LECs.

27. In a separate petition for clarification, U.S. TelePacific asks the Commission to clarify and establish a simple methodology by which the benchmark rate will be set where a competitive LEC service area includes territory served by more than a single incumbent LEC. In this order, the Commission confirms that competitive LECs serving an area with multiple incumbent LECs can qualify for the safe harbor by charging different rates for access to particular end-users based on the access rate that would have been charged by the incumbent LEC in whose service area that particular end-user resides. As an alternative method, the Commission will permit a competitive LEC to charge an IXC a blended access rate only if that rate reasonably approximates the rate that an IXC would have paid to the competing incumbent LECs for access to the competitive LEC's customers. By permitting an alternative methodology based on a blended rate, the Commission seeks to ensure that the competitive LEC access rates are just and reasonable, and, at the same time, to minimize the burdens associated with establishing several different rates within a competitive LEC's service area.

28. These orders are adopted pursuant to sections 1-5, 201-205, 214, 218-220, 254, 303(r), 403, 405, 502 and 503 of the Communications Act of 1934, as amended, 47 U.S.C. 151-155, 201-205, 214, 218-220, 254, 303(r), 403, 405, 502 and 503.

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

30. In this section, we further describe and estimate the number of small entity licensees and regulatees that may also be indirectly affected by rules adopted pursuant to this Order. The most reliable source of information regarding the total numbers of certain common carrier and related providers nationwide, as well as the number of commercial wireless entities, appears to be the data that the Commission publishes in its Trends in Telephone Service report. The SBA has developed small business size standards for wireline and wireless small businesses within the three commercial census categories of Wired Telecommunications Carriers, Paging, and Cellular and Other Wireless Telecommunications. Under these categories, a business is small if it has 1,500 or fewer employees. Below, using the above size standards and others, we discuss the total estimated numbers of small businesses that might be affected by our actions.

31. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g. , a wired telecommunications carrier having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

32. Wired Telecommunications Carriers. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. According to Census Bureau data for 1997, there were 2,225 firms in this category, total, that operated for the entire year. Of this total, 2,201 firms had employment of 999 or fewer employees, and an additional 24 firms had employment of 1,000 employees or more. Thus, under this size standard, the majority of firms can be considered small.

33. Incumbent Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to incumbent local exchange services. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,337 carriers reported that they were engaged in the provision of local exchange services. Of these 1,337 carriers, an estimated 1,032 have 1,500 or fewer employees and 305 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by the rules and policies adopted herein.

34. Competitive Local Exchange Carriers (CLECs), Competitive Access Providers (CAPs), and “Other Local Exchange Carriers.” Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to providers of competitive exchange services or to competitive access providers or to “Other Local Exchange Carriers,” all of which are discrete categories under which TRS data are collected. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 609 companies reported that they were engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 609 companies, an estimated 458 have 1,500 or fewer employees and 151 have more than 1,500 employees. In addition, 35 carriers reported that they were “Other Local Service Providers.” Of the 35 “Other Local Service Providers,” an estimated 34 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, and “Other Local Exchange Carriers” are small entities that may be affected by the rules and policies adopted herein.

35. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to interexchange services. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 261 companies reported that their primary telecommunications service activity was the provision of interexchange services. Of these 261 companies, an estimated 223 have 1,500 or fewer employees and 38 have more than 1,500 employees. Consequently, the Commission estimates that the majority of interexchange service providers are small entities that may be affected by the rules and policies adopted herein.

36. Operator Service Providers (OSPs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to operator service providers. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 23 companies reported that they were engaged in the provision of operator services. Of these 23 companies, an estimated 22 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the majority of operator service providers are small entities that may be affected by the rules and policies adopted herein.

37. Payphone Service Providers (PSPs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to payphone service providers. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 761 companies reported that they were engaged in the provision of payphone services. Of these 761 companies, an estimated 757 have 1,500 or fewer employees and four have more than 1,500 employees. Consequently, the Commission estimates that the majority of payphone service providers are small entities that may be affected by the rules and policies adopted herein.

38. Prepaid Calling Card Providers. The SBA has developed a size standard for a small business within the category of Telecommunications Resellers. Under that SBA size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 37 companies reported that they were engaged in the provision of prepaid calling cards. Of these 37 companies, an estimated 36 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the majority of prepaid calling card providers are small entities that may be affected by the rules and policies adopted herein.

39. Other Toll Carriers. Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to “Other Toll Carriers.” This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission's data, 92 companies reported that their primary telecommunications service activity was the provision of other toll carriage. Of these 92 companies, an estimated 82 have 1,500 or fewer employees and ten have more than 1,500 employees. Consequently, the Commission estimates that most “Other Toll Carriers” are small entities that may be affected by the rules and policies adopted herein.

