Regulation CC establishes the maximum period a depositary bank may wait between receiving a deposit and making the deposited funds available for withdrawal. 1 A depositary bank generally must provide faster availability for funds deposited by a “local check” than by a “nonlocal check.” A check drawn on a bank is considered local if it is payable by or at a bank located in the same Federal Reserve check processing region as the depositary bank. A check drawn on a nonbank is considered local if it is payable through a bank located in the same Federal Reserve check processing region as the depositary bank. Checks that do not meet the requirements for “local” checks are considered “nonlocal.”

Appendix A to Regulation CC contains a routing number guide that assists banks in identifying local and nonlocal banks and thereby determining the maximum permissible hold periods for most deposited checks. The appendix includes a list of each Federal Reserve check processing office and the first four digits of the routing number, known as the Federal Reserve routing symbol, of each bank that is served by that office for check processing purposes. Banks whose Federal Reserve routing symbols are grouped under the same office are in the same check processing region and thus are local to one another.

As explained in detail in the Board's final rule published in the Federal Register on May 28, 2003, the Federal Reserve Banks decided in early 2003 to reduce the number of locations at which they process checks. 2 As part of this restructuring process, the Columbia office of the Federal Reserve Bank of Richmond will cease processing checks on August 28, 2004, and banks with routing symbols currently assigned to that office for check processing purposes will be reassigned to that Reserve Bank's Charlotte office. The Louisville office of the Federal Reserve Bank of St. Louis will also cease processing checks on August 28, 2004, and banks with routing symbols currently assigned to that office for check processing purposes will be reassigned to the Cincinnati office of the Federal Reserve Bank of Cleveland. As a result of these changes, some checks that are drawn on and deposited at banks located in the affected check processing regions and that currently are nonlocal checks will become local checks subject to faster availability schedules. The Cincinnati office will serve banks located in the Fourth and Fifth Federal Reserve Districts as of June 26, 2004, when banks currently assigned to the Charleston office are reassigned to the Cincinnati office. 3 The Cincinnati office also will serve banks located in the Eighth Federal Reserve District as of August 28, 2004, when banks currently assigned to the Louisville office are reassigned to the Cincinnati office. After these changes take effect, banks located in the Cincinnati check processing region no longer will be able to determine that a check is nonlocal solely because the paying bank for that check is located in another Federal Reserve District.

To assist banks in identifying local and nonlocal banks, the Board accordingly is amending the lists of routing symbols associated with the Federal Reserve Banks of Cleveland, Richmond, and St. Louis to reflect the transfer of operations (1) from the Richmond Reserve Bank's Columbia office to that Reserve Bank's Charlotte office and (2) from the St. Louis Reserve Bank's Louisville office to the Cleveland Reserve Bank's Cincinnati office. To coincide with the effective date of the underlying check processing changes, the amendments are effective August 28, 2004. The Board is providing advance notice of these amendments to give affected banks ample time to make any needed processing changes. The advance notice will also enable affected banks to amend their availability schedules and related disclosures, if necessary, and provide their customers with notice of these changes. 4 The Federal Reserve routing symbols assigned to all other Federal Reserve branches and offices will remain the same at this time. The Board of Governors, however, intends to issue similar notices at least 60 days prior to the elimination of check operations at some other Reserve Bank offices, as described in the May 2003 Federal Register document.

The Board has not followed the provisions of 5 U.S.C. 553(b) relating to notice and public participation in connection with the adoption of this final rule. The revisions to the appendix are technical in nature, and the routing symbol revisions are required by the statutory and regulatory definitions of “check-processing region.” Because there is no substantive change on which to seek public input, the Board has determined that the § 553(b) notice and comment procedures are unnecessary.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR 1320 Appendix A.1), the Board has reviewed the final rule under authority delegated to the Board by the Office of Management and Budget. This technical amendment to appendix A of Regulation CC will (1) delete the reference to the Columbia office of the Federal Reserve Bank of Richmond and reassign the routing symbols listed under that office to that Reserve Bank's Charlotte office and (2) delete the reference to the Louisville office of the Federal Reserve Bank of St. Louis and reassign the routing symbols listed under that office to the Cincinnati office of the Federal Reserve Bank of Cleveland. The depository institutions that are located in the affected check processing regions and that include the routing numbers in their disclosure statements would be required to notify customers of the resulting change in availability under § 229.18(e). However, because all paperwork collection procedures associated with Regulation CC already are in place, the Board anticipates that no additional burden will be imposed as a result of this rulemaking.

A proposal to amend 14 CFR part 39 to include an AD for the specified model helicopters was published in the Federal Register on February 10, 2004 (69 FR 6214). That action proposed to require inspecting the vertical fin skin paneling to determine if it was manufactured with the correct wall thickness.

The Luftfahrt-Bundesamt (LBA), the airworthiness authority for the Federal Republic of Germany, notified the FAA that an unsafe condition may exist on ECD Model MBB-BK117 helicopters, Model A-1 up to B-2, serial number (S/N) all, and Model C-1, S/N 7500 up to 7545. The LBA advises that during tail boom production, metal sheeting of 0.6-millimeter (mm) thickness was found instead of the specified 0.8-mm thickness for the skin paneling of several tail booms.

ECD has issued Alert Service Bulletin No. ASB-MBB-BK117-30-109, Revision 1, dated July 3, 2003, which specifies measuring the wall thickness of the skin paneling of the vertical fin to determine the thickness. The LBA classified this service bulletin as mandatory and issued AD No. 2003-219, dated August 21, 2003, to ensure the continued airworthiness of these helicopters in the Federal Republic of Germany.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on 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 this AD will affect 132 helicopters of U.S. registry. The required actions will take about 1 hour per helicopter to do at an average labor rate of $65 per work hour. Based on these figures, we estimate the total cost impact of the AD on U.S. operators to be $8580 assuming no vertical fins will need to be replaced.