40. Paging. The SBA has developed a small business size standard for Paging, which consists of all such firms having 1,500 or fewer employees. According to Census Bureau data for 1997, in this category there was a total of 1,320 firms that operated for the entire year. Of this total, 1,303 firms had employment of 999 or fewer employees, and an additional seventeen firms had employment of 1,000 employees or more. Thus, under this size standard, the majority of firms can be considered small.

41. Cellular and Other Wireless Telecommunications. The SBA has developed a small business size standard for Cellular and Other Wireless Telecommunication, which consists of all such firms having 1,500 or fewer employees. According to Census Bureau data for 1997, in this category there was a total of 977 firms that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional twelve firms had employment of 1,000 employees or more. Thus, under this size standard, the majority of firms can be considered small.

42. Broadband Personal Communications Service. The broadband Personal Communications Service (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of $40 million or less in the three previous calendar years. For Block F, an additional classification for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years.” These standards defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. No small businesses, within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. On March 23, 1999, the Commission re- auctioned 347 C, D, E, and F Block licenses. There were 48 small business winning bidders. On January 26, 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Based on this information, the Commission concludes that the number of small broadband PCS licenses will include the 90 winning C Block bidders, the 93 qualifying bidders in the D, E, and F Block auctions, the 48 winning bidders in the 1999 re-auction, and the 29 winning bidders in the 2001 re-auction, for a total of 260 small entity broadband PCS providers, as defined by the SBA small business size standards and the Commission's auction rules. We note that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated.

43. Narrowband Personal Communications Services. To date, two auctions of narrowband personal communications services (PCS) licenses have been conducted. For purposes of the two auctions that have already been held, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less. Through these auctions, the Commission has awarded a total of 41 licenses, out of which 11 were obtained by small businesses. To ensure meaningful participation of small business entities in future auctions, the Commission has adopted a two-tiered small business size standard in the Narrowband PCS Second Report and Order. A “small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. A “very small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. The SBA has approved these small business size standards. In the future, the Commission will auction 459 licenses to serve Metropolitan Trading Areas (MTAs) and 408 response channel licenses. There is also one megahertz of narrowband PCS spectrum that has been held in reserve and that the Commission has not yet decided to release for licensing. The Commission cannot predict accurately the number of licenses that will be awarded to small entities in future actions. However, four of the 16 winning bidders in the two previous narrowband PCS auctions were small businesses, as that term was defined under the Commission's Rules. The Commission assumes, for purposes of this analysis, that a large portion of the remaining narrowband PCS licenses will be awarded to small entities. The Commission also assumes that at least some small businesses will acquire narrowband PCS licenses by means of the Commission's partitioning and disaggregation rules.

44. 220 MHz Radio Service—Phase I Licensees . The 220 MHz service has both Phase I and Phase II licenses. Phase I licensing was conducted by lotteries in 1992 and 1993. There are approximately 1,515 such non-nationwide licensees and four nationwide licensees currently authorized to operate in the 220 MHz band. The Commission has not developed a small business size standard for small entities specifically applicable to such incumbent 220 MHz Phase I licensees. To estimate the number of such licensees that are small businesses, we apply the small business size standard under the SBA rules applicable to “Cellular and Other Wireless Telecommunications” companies. This standard provides that such a company is small if it employs no more than 1,500 persons. According to Census Bureau data for 1997, there were 977 firms in this category, total, that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. If this general ratio continues in the context of Phase I 220 MHz licensees, the Commission estimates that nearly all such licensees are small businesses under the SBA's small business size standard.

45. 200 MHz Radio Service—Phase II Licensees . The 220 MHz service has both Phase I and Phase II licenses. The Phase II 220 MHz service is a new service, and is subject to spectrum auctions. In the 220 MHz Third Report and Order , we adopted a small business size standard for “small” and “very small” businesses for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. This small business size standard indicates that a “small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. A “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that do not exceed $3 million for the preceding three years. The SBA has approved these small business size standards. Auctions of Phase II licenses commenced on September 15, 1998, and closed on October 22, 1998. In the first auction, 908 licenses were auctioned in three different-sized geographic areas: three nationwide licenses, 30 Regional Economic Area Group (EAG) Licenses, and 875 Economic Area (EA) Licenses. Of the 908 licenses auctioned, 693 were sold. Thirty-nine small businesses won licenses in the first 220 MHz auction. The second auction included 225 licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies claiming small business status won 158 licenses.

46. 800 MHz and 900 MHz Specialized Mobile Radio Licenses . The Commission awards “small entity” and “very small entity” bidding credits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 900 MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar years, or that had revenues of no more than $3 million in each of the previous calendar years. The SBA has approved these size standards. The Commission awards “small entity” and “very small entity” bidding credits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz bands to firms that had revenues of no more than $40 million in each of the three previous calendar years, or that had revenues of no more than $15 million in each of the previous calendar years. These bidding credits apply to SMR providers in the 800 MHz and 900 MHz bands that either hold geographic area licenses or have obtained extended implementation authorizations. The Commission does not know how many firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. One firm has over $15 million in revenues. The Commission assumes, for purposes here, that all of the remaining existing extended implementation authorizations are held by small entities, as that term is defined by the SBA. The Commission has held auctions for geographic area licenses in the 800 MHz and 900 MHz SMR bands. There were 60 winning bidders that qualified as small or very small entities in the 900 MHz SMR auctions. Of the 1,020 licenses won in the 900 MHz auction, bidders qualifying as small or very small entities won 263 licenses. In the 800 MHz auction, 38 of the 524 licenses won were won by small and very small entities. We note that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated.

47. Private and Common Carrier Paging . In the Paging Third Report and Order , we developed a small business size standard for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A “small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA has approved these size standards. An auction of Metropolitan Economic Area licenses commenced on February 24, 2000, and closed on March 2, 2000. Of the 985 licenses auctioned, 440 were sold. Fifty-seven companies claiming small business status won. At present, there are approximately 24,000 Private-Paging site-specific licenses and 74,000 Common Carrier Paging licenses. According to the most recent Trends in Telephone Service , 471 carriers reported that they were engaged in the provision of either paging and messaging services or other mobile services. Of those, the Commission estimates that 450 are small, under the SBA business size standard specifying that firms are small if they have 1,500 or fewer employees.

48. 700 MHz Guard Band Licensees . In the 700 MHz Guard Band Order, we adopted a small business size standard for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. An auction of 52 Major Economic Area (MEA) licenses commenced on September 6, 2000, and closed on September 21, 2000. Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band licenses commenced on February 13, 2001 and closed on February 21, 2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small business that won a total of two licenses.

49. Rural Radiotelephone Service . The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service. A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (BETRS). The Commission uses the SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” i.e. , an entity employing no more than 1,500 persons. There are approximately 1,000 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules and policies adopted herein.

50. Air-Ground Radiotelephone Service . The Commission has not adopted a small business size standard specific to the Air-Ground Radiotelephone Service. We will use SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” i.e. , an entity employing no more than 1,500 persons. There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and we estimate that almost all of them qualify as small under the SBA small business size standard.

51. Aviation and Marine Radio Services . Small businesses in the aviation and marine radio services use a very high frequency (VHF) marine or aircraft radio and, as appropriate, an emergency position-indicating radio beacon (and/or radar) or an emergency locator transmitter. The Commission has not developed a small business size standard specifically applicable to these small businesses. For purposes of this analysis, the Commission uses the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. Most applicants for recreational licenses are individuals. Approximately 581,000 ship station licensees and 131,000 aircraft station licensees operate domestically and are not subject to the radio carriage requirements of any statute or treaty. For purposes of our evaluations in this analysis, we estimate that there are up to approximately 712,000 licensees that are small businesses (or individuals) under the SBA standard. In addition, between December 3, 1998 and December 14, 1998, the Commission held an auction of 42 VHF Public Coast licenses in the 157.1875-157.4500 MHz (ship transmit) and 161.775-162.0125 MHz (coast transmit) bands. For purposes of the auction, the Commission defined a “small” business as an entity that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $15 million. In addition, a “very small” business is one that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $3 million. There are approximately 10,672 licensees in the Marine Coast Service, and the Commission estimates that almost all of them qualify as “small” businesses under the above special small business size standards.

52. Fixed Microwave Services . Fixed microwave services include common carrier, private operational-fixed, and broadcast auxiliary radio services. At present, there are approximately 22,015 common carrier fixed licensees and 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not created a size standard for a small business specifically with respect to fixed microwave services. For purposes of this analysis, the Commission uses the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. The Commission does not have data specifying the number of these licensees that have more than 1,500 employees, and thus is unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are up to 22,015 common carrier fixed licensees and up to 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies adopted herein. We noted, however, that the common carrier microwave fixed licensee category includes some large entities.