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 is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas.

The FAA proposed to amend 14 CFR part 39 with a proposed airworthiness directive (AD). The proposed AD applies to RR RB211 Trent 875-17, Trent 877-17, Trent 884-17, Trent 892-17, Trent 892B-17, and Trent 895-17 series turbofan engines. We published the proposed AD in the Federal Register on January 27, 2003 (68 FR 3836). That action proposed to require initial and repetitive visual inspections for load-bearing spline flank wear of the IP compressor rear stubshaft and IP turbine shaft, and replacement of these shafts if necessary.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments received.

Three commenters request that we incorporate the intent of the latest issue of RR Mandatory Service Bulletin (MSB) No. RB.211-72-D339, Revision 1, dated March 28, 2003. The commenters ask that they be allowed to use an alternate ultrasonic inspection of the IP compressor-IP turbine shaft spline wear with a reduced repeat inspection time interval, introduced by the revised MSB.

We agree. We have reviewed the latest revision of RR MSB No. RB.211-72-D339, Revision 2, dated June 20, 2003, with RR and the Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom (U.K.), and we have approved the alternate ultrasonic inspection in this AD. Also, because that MSB adds the Trent 884B-17 engine to the applicability, we have added that engine to this AD applicability. We have concluded that since the proposal already applies to the Trent 884-17, adding the Trent 884B-17 engine would not require us to issue a supplemental notice of proposed rulemaking. Currently, there are no Trent 884B-17 engines installed on airplanes of U.S. registry.

One commenter requests that we change compliance intervals from cycles accumulated on the engine, to cycles accumulated on the component. The commenter states that components are sometimes switched between engines, making cycle counting difficult.

We agree. Cycle counting on the component is a more precise way to set the inspection intervals and is introduced in this proposal. Also, this AD corrects an error in the NPRM where the initial inspection interval was 4,500 cycles from the effective date of the AD, and should have been 4,500 cycles-since-new (CSN).

We have added an initial inspection drawdown of 100 cycles for engines that have not had an initial inspection, but are over the initial inspection threshold. We are not aware of any engines over the initial threshold and that have not had the initial inspection.

We have clarified the wording in the engine applicability, to state that the AD applies to engines that have not incorporated RR SB No. RB.211-72-D495, dated February 7, 2003. That SB incorporates a modification for positive lubrication of the IP compressor rear stubshaft and IP turbine shaft.

We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD. The assigned paragraph letters in the regulatory section have been changed from what appeared in the proposal, as we are continuing our introduction of plain language into our documents.

There are about 350 RR RB211 Trent 875-17, Trent 877-17, Trent 884-17, Trent 892-17, Trent 892B-17, and Trent 895-17 series turbofan engines of the affected design in the worldwide fleet. We estimate that 90 engines installed on airplanes of U.S. registry would be affected by this AD. We also estimate that it would take about 0.5 work hours per engine to perform the proposed inspections, and that the average labor rate is $65 per work hour. Based on these figures, we estimate the total cost to U.S. operators for performing one inspection to be $2,925.

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 this AD:

(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.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “AD Docket No. 2002-NE-19-AD” in your request.

A proposal to amend 14 CFR part 39 by revising AD 2001-24-07, Amendment 39-12523 (66 FR 60144, December 3, 2001), for the specified Agusta helicopters, was published in the Federal Register on January 27, 2004 (69 FR 3859). The action proposed to correct a P/N that was stated incorrectly in the previous AD, and to require:

• A tap inspection of the upper and lower sides of the tip cap for bonding separation and in the tip cap to blade bond area;

• A visual inspection of the upper and lower side of the blade tip cap for swelling or deformation; and

• A dye-penetrant inspection of the tip cap leading edge along the welded joint line of the upper and lower tip cap skin shells for a crack.

AD 2001-24-07 superseded AD 98-19-04, Amendment 39-11039 (64 FR 7494, February 16, 1999), Docket No. 98-SW-40-AD. AD 98-19-04 required inspecting between the metal shells and honeycomb core for bonding separation, visually inspecting the blade tip for swelling or deformation, and visually inspecting the welded bead along the leading edge of the blade tip cap for a crack. AD 2001-24-07 retained those requirements, and added a requirement for a tap inspection of the tip cap for bonding separation in the blade bond area, and a dye-penetrant inspection of the tip cap leading edge along the welded joint line of the upper and lower tip cap skin shells for a crack. Installing a tip cap, P/N 709-0103-29-109, on an affected blade is a terminating action for the requirements of the existing AD for that blade.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on 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 this AD will affect 44 helicopters of U.S. registry, and the actions will take approximately 6 work hours per helicopter to accomplish the initial and repetitive inspection at an average labor rate of $65 per work hour. Based on these figures, we estimate the total cost impact of the AD on U.S. operators to be $17,160, assuming that no blade will need to be replaced as a result of these inspections.

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.

Boehringer Ingelheim Vetmedica, Inc., 2621 North Belt Highway, St. Joseph, MO 64506-2002, filed NADA 141-228 for the veterinary prescription use of BUSCOPAN (N-butylscopolammonium bromide) Injectable Solution by intravenous injection for the control of abdominal pain (colic) associated with spasmodic colic, flatulent colic, and simple impactions in horses. The NADA is approved as of May 3, 2004, and 21 CFR part 522 is amended by adding § 522.275 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

Under section 512(c)(2)(F)(i) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(i)), this approval qualifies for 5 years of marketing exclusivity beginning May 3, 2004.