53. Offshore Radiotelephone Service . This service operates on several UHF television broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the Gulf of Mexico. There are presently approximately 55 licensees in this service. We are unable to estimate at this time the number of licensees that would qualify as small under the SBA's small business size standard for “Cellular and Other Wireless Telecommunications” services. Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees.

54. Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission established small business size standards for the wireless communications services (WCS) auction. A “small business” is an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” is an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these small business size standards. The Commission auctioned geographic area licenses in the WCS service. In the auction, there were seven winning bidders that qualified as “very small business” entities, and one that qualified as a “small business” entity. We conclude that the number of geographic area WCS licensees affected by this analysis includes these eight entities.

55. 39 GHz Service . The Commission created a special small business size standard for 39 GHz licenses—an entity that has average gross revenues of $40 million or less in the three previous calendar years. An additional size standard for “very small business” is: an entity that, together with affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. The SBA has approved these small business size standards. The auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed on May 8, 2000. The 18 bidders who claimed small business status won 849 licenses. Consequently, the Commission estimates that 18 or fewer 39 GHz licensees are small entities that may be affected by the rules and policies adopted herein.

56. Multipoint Distribution Service, Multichannel Multipoint Distribution Service, and ITFS . Multichannel Multipoint Distribution Service (MMDS) systems, often referred to as “wireless cable,” transmit video programming to subscribers using the microwave frequencies of the Multipoint Distribution Service (MDS) and Instructional Television Fixed Service (ITFS). In connection with the 1996 MDS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years. The MDS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. MDS also includes licensees of stations authorized prior to the auction. In addition, the SBA has developed a small business size standard for Cable and Other Program Distribution, which includes all such companies generating $12.5 million or less in annual receipts. According to Census Bureau data for 1997, there were a total of 1,311 firms in this category, total, that had operated for the entire year. Of this total, 1,180 firms had annual receipts of under $10 million and an additional 52 firms had receipts of $10 million or more but less than $25 million. Consequently, we estimate that the majority of providers in this service category are small businesses that may be affected by the rules and policies adopted herein. This SBA small business size standard also appears applicable to ITFS. There are presently 2,032 ITFS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, we tentatively conclude that at least 1,932 licensees are small businesses.

57. Local Multipoint Distribution Service . Local Multipoint Distribution Service (LMDS) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. The auction of the 1,030 Local Multipoint Distribution Service (LMDS) licenses began on February 18, 1998 and closed on March 25, 1998. The Commission established a small business size standard for LMDS licenses as an entity that has average gross revenues of less than $40 million in the three previous calendar years. An additional small business size standard for “very small business” was added as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. The SBA has approved these small business size standards in the context of LMDS auctions. There were 93 winning bidders that qualified as small entities in the LMDS auctions. A total of 93 small and very small business bidders won approximately 277 A Block licenses and 387 B Block licenses. On March 27, 1999, the Commission re-auctioned 161 licenses; there were 40 winning bidders. Based on this information, we conclude that the number of small LMDS licenses consists of the 93 winning bidders in the first auction and the 40 winning bidders in the re-auction, for a total of 133 small entity LMDS providers.

58. 218-219 MHz Service . The first auction of 218-219 MHz spectrum resulted in 170 entities winning licenses for 594 Metropolitan Statistical Area licenses. Of the 594 licenses, 557 were won by entities qualifying as a small business. For that auction, the small business size standard was an entity that, together with its affiliates, has no more than a $6 million net worth and, after federal income taxes (excluding any carry over losses), has no more than $2 million in annual profits each year for the previous two years. In the 218-219 MHz Report and Order and Memorandum Opinion and Order , we established a small business size standard for a “small business” as an entity that, together with its affiliates and persons or entities that hold interests in such an entity and their affiliates, has average annual gross revenues not to exceed $15 million for the preceding three years. A “very small business” is defined as an entity that, together with its affiliates and persons or entities that hold interests in such an entity and its affiliates, has average annual gross revenues not to exceed $3 million for the preceding three years. The SBA has approved these size standards. We cannot estimate, however, the number of licenses that will be won by entities qualifying as small or very small businesses under our rules in future auctions of 218-219 MHz spectrum.

59. 24 GHz—Incumbent Licensees . This analysis may affect incumbent licensees who were relocated to the 24 GHz band from the 18 GHz band, and applicants who wish to provide services in the 24 GHz band. The applicable SBA small business size standard is that of “Cellular and Other Wireless Telecommunications” companies. This category provides that such a company is small if it employs no more than 1,500 persons. According to Census Bureau data for 1997, there were 977 firms in this category that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. Thus, under this size standard, the great majority of firms can be considered small. These broader census data notwithstanding, we believe that there are only two licensees in the 24 GHz band that were relocated from the 18 GHz band, Teligent and TRW, Inc. It is our understanding that Teligent and its related companies have less than 1,500 employees, though this may change in the future. TRW is not a small entity. Thus, only one incumbent licensee in the 24 GHz band is a small business entity.

60. 24 GHz—Future Licensees . With respect to new applicants in the 24 GHz band, the small business size standard for “small business” is an entity that, together with controlling interests and affiliates, has average annual gross revenues for the three preceding years not in excess of $15 million. “Very small business” in the 24 GHz band is an entity that, together with controlling interests and affiliates, has average gross revenues not exceeding $3 million for the preceding three years. The SBA has approved these small business size standards. These size standards will apply to the future auction, if held.

61. Internet Service Providers . While internet service providers (ISPs) are only indirectly affected by our present actions, and ISPs are therefore not formally included within this present IRFA, we have addressed them informally to create a fuller record and to recognize their participation in this proceeding. The SBA has developed a small business size standard for Online Information Services, which consists of all such companies having $21 million or less in annual receipts. According to Census Bureau data for 1997, there were 2,751 firms in this category, total, that operated for the entire year. Of this total, 2,659 firms had annual receipts of $9,999,999 or less, and an additional 67 had receipts of $10 million to $24,999,999. Thus, under this size standard, the great majority of firms can be considered small.

62. Satellite Service Carriers . The SBA has developed a size standard for small businesses within the category of Satellite Telecommunications. Under that SBA size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 31 carriers reported that they were engaged in the provision of satellite services. Of these 31 carriers, an estimated 25 have 1,500 or fewer employees and six, alone or in combination with affiliates, have more than 1,500 employees. Consequently, the Commission estimates that there are 31 or fewer satellite service carriers which are small businesses that may be affected by the rules and policies proposed herein.

63. In this order, the Commission finds that the rate that a competitive LEC charges for access components when it is not serving the end-user should be no higher than the rate charged by the competing incumbent LEC for the same functions, and we amend the current rules in accordance with this finding. This amendment requires competitive LECs to review the federal tariff of the competing incumbent LEC to determine the rate charged for various functions or services. Under the current rules, after June 21, 2004, review of the competing incumbent LEC's tariff is required to determine the “competing ILEC rate.” Therefore, this amendment does not modify the existing compliance requirement.

64. Pursuant to a rule clarification adopted in this order, if a competitive LEC eligible to charge a higher access rate pursuant to the rural exemption chooses to also charge a PICC, the competitive LEC is required to review the federal tariff of the competing incumbent LEC to see if the incumbent LEC for that particular end-user charges a PICC, and if so, the amount of that incumbent LEC's PICC. Under the current rules, review of the competing incumbent LEC's tariff is required to determine the rural exemption amount. Therefore, this clarification does not modify the existing compliance requirement.

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

66. Throughout this order, we seek to further resolve questions and contentious issues that remain with respect to competitive LEC access services. Because there are both small entity IXCs and small entity competitive LECs—often with conflicting interests in this proceeding—we expect that small entities will be affected by the clarifications adopted in this decision. As discussed below, we conclude, based on a consideration both of the steps needed to minimize significant economic impact on small entities and of significant alternatives, that our clarifications best balance the goals of removing opportunities for regulatory arbitrage and minimizing the burdens placed on carriers.

67. In this order, the Commission clarifies that the benchmark rate is available only when a competitive LEC provides an IXC with access to the competitive LEC's own end-users. With this clarification, the Commission will minimize the opportunity for regulatory arbitrage, and ensure that small IXCs continue to pay just and reasonable rates for competitive LEC switched access services. This clarification also ensures that IXCs continue to accept and pay for competitive LEC access services, thereby protecting universal connectivity.

68. In adopting this clarification, the Commission considers and rejects the alternative approach advanced by some competitive LECs, which would permit competitive LECs to charge the full benchmark rates when they provide any component of the interstate switched access services used in connecting an end-user to an IXC. We believe that an approach in which rates are not tethered to the provision of particular services would be an invitation to abuse because it would enable multiple competitive LECs to impose the full benchmark rate on a single call. This outcome would be inconsistent with the Commission's goal to ensure just and reasonable competitive LEC access rates. The approach advanced by competitive LECs also would enable competitive LECs to discriminate among IXCs, including small entities, by providing varying levels of service for the same price. Thus, we believe the clarification provided will minimize the impact that excessive rates and discriminatory behavior may have on IXCs, including any small businesses.