The agency has determined under 21 CFR 25.33(d)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

On July 7, 2003, the IRS published temporary regulations (TD 9069) in the Federal Register (68 FR 40129) containing amendments to 26 CFR part 1 under section 280F of the Internal Revenue Code of 1986 (Code), including the addition of § 1.280F-6T(c)(3)(iii). On the same date, the IRS published proposed regulations (REG-138495-02) in the Federal Register (68 FR 40224) inviting comments under section 280F and inviting requests to hold a public hearing. Several comments were received, but no requests to hold a public hearing. After consideration of all the comments, the rules in TD 9069 and the proposed regulations are made retroactive for taxpayers that choose to apply the rules to property placed in service before the proposed effective date and are adopted as final regulations. In addition, a conforming amendment is made to § 1.280F-6T, and § 1.280F-6T is redesignated as § 1.280F-6.

Section 280F(a) of the Code imposes annual dollar limits on the depreciation deduction allowable with respect to passenger automobiles. TD 9069 and the proposed regulations provide that a truck or van is not subject to these limits if it is a qualified nonpersonal use vehicle as defined in § 1.274-5T(k). This rule applies to vehicles placed in service on or after July 7, 2003.

Commentators suggested that the rule announced by TD 9069 and the proposed regulations be made available retroactively to owners of qualified nonpersonal use vehicles placed in service during the period beginning January 1, 2003, and ending July 6, 2003, and that taxpayers who have filed fiscal-year returns be allowed to amend those returns to claim additional deductions for such vehicles. Commentators have also requested that we give some measure of audit protection to taxpayers who placed qualified nonpersonal use vehicles in service prior to 2003 and depreciated the vehicles in a manner consistent with TD 9069 and the proposed regulations. We have amended the effective date provision to allow taxpayers to use the exclusion for qualified nonpersonal use vehicles for vehicles placed in service prior to July 7, 2003, and to permit taxpayers either to amend tax returns for open taxable years, or to treat the change as a change in method of accounting by filing a Form 3115, “Application for Change in Accounting Method”.

Comments received from the funeral services industry requested amendments to the definition of qualified nonpersonal use vehicles in the temporary regulations under section 274 to clarify that certain vehicles used in the funeral services industry are qualified nonpersonal use vehicles for purposes of the substantiation requirements under that section. We believe that such an amendment is beyond the scope of these regulations, which are specific to section 280F(a).

Another commentator indicated that the relief afforded by TD 9069 and the proposed regulations is too narrow, and requested that we amend the regulations to establish a use-based test that would exclude more trucks and vans from section 280F(a). The comment suggested a test that would exclude all trucks and vans for which the taxpayer could demonstrate a specific business need, and which are used for a valid business purpose. We believe that the proposed test is inherently subjective and would cause administrative difficulty of the type that the proposed regulations were designed to avoid. We continue to encourage suggestions for objective use-based tests that could serve as the basis for future guidance.

We were asked by the Office of Advocacy of the U.S. Small Business Administration (Advocacy) to perform a regulatory flexibility analysis because Advocacy believes that TD 9069 and the proposed regulations constitute a legislative rule as defined in the Regulatory Flexibility Act. A Regulatory Flexibility Act (RFA) analysis must be performed for legislative rules having a significant impact on small business, but not for interpretive rules or for legislative rules with no significant impact on small businesses. It is the position of the IRS and Treasury that TD 9069 and the proposed regulations constitute an interpretive rule for which no regulatory flexibility analysis is necessary. In any event, the rule proposed in the regulations is in all cases beneficial to taxpayers and does not have a significant impact on small business for purposes of the Regulatory Flexibility Act.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of these regulations is Bernard P. Harvey, Office of Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and Treasury Department participated in their development.

In the August 20, 2003, issue of the Federal Register (68 FR 50108) the Corps issued a proposal to amend 33 CFR 326.6(a)(1) to increase its Class I administrative penalties under section 309(g) of the Clean Water Act and section 205(e) of the National Fishing Enhancement Act to account for inflation. Under section 309(g) of the Clean Water Act, Class I civil penalties can be assessed for violations of the conditions and limitations of permits issued under section 404 of the Clean Water Act. Under section 205(e) of the National Fishing Enhancement Act, Class I civil penalties can be assessed for violations of permits issued under section 10 of the Rivers and Harbors Act of 1899 and/or section 404 of the Clean Water Act for the construction and management of artificial reefs.

According to section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended, each Federal agency is required to adjust for inflation the maximum civil monetary penalties that can be imposed pursuant to that agency's statutory authorities. Under section 6 of the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended, the initial adjustment is limited to 10 percent of the civil penalty amount. Since we had not made any inflation adjustments for the Class I civil penalties since 33 CFR 326.6 was promulgated in 1989, we are limited to a 10 percent increase for these civil penalties. Therefore, we proposed to increase the Class I civil penalty for violations of the conditions and limitations of Clean Water Act section 404 permits, so that it may not exceed $11,000 per violation, with a $27,500 maximum penalty. We also proposed to increase the Class I civil penalty for violations of permits for the construction and management of artificial reefs under section 205 of the National Fishing Enhancement Act of 1984 so that it may not exceed $11,000 per violation.

In response to the August 20, 2003, proposal, we received no comments. Therefore, we are amending 33 CFR 326.6 as indicated below.

In compliance with the principles in the President's Memorandum of June 1, 1998, regarding plain language, this preamble is written using plain language. The use of “we” in this notice refers to the Corps and the use of “you” refers to the reader. We have also used the active voice, short sentences, and common everyday terms except for necessary technical terms.