69. The Commission finds that the rate that a competitive LEC charges for access components when it is not serving the end-user should be no higher than the rate charged by the competing incumbent LEC for the same functions. We conclude that regulation of these rates is necessary for all the reasons that we identified in the CLEC Access Reform Order . Specifically, an IXC may have no choice but to accept traffic from an intermediate competitive LEC chosen by the originating or terminating carrier and it is necessary to constrain the ability of competitive LECs to exercise this monopoly power. At the same time, the Commission declines to require a specific rate structure or rate elements for the services provided by a competitive LEC in an effort to minimize the regulatory burdens on competitive LECs, including small businesses.

70. In addition, the Commission clarifies that the competing incumbent LEC rate is the end office switching rate when a competitive LEC originates or terminates calls to end-users and the tandem switching rate when a competitive LEC passes calls between two other carriers. In providing this clarification, the Commission considers and rejects the proposal advanced by NewSouth because it would allow competitive LECs to charge IXCs, including small entities, for services they may not provide. We find that clarification of the competing incumbent LEC rate is necessary to avoid litigation and uncertainty. Eliminating the uncertainty surrounding the existing rules will benefit both competitive LECs and IXCs, including small businesses, by preventing potential billing disputes.

71. The Commission also clarifies the application of the multi-line business PICC under the rural exemption. Although Sprint advances an alternative interpretation of how the PICC is to be calculated under the rural exemption, that interpretation would deprive competitive LECs, including small entities, of additional revenues taken into account when formulating the rural exemption in the CLEC Access Reform Order . Under the clarification provided, a competitive LEC seeking to charge a PICC under the rural exemption must determine whether the competing incumbent LEC charges a PICC and the amount of that PICC. Although this imposes a minimal additional burden on competitive LECs, the additional burden is outweighed by the direct benefit of additional access revenues in rural areas in prescribed circumstances.

72. Moreover, in this order, the Commission clarifies what access rate applies when more than one incumbent LEC operates within a competitive LEC's service area. The Commission agrees with competitive LECs that, without such clarification of the current rules, competitive LEC market entry will be delayed or possibly abandoned altogether because of uncertainty about rates and the prospect of IXC refusal to pay, or litigation. Eliminating the uncertainty surrounding the existing rules will benefit both competitive LECs and IXCs, including small businesses, by preventing potential billing disputes.

73. Further, in clarifying the applicable access rate in these circumstances, the Commission determined that it would permit a competitive LEC to charge an IXC a blended access rate if it does not result in revenues that exceed those the competing incumbent LECs would receive from IXCs for access to those customers. The Commission will permit a blended rate in some circumstances because it recognizes that requiring different rates for individual end-users within a service area might be particularly burdensome for small entities. Although the Commission considered specific alternative methods for determining the blended rate, it declines to specify the precise manner in which a competitive LEC must set its access rates when it serves the area of multiple incumbent LECs. Rather, the Commission requires only that the blended access rate reasonably approximate the rate that an IXC would have paid to the competing incumbent LEC for access to the competitive LEC's customers. The adopted approach balances the needs of small entities for flexibility in formulating a blended rate, yet ensures that the blended rate is just and reasonable in accordance with the Act.

74. Overall, we believe that this order best balances the competing goals that we have for our rules governing competitive LEC switched access charges. Neither in CLEC Access Reform Order nor in consideration of the petitions for reconsideration and clarification has there been any identification of additional alternatives that would have further limited the impact on all small entities while remaining consistent with Congress' pro-competitive objectives set out in the Act.

75. None.

76. The RFA requires that a regulatory flexibility analysis be prepared for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

77. In this Fifth Order on Reconsideration , the Commission clarifies some rules in ways that are not expected to have a significant economic impact on a substantial number of small entities. Specifically, in addition to the clarifications discussed in the supplemental FRFA above, the Commission clarifies the existing relationship between the CLEC new markets rule and the rural exemption. In particular, petitioners seek confirmation that new market rule does not apply if the competitive LEC would otherwise qualify for the rural exemption. The Commission agrees that this is the correct interpretation of the existing rule and amends rule section 61.26(e) to more clearly reflect the Commission's original intent. The Commission also amends rule section 61.26(e) to remove references to rate elements that have been eliminated by the Commission. Further, the Commission clarifies the source of its authority to impose interconnection obligations on IXCs under section 201(a).

78. The amendment to § 61.26(e) of the Commission rules simply clarifies and codifies the existing relationship between the CLEC new markets rule and the rural exemption, and removes references to rate elements that have since been eliminated by the Commission. Because there is no change to the meaning or impact of the existing rule, this amendment will have no significant economic impact. Similarly, the Commission's clarification concerning the source of its authority does not change the meaning or impact of the existing rule on large and small entities.

79. Therefore, we certify that these requirements will not have a significant economic impact on a substantial number of small entities.

80. In the Eighth Report and Order , the Commission declines to set a separate access rate for originating toll free (8YY) traffic and allows it to be governed by the same declining benchmark that applies to other competitive LEC interstate access traffic. In a further notice of proposed rulemaking issued with the CLEC Access Reform Order , the Commission raised questions relating to 8YY traffic originating on competitive LEC networks. The Commission sought this information because AT&T had asserted that abuses surrounding competitive LEC-originated 8YY traffic justified immediately capping the access rate for this category of traffic at the rate of the competing incumbent LEC. The Commission determines that the record does not support IXCs' claims that commission payments to 8YY generators translate effectively into incentives for the individuals who actually use those facilities to place excessive or fraudulent 8YY calls.

81. Because competitive LECs currently charge IXCs the previously established, declining benchmark rate for 8YY traffic, the Commission's decision results in no change to existing competitive LEC access charges for 8YY traffic. Thus, the Commission's decision will have no significant economic impact on competitive LECs or IXCs, large and small.

82. Therefore, we certify that these requirements will not have a significant economic impact on a substantial number of small entities.

83. In the CLEC Access Reform Order , the Commission provided an FRFA that conformed to the RFA. In this present order, the Commission denies petitions for reconsideration and a petition for waiver. Because the Commission promulgates no additional or revised final rules in response to petitions for reconsideration or the petition for waiver, our present action on these petitions is not an RFA matter.

84. This action contained herein contains no new or modified information collections subject to the Paperwork Reduction Act of 1995 (PRA), Pub. L. 104-13.

85. The Commission will send a copy of these orders, including this Supplemental FRFA and FRFCs, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of these orders, including the Supplemental FRFA and FRFCs, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of these orders and Supplemental FRFA (or summaries thereof) and FRFCs will also be published in the Federal Register .

86. Accordingly, it is ordered that, pursuant to the authority contained in sections 1-5, 201-205, 214, 218-220, 254, 303(r), 403, 405, 502 and 503 of the Communications Act of 1934, as amended, 47 U.S.C. 151-155, 201-205, 214, 218-220, 254, 303(r), 403, 405, 502 and 503, this eighth report and order and fifth order on reconsideration, with all attachments, including revisions to part 61 of the Commission's rules, 47 CFR part 61, is hereby adopted .

87. It is further ordered that these orders and rule revisions adopted in these orders shall become effective July 26, 2004.

88. It is further ordered that the Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this eighth report and order and fifth order on reconsideration , including the Supplemental Final Regulatory Flexibility Analysis and Final Regulatory Flexibility Certifications, to the Chief Counsel for Advocacy of the Small Business Administration.

89. It is further ordered that the Petitions for Reconsideration and Petitions for Clarification filed by Focal Communications Corp. and U.S. LEC Corp., Qwest Communications International, Inc., TDS Metrocom, Inc., and Time Warner Telecom are denied .

90. It is further ordered that the Petition for Clarification filed by U.S. TelePacific Corp. is denied in part and granted in part , to the extent discussed herein.

91. It is further ordered that the Petitions for Reconsideration and/or Clarification filed by the Minnesota CLEC Consortium and Rural Independent Competitive Alliance are denied in part and granted in part, to the extent discussed herein.

92. It is further ordered that the Petition of Z-Tel Communications Inc., for Temporary Waiver of Commission rule in § 61.26(d) is denied.

93. It is futher ordered that the Petition of TDS Metrocom, Inc. for Stay Pending Reconsideration is denied as moot .

94. It is further ordered that the Emergency Petition of Mpower Communications Corp. and North County Communications, Inc. for Stay of Order is denied as moot .

A. Background

Currently the NASA FAR Supplement (NFS) contains information to implement or supplement the FAR. This information contains NASA's policies, procedures, contract clauses, solicitation provisions, and forms that govern the contracting process or otherwise control the relationship between NASA and contractors or prospective contractors. The NFS also contains information that consists of internal Agency administrative procedures and guidance that does not control the relationship between NASA and contractors or prospective contractors. Regardless of the nature of the information, as a policy, NASA has submitted to the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) and published in the Federal Register all changes to the NFS. FAR 1.101 states in part that the “Federal Acquisition Regulations System consists of the Federal Acquisition Regulation (FAR), which is the primary document, and agency acquisition regulations that implement or supplement the FAR. The FAR System does not include internal agency guidance of the type described in 1.301(a)(2).” FAR 1.301(a)(2) states in part “an agency head may issue or authorize the issuance of internal agency guidance at any organizational level ( e.g. , designations and delegations of authority, assignments of responsibilities, work-flow procedures, and internal reporting requirements).” Further, FAR 1.303 states that issuances under FAR 1.301(a)(2) need not be published in the Federal Register . Based on the foregoing, NASA is not required to publish and codify internal Agency guidance.