This action does not impose any new information collection burden under the provisions of the Paperwork Production Act, 44 U.S.C. 3501 et seq. This final rule adjusts our civil penalty amounts to comply with the requirements of the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended. Therefore, this action is not subject to the Paperwork Reduction Act.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. For the Corps regulatory program under section 10 of the Rivers and Harbors Act of 1899, section 404 of the Clean Water Act, and section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, the current OMB approval number for information requirements is maintained by the Corps of Engineers (OMB approval number 0710-0003, which expires on December 31, 2004).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Corps must determine whether the regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Pursuant to the terms of Executive Order 12866, we have determined that this final rule is not a “significant regulatory action” because it does not meet any of these four criteria. This final rule adjusts the Class I civil penalty amounts for violations of permit conditions and limitations for activities that involve discharges of dredged or fill material into waters of the United States and/or the construction and management of artificial reefs in navigable waters.

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

This final rule does not have Federalism implications. We do not believe that adjusting our Class I civil penalties to account for inflation will have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. This final rule does not impose new substantive requirements. In addition, this final rule will not impose any additional substantive obligations on State or local governments since it is applicable only to permittees who violate the conditions and limitations of certain Corps permits. Therefore, Executive Order 13132 does not apply to this final rule.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions.

For purposes of assessing the impacts of this final rule on small entities, a small entity is defined as : (1) A small business based on Small Business Administration size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of the final rule on small entities, we believe that this action will not have a significant economic impact on a substantial number of small entities. The Corps regulations at 33 CFR 326.6 had set the Class I civil penalties under section 309(g)(2)(A) at no more than $10,000 per violation, with a maximum of $25,000. The Class I civil penalties under section 205 of the National Fishing Enhancement Act could have been up to $10,000 per violation. The final rule increases those Class I civil penalties by 10 percent, in accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended. The final rule is consistent with current agency practice, does not impose new substantive requirements, and therefore would not have a significant economic impact on a substantial number of small entities.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, the agencies generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires the agencies to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the Corps to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted. Before the Corps establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, they must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

We have determined that this final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. Previously, in 33 CFR 326.6, the Class I civil penalties under section 309(g)(2)(A) of the Clean Water Act could not exceed $10,000 per violation, with a $25,000 maximum. A Class I civil penalty under section 205(e) of the National Fishing Enhancement Act could not exceed $10,000 for each violation. This final rule adjusts those civil penalties, through 10 percent increases to account for inflation, as required by the Federal Civil Penalties Adjustment Act of 1990, as amended. Under this final rule, the Class I civil penalties under section 309(g)(2)(A) of the Clean Water Act cannot exceed $11,000 per violation, with a $27,500 maximum. Under this final rule, a Class I civil penalty under section 205(e) of the National Fishing Enhancement Act cannot exceed $11,000 for each violation. This final rule is consistent with current agency practice, does not impose new substantive requirements and therefore does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. Therefore, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA. For the same reasons, we have determined that this final rule contains no regulatory requirements that might significantly or uniquely affect small governments. Therefore, this final rule is not subject to the requirements of section 203 of UMRA.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Pub. L. 104-113, section 12(d) (15 U.S.C. 272 note) directs us to use voluntary consensus standards in our regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

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

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the final rule on children, and explain why the regulation is preferable to other potentially effective and reasonably feasible alternatives.

This final rule is not subject to this Executive Order because it is not economically significant as defined in Executive Order 12866. In addition, it does not concern an environmental or safety risk that we have reason to believe may have a disproportionate effect on children.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires agencies to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The phrase “policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. This final rule adjusts the civil penalties in 33 CFR 326.6 through 10 percent increases to account for inflation, as required by the Federal Civil Penalties Adjustment Act of 1990, as amended. It is generally consistent with current agency practice and does not impose new substantive requirements. Therefore, Executive Order 13175 does not apply to this final rule.

The Corps prepares appropriate environmental documentation, including Environmental Impact Statements when required, for all permit decisions. Therefore, environmental documentation under the National Environmental Policy Act is not required for this final rule. This final rule only revises our Class I civil penalties to account for inflation, as required by the Federal Civil Penalties Adjustment Act of 1990, as amended. Appropriate environmental documentation has been, or will be, prepared for each permit action that is subject to the Class I administrative penalty process.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as amended 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. We will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule cannot take effect until 60 days after it is published in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each Federal agency must make achieving environmental justice part of its mission. Executive Order 12898 provides that each Federal agency conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin.

This final rule is not expected to negatively impact any community, and therefore is not expected to cause any disproportionately high and adverse impacts to minority or low-income communities. This final rule relates solely to the adjustments to Class I civil penalties under section 309(g)(2)(A) of the Clean Water Act and section 205(e) of the National Fishing Enhancement Act to account for inflation.

This final rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This final rule relates only to the adjustments to Class I civil penalties under section 309(g)(2)(A) of the Clean Water Act and section 205(e) of the National Fishing Enhancement Act to account for inflation. This final rule is consistent with current agency practice, does not impose new substantive requirements, and therefore will not have a significant adverse effect on the supply, distribution, or use of energy.

Pursuant to its authorities in Section 7 of the River and Harbor Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and Chapter XIX, of the Army Appropriations Act of 1919 (40 Stat.892; 33 U.S.C. 3) the Corps is amending the restricted area regulations in 33 CFR Part 334 by adding Section 334.82 which establishes a restricted area in the navigable waters immediate adjacent to Coasters Harbor Island and enclosing the island and mainland shoreline of Naval Station Newport from Coddington Point south to the Naval Hospital on the eastern side of the East Passage of Narragansett Bay in Newport, Rhode Island. By establishment of the restricted area the Navy can better protect the Naval War College and vessels and personnel stationed at the facility and the general public. The regulations will allow the Navy to keep persons and vessels out of the area at all times, except with the permission of the Commanding Officer Naval Station Newport, USN Newport, Rhode Island or his/her authorized representative.

This rule is issued with respect to a military function of the Defense Department and the provisions of Executive Order 12866 do not apply.

This rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354) which requires the preparation of a regulatory flexibility analysis for any regulation that will have a significant economic impact on a substantial number of small entities ( i.e. , small businesses and small governments). The Corps expects that the economic impact of this new restricted area would have practically no impact on the public, no anticipated navigational hazard or interference with existing waterway traffic and accordingly, certifies that this proposal will have no significant economic impact on small entities.

The New England District has prepared an Environmental Assessment (EA) for this action. The District has concluded, based on the minor nature of the additional restricted area, that this action will not have a significant impact to the quality of the human environment, and preparation of an Environmental Impact Statement (EIS) is not required. The EA may be reviewed at the New England District office listed at the end of FOR FURTHER INFORMATION CONTACT , above.

This rule does not impose an enforceable duty among the private sector and, therefore, is not a Federal private sector mandate and is not subject to the requirements of Section 202 or 205 of the Unfunded Mandates Act. We have also found under Section 203 of the Act, that small Governments will not be significantly and uniquely affected by this rulemaking.

Pursuant to section 801(a)(1)(A) of the Administrative Procedure Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, the Army has submitted a report containing this Rule to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the General Accounting Office. This Rule is not a major Rule within the meaning of Section 804(2) of the Administrative Procedure Act, as amended.

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

Lake Roosevelt National Recreation Area was established in eastern Washington State in 1946 following the Secretary of the Interior's approval of a Tri-Party Agreement among the National Park Service, the Bureau of Reclamation, and the Bureau of Indian Affairs. The reservoir and related lands were administered as the recreation area under this agreement until 1974 when Interior Secretary Rogers C.B. Morton directed that the agreement for the management of the lake be expanded to include the Confederated Tribes of the Colville Reservation and the Spokane Tribe of Indians. Secretary Morton's directive was prompted by the Interior Solicitor's opinion that the tribes have exclusive rights to hunting, boating, and fishing within those areas of the reservoir that are within the boundaries of the two Indian reservations. An accord was reached on April 5, 1990, when the Secretary of the Interior approved the Lake Roosevelt Cooperative Management Agreement. The agreement confirmed and established management authority of the two Indian tribes over the portions of Lake Roosevelt and related lands within the boundaries of their respective reservations that were previously administered as part of the national recreation area. In 1997, the name of the park was changed from Coulee Dam National Recreation Area to Lake Roosevelt National Recreation Area.

In the Lake Roosevelt Cooperative Management Agreement, Lake Roosevelt National Recreation Area is defined as the waters and lands managed by the National Park Service. Lake Roosevelt National Recreation Area consists of 312 miles of shoreline along the Columbia River. The National Park Service administers 47,438 acres of the 81,389-acre water surface (at full pool), and 12,936 acres of adjacent land. The lands of Lake Roosevelt National Recreation Area consist primarily of a narrow band of shore above the maximum high water mark (1,290 feet), which was originally purchased by the Bureau of Reclamation for construction of the reservoir. The national recreation area also includes shoreline along about 29 miles of the Spokane River Arm of the lake and about 7 miles along the Kettle River Arm. Most of the remainder of the shoreline and surface area of Lake Roosevelt lies within the reservation boundaries of the Spokane Tribe and the Colville Confederated Tribes and is not part of the national recreation area. The Bureau of Reclamation retains the management of the dam, an area immediately around the dam, and a few other locations that are necessary for operating the reservoir.

The NPS at Lake Roosevelt preserves and protects a rich cultural history throughout the park. Nine thousand years of human use of the area is evident throughout the park through a variety of archeological resources. Historical features such as St. Paul's Mission and Fort Spokane attest to a more recent history. The natural features around the lake tell the story of the Ice Age Floods that shaped this landscape about 13,000 years ago. The recreation area is home to many species of wildlife and fish, including bald eagles, peregrine falcons, black bear, kokanee salmon and walleye. Ponderosa Pine and Douglas Fir are plentiful. Popular types of recreation include fishing, swimming, boating, water skiing, picnicking, and camping from vessels and vehicles.

The purpose and significance statements below are from Lake Roosevelt's Strategic Plan (NPS 2000) and General Management Plan (NPS 2000). Lake Roosevelt National Recreation Area was established for the following purposes:

(1) To provide opportunities for diverse, safe, quality, outdoor recreational experiences for the public.

(2) To preserve, conserve, and protect the integrity of natural, cultural, and scenic resources.

(3) To provide opportunities to enhance public appreciation and understanding about the area's significant resources. The Recreation Area has no specific enabling legislation and was created under an act passed in 1946 authorizing the administration of the areas by the NPS for recreational use pursuant to cooperative agreements. [Act of August 7, 1946, 16 U.S.C. 17j-2(b)].

The following statements summarize the significance of Lake Roosevelt National Recreation Area:

(1) It offers a wide variety of recreation opportunities in a diverse natural setting on a 154-mile-long lake that is bordered by 312 miles of publicly owned shoreline that is available for public use.

(2) It contains a large section of the upper Columbia River and a record of continuous human occupation dating back more than 9,000 years.

(3) It is contained within three distinct geologic provinces—the Okanogan Highlands, the Columbia Plateau, and the Kootenay Arc, which were sculpted by Ice Age floods.

The park's mission statement is as follows: As a unit of the national park system, Lake Roosevelt National Recreation Area is dedicated to conserving unimpaired, the natural and cultural resources and recreational and scenic values of Lake Roosevelt for the enjoyment, education, and inspiration of this and future generations. The recreation area also shares responsibility for advancing a great variety of programs designed to help extend the benefits of natural and cultural resource conservation and outdoor recreation.

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

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

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

A variety of watercraft can be found on Lake Roosevelt during the summer season, e.g. , ski boats, PWC, runabouts, day cruisers, sailboats (some with auxiliary motors), houseboats, and, to a lesser degree, canoes, kayaks, and rowboats. Activities on the lake associated with boating include sightseeing, water skiing, fishing, swimming, camping, picnicking, and sailing. The park estimates that there were over 50,000 boat launches during the 2001 primary boating season based on the launch fees counted at the park. Most boaters reside within 100 miles of Lake Roosevelt but others come from cities and communities throughout Washington, as well as from Idaho, Oregon and Canada. PWC use is estimated at approximately 56 PWC users on a peak use summer day in 2002, increasing to an average of 62 PWC users per peak use day by 2012.

PWC use began on Lake Roosevelt during the 1980s but did not become fairly common until the mid-1990s. PWC are often used as a houseboat accessory. Activities undertaken by PWC on Lake Roosevelt include running up and down sections of the lake, towing skiers, jumping wakes, and general boating activities. Surveys of boat trailers conducted in 2001 and 2002 estimate the number of PWC to be approximately 4% of all boating use at Lake Roosevelt. PWC are allowed to launch, operate, and beach from dawn to dusk throughout the national recreation area. The primary PWC use season is June through September with some use from April through May and October through December, but no use in winter months because the weather and water is generally too cold.

In the past, PWC were regulated as vessels under the Superintendent's Compendium and, along with other vessels, were allowed in all areas of the lake. The Superintendent's Compendium is terminology the NPS uses to describe the authority provided to the Superintendent under 36 CFR 1.5 and 1.7. It allows for local, park-specific regulations for a variety of issues and under specific criteria. Before the closure, areas 100 feet around swim beaches, marinas, and narrow sections of the lake had speed or “flat-wake” restrictions applicable to all vessels, based on Washington State boating regulations. In addition, before the closure, flat-wake zones on the lake included Hawk Creek from the waterfall at the campground to an area called “the narrows” and on the Kettle River above the Napoleon Bridge. Crescent Bay Lake, located near Lake Roosevelt but not a connected waterway, was closed to all motorized craft. In flat-wake zones vessels and PWC could not exceed flat-wake speed, which is defined as a minimal disturbance of the water by a vessel in order to prevent damage or injury.

None of the concessioners at Lake Roosevelt currently rent PWC. Within 60 to 100 miles of the park, a total of five PWC dealerships were identified in Wenatchee, Spokane, and Okanogan. No PWC dealerships were identified closer to the park. A total of three rental shops were found within 30 miles of the park including Banks Lake, Sun Lake, and Blue Lake.

Within 100 miles of Lake Roosevelt National Recreation Area there are several major lakes and many smaller lakes that allow PWC. The larger lakes include Banks Lake and Lake Chelan in Washington and Lake Coeur d'Alene and Lake Pend Oreille in Idaho.

Some research suggests that some segments of the public view PWC as a “nuisance” due to their noise, speed, and overall effects on the environment, while others view PWC as no different from other watercraft and believe PWC users have a “right” to enjoy their sport. There has been some conflict between PWC and fishermen, canoeists, and swimmers at Lake Roosevelt.

A total of only eight safety incidents involving PWC were reported on Lake Roosevelt during the years 1997 through 2002.

On February 6, 2004, the National Park Service published a Notice of Proposed Rulemaking (NPRM) for the operation of PWC at Lake Roosevelt National Recreation Area (69 FR 5799). The proposed rule for PWC use was based on alternative B in the Environmental Assessment (EA) prepared by NPS for Lake Roosevelt. The EA was available for public review and comment from April 28 to May 28, 2003, and the NPRM was available for public comment from February 6 to April 6, 2004.

The purpose of the environmental assessment was to evaluate a range of alternatives and strategies for the management of PWC use at Lake Roosevelt to ensure the protection of park resources and values while offering recreational opportunities. The analysis assumed alternatives would be implemented beginning in 2002 and considered a 10-year use period, from 2002 to 2012. In addition, the analysis assumed that PWC annual use will increase approximately 1% annually. Also, the analysis assumed that, due to the narrow and linear characteristics of the reservoir, each PWC that launches will recreate on waters managed by both NPS and tribal entities during an average trip, regardless of launch point. The NPS assumes no jurisdiction over tribal waters and generally does not enforce regulations in those areas; however, because of existing Memorandums of Understanding with the tribes the park may respond to law enforcement or emergency situations on tribal waters.

The EA evaluated three alternatives concerning the use of PWC at Lake Roosevelt National Recreation Area. Alternative A allows PWC use under a special NPS regulation in accordance with NPS Management Policies 2001, park practices, and state regulations. That is, after the effective date of a final rule, PWC use would be the same as it was before the closure on November 7, 2002. Therefore, under Alternative A, PWC use would be allowed throughout the recreation area, with limitations only in areas where restrictions existed before the closure. These areas include the following: Crescent Bay Lake (motorized watercraft restricted), Upper Kettle River, above the Napoleon Bridge (flat wake), and Upper Hawk Creek from the waterfall near the campground through the area known as the “narrows” (flat wake). Launch and retrieval of PWC would continue to be permitted only at designated boat launch ramps within Lake Roosevelt National Recreation Area. PWC users would be able to land anywhere along the shoreline, except in designated swimming areas. All nonconflicting State and Federal watercraft laws and regulations would continue to be enforced.

As with Alternative A, Alternative B reinstates PWC use under a special regulation, but specific limits and use areas would be defined. However, based on comments received from the public during the EA scoping process and through the comment period for the EA, the NPRM proposed to implement Alternative B with one modification; the Kettle River would be closed to PWC above the Hedlund Bridge. Under Alternative B, PWC use would be reinstated within Lake Roosevelt in most locations of the recreation area where it was allowed prior to November 7, 2002 with some new restrictions. Under this alternative, the current flat-wake zone in Hawk Creek and the restriction on motorized watercraft use on Crescent Bay Lake would remain. In addition, extra flat-wake speed zoning would be implemented. These flat-wake restrictions would apply to the following areas: Within 200 feet from launch ramps, marina facilities, campgrounds, beaches occupied by swimmers, water skiers and other persons in the water and the Spokane Arm from 200 feet west of the Two Rivers Marina on the downstream end, to 200 feet east of the Fort Spokane launch ramp on the upstream end, above the vehicle bridge. In addition to the extra flat-wake zones, PWC use would be prohibited on the Kettle River from Hedlund Bridge, north to the headwaters. Except for Napoleon Bridge launch on the Kettle River where PWC launching would be prohibited, launch and retrieval of PWC would be permitted only at designated boat launch ramps within Lake Roosevelt National Recreation Area. As with Alternative A, PWC users would be able to land anywhere along the shoreline, except in designated swimming areas and all state and federal watercraft laws and regulations would continue to be enforced. The no-action alternative, would continue the current closure on PWC use within this national park system unit.

As stated in the NPRM, based on the environmental analysis prepared for PWC use at Lake Roosevelt National Recreation Area, Alternative B is the preferred alternative and is also considered the environmentally preferred alternative because it best fulfills park responsibilities as trustee of this sensitive habitat; ensuring safe, healthful, productive, and aesthetically and culturally pleasing surroundings; and attaining a wider range of beneficial uses of the environment without degradation, risk of health or safety, or other undesirable and unintended consequences.

The proposed rule was published for public comment on February 6, 2004 (69 FR 5799), with the comment period lasting until April 6, 2004. The National Park Service received 19 timely written responses regarding the proposed regulation. All of the responses were separate letters. Of the 19 separate letters, 14 were from individuals, 4 from organizations, and 1 from a public agency. Within the following discussion, the term “commenter” refers to an individual, organization, or public agency that responded. The term “comments” refers to statements made by a commenter.

1. Several commenters stated that the analysis and restrictions should include all motorized watercraft and not be limited to only PWC.

NPS Response: The EA was not designed to determine if personal watercraft caused more environmental damage to park resources than other vessels, but rather to determine if personal watercraft use was consistent with the park's purposes and management goals and objectives. An analysis was done on the management of personal watercraft in order to meet the requirement of the NPS general regulations 36 CFR 3.24, for PWC use.

2. Several commenters stated that the proposed rule does not comply with Park's General Management Plan because it allows PWC use upstream of the Hedlund Bridge on the Kettle River.

NPS Response: The implementation of this final rule is consistent with the Lake Roosevelt National Recreation Area General Management Plan, which allows for continuing PWC use subject to additional controls as necessary. The final rule, which is based on the updated Preferred Alternative B, does not allow PWC use upstream of the Hedlund Bridge on the Kettle River.

3. One commenter stated that the management of PWC by the NPS was inconsistent with the Tri-Party Agreement signed in 1946 by the Bureau of Reclamation, National Park Service and the Bureau of Indian Affairs.

NPS Response: PWC use under this final rule will be managed in accordance with state boating regulations with additional management prescriptions included as part of this alternative. The prescriptions are within the authority of the National Park Service to regulate recreational activities in areas under National Park Service jurisdiction. The Lake Roosevelt Cooperative Management Agreement, signed by the Secretary of the Interior on April 5, 1990, recognizes Lake Roosevelt National Recreation Area as an existing unit of the national park system and as such, subject to all NPS laws, regulations, policies and guidelines.

4. Several commenters stated that the analysis failed to adequately address NPS impairment policies and mandates.

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

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

5. One commenter stated that the proposed rule gave the Superintendent of Lake Roosevelt National Recreation Area too much discretion to react contrarily to public preference for PWC use.

NPS Response: Section 1.5 of Title 36 of the Code of Federal Regulations authorizes a park superintendent to temporarily limit, restrict, or terminate access to a park area to all public use or to a specific use or activity. Except in emergency situations, prior to implementing or terminating a restriction, condition, public use limit or closure, the superintendent will prepare a written determination justifying the action. The determination will set forth the reason(s) the restriction or closure has been established and an explanation of why less restrictive measures will not suffice. This authority is the same authority that is given to all superintendents to manage visitor use activities in any unit of the national park system.

6. One commenter stated that the analysis considered for the proposed rule does not include adequate studies on visitor experience related to PWC use.

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

7. One commenter expressed concern that the water quality analysis did not take into account the actual lake level, which is currently well below full pool, when analyzing impacts from PWC use on water quality.

NPS Response: Although the analysis did not look at the lower lake levels described in this comment, the volume of water required for dilution was calculated to be such a small volume that even with lower lake levels impacts would be negligible adverse.

8. One commenter requested additional information regarding the statement from Bluewater Network that research at Lake Mead, Nevada, showed PWC dump 25-30% of unburned fuel into the water.

NPS Response: The report by the Bluewater Network cited in the Selected Bibliography section of the EA is “Jet Position Paper” (2001) available on the Web at http://www.earthisland.org/bw/jetskipos.htm. Information from this article is not used in the EA. In appendix A of the EA, an emission rate of 3 gal./hour is attributed to the California Air Research Board (CARB 1998). This is based on the CARB (1998, 1999) estimate of 25-30% unburned fuel discharged into the water. In Bluewater Network (2001), reference is made to figures in Personal Watercraft Illustrated wherein model year 2000 personal watercraft on average consume 15.1 gallons of fuel per hour at full throttle and can dump between 25 and 30% of the fuel unburned into the water or 3.79 to 4.53 gal/hour. The emission rate of 3 gal/hour used in calculations of impacts to water quality is a mid-point between 3 gallons in 2 hours (1.5 gal/hour; NPS 1999) and 3.79 to 4.53 gal/hour (Personal Watercraft Illustrated and Bluewater Network 2001). The reference in the comment to “25%-30% of unburned fuel in Lake Mead, Nevada” cannot be located in the Bluewater Network (2001) article, and therefore, the raw data also cannot be located.

9. One commenter expressed concern that there was little discussion of cumulative impacts to water quality in the analysis.

NPS Response: Cumulative impacts to water quality are not ignored in the EA. Cumulative impacts are discussed for each of the three alternatives on pages 95-96 and 98-99. The challenge in the EA was to quantify the impacts to water quality from personal watercraft, other motorized vessels, and from other sources of petroleum-based organic compounds typical of those emitted from personal watercraft within the Columbia River watershed. Contributions of organic pollutants from personal watercraft and other motorized vessels were estimated for the purpose of evaluating cumulative impacts from these two types of vessels. As described on pages 88-89 of the EA, Lake Roosevelt National Recreation Area does not have quantitative water quality data applicable to the evaluation of impacts to the reservoir water quality. Therefore, the contribution of organic contaminants from upstream sources cannot be quantified. Because the EA was prepared for the purpose of evaluating potential impacts from personal watercraft, which constitute an estimated 4% of all motorized vessels on the reservoir (page 84 of the EA), the contribution from these watercraft was not ignored.

10. One commenter was concerned that the EA failed to adequately address the impacts to wildlife from PWC use. The commenter felt that the absence of osprey is directly related to PWC noise level and that the EA does not address the loss of river otters.

NPS Response: The upper Hawk Creek area is designated as a flat-wake zone (page 64 of the EA) which helps minimize noise disturbance of waterfowl, including osprey. The decline of a species from an area is usually the result of many contributing factors. These factors can include a loss of habitat, loss of suitable prey organisms, increased pollution levels, or other human disturbance. The apparent decline in numbers of osprey likely is not due to just one factor ( e.g. , personal watercraft noise levels), especially since Hawk Creek is a flat-wake zone.

River otters are listed together with beaver as common small mammals on page 63 of the EA. In the Environmental Consequences section of the EA, “Aquatic mammals such as beaver * * *” are discussed in the context of disturbance of wildlife and wildlife habitat. A list of current protected (endangered, threatened, and species of concern) species is provided in Table 9 (page 66 of the EA). The river otter is not listed by either the U.S. Fish and Wildlife Service or the Washington Department of Fish and Wildlife. If, as the comment contends, the river otter is now absent from areas where it was once abundant, it might be considered as an extirpated species—missing from a formerly occupied area but still found in other areas of its normal range.

11. Several commenters expressed concern regarding the park's ability to adequately enforce the new regulations set forth in the proposed rule.

NPS Response: PWC use under the final rule will be managed under current NPS boating regulations, which adopt Washington State Boating Laws, with additional management prescriptions included as a part of this alternative. These management strategies are more restrictive than state PWC regulations by increasing flat-wake speed zones and resource monitoring. The prescriptions are within the NPS legal mandate to regulate recreational activities under its jurisdiction, and there will be no conflict with state or other federal policies or regulations. Conflicts with regulations and policies of the Spokane Tribe of Indians and the Confederated Tribes of the Colville Reservation would exist due to differences in restrictions on the National Park Service versus tribal waters. The park anticipates staffing at current levels will be able to manage the new restrictions.

12. Two commenters were concerned that the socioeconomic impact analysis was not adequate because it failed to consider impacts to other non-PWC businesses if a ban on PWC was to continue.

NPS Response: As outlined in the EA, Alternative B is expected to have minimal, if any, impact on local/regional socioeconomics since the use of PWC at Lake Roosevelt will not be banned.

13. Two commenters expressed concern that that Spokane and Colville Confederated Tribes were not consulted with during the planning process.

NPS Response: The tribes were invited to review and comment on the draft EA before it was released to the public. The superintendent, after the public comment period closed, involved the tribal Business Councils and senior BIA representatives in discussions about the final version of the preferred alternative. Both tribes indicated that they did not intend to limit use by PWC on the portions of Lake Roosevelt that they manage and that for the NPS to act unilaterally on this issue would cause great confusion for the recreating public, result in greater impacts from PWC on the parts of the lake under their management.

The preferred alternative (Alternative B) and another alternative (Alternative A) were analyzed to determine the economic impacts of allowing the use of personal watercraft (PWC) in Lake Roosevelt National Recreation Area (LARO). 1 Alternative C, which would maintain a ban on PWC in LARO, represents the baseline for this analysis. The economic impacts of Alternatives A and B are measured relative to that baseline. Alternative A would reinstate PWC use in LARO as previously managed prior to the ban subject to specific location, flat wake, launch and retrieval, and operating restrictions. Alternative B would also reinstate PWC use, but includes additional location and flat wake restrictions to mitigate watercraft safety and visitor health and safety concerns, and to enhance the overall visitor experience. Additionally, Alternative B would establish a monitoring program to determine any future impacts of allowing PWC use in LARO.

The primary beneficiaries of Alternatives A and B are the visitors who would use PWCs within the recreation area if permitted, PWC users in substitute areas outside LARO where individuals displaced from LARO ride because of the ban, and the businesses that serve PWC users. All visitors using PWCs in LARO prior to the ban are assumed to regain their full economic value for PWC use in LARO under both Alternatives A and B. PWC users who currently ride in substitute areas outside LARO are assumed to gain some economic value if these areas are less crowded than under baseline conditions due to reinstating PWC use in LARO. Finally, suppliers of PWC rentals, sales, and service, as well as local hotels, restaurants, gas stations, and other businesses that serve PWC users, will likely experience an increase in business under Alternatives A and B.

While beneficiaries may gain