This final rule will modify the existing practice by only publishing those regulations which may have a significant effect beyond the internal operating procedures of the Agency or have a significant cost or administrative impact on contractors or offerors.

The NFS will continue to integrate into a single document both regulations subject to public comments and internal Agency guidance and procedures that do not require public comment.

Those portions of the NFS that require public comment will continue to be amended by publishing changes in the Federal Register . NFS regulations that require public comment are issued as Chapter 18 of Title 48, CFR. Changes to portions of the regulations contained in the CFR, along with changes to internal guidance and procedures, will be incorporated into the NASA-maintained Internet version of the NFS through Procurement Notices (PNs). The single official NASA-maintained version of the NFS will remain available on the Internet. NASA personnel must comply with all regulatory and internal guidance and procedures contained in the NFS.

This change will result in savings in terms of the number of rules subject to publication in the Federal Register and provide greater responsiveness to internal administrative changes.

NASA published a proposed rule in the Federal Register on March 12, 2004 (69 FR 11828). No comments were received in response to the proposed rule. Therefore, the proposed rule is being converted to a final rule without change.

NASA certifies that this final rule does not have a significant economic impact on a substantial number of small entities with the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601. et seq. , because this final rule only removes from the CFR information that is considered internal Agency administrative procedures and guidance. The information removed from the CFR will continue to be made available to the public via the Internet.

The Paperwork Reduction Act does not apply because the changes do not impose recordkeeping or information collection requirements which require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

A. Background

Currently the NASA FAR Supplement (NFS) contains information to implement or supplement the FAR. This information contains NASA's policies, procedures, contract clauses, solicitation provisions, and forms that govern the contracting process or otherwise control the relationship between NASA and contractors or prospective contractors. The NFS also contains information that consists of internal Agency administrative procedures and guidance that does not control the relationship between NASA and contractors or prospective contractors. Regardless of the nature of the information, as a policy, NASA has submitted to the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) and published in the Federal Register all changes to the NFS. FAR 1.101 states in part that the “Federal Acquisition Regulations System consists of the Federal Acquisition Regulation (FAR), which is the primary document, and agency acquisition regulations that implement or supplement the FAR. The FAR System does not include internal agency guidance of the type described in 1.301(a)(2).” FAR 1.301(a)(2) states in part “an agency head may issue or authorize the issuance of internal agency guidance at any organizational level ( e.g. , designations and delegations of authority, assignments of responsibilities, work-flow procedures, and internal reporting requirements).” Further, FAR 1.303 states that issuances under FAR 1.301(a)(2) need not be published in the Federal Register . Based on the foregoing, NASA is not required to publish and codify internal Agency guidance.

This final rule modifies the existing practice by only publishing those regulations which may have a significant effect beyond the internal operating procedures of the Agency or have a significant cost or administrative impact on contractors or offerors.

The NFS will continue to integrate into a single document both regulations subject to public comments and internal Agency guidance and procedures that do not require public comment. Those portions of the NFS that require public comment will continue to be amended by publishing changes in the Federal Register . NFS regulations that require public comment are issued as Chapter 18 of Title 48, CFR. Changes to portions of the regulations contained in the CFR, along with changes to internal guidance and procedures, will be incorporated into the NASA-maintained Internet version of the NFS through Procurement Notices (PNs). The single official NASA-maintained version of the NFS will remain available on the Internet. NASA personnel must comply with all regulatory and internal guidance and procedures contained in the NFS.

This change will result in savings in terms of the number of rules subject to publication in the Federal Register and provide greater responsiveness to internal administrative changes. NASA published a proposed rule in the Federal Register on March 31, 2004 (69 FR 16886). No comments were received in response to the proposed rule. Therefore, the proposed rule is being converted to a final rule without change.

NASA certifies that this final rule does not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because this final rule only removes from the CFR information that is considered internal Agency administrative procedures and guidance. The information removed from the CFR will continue to be made available to the public via the Internet.

The Paperwork Reduction Act does not apply because the changes do not impose recordkeeping or information collection requirements which require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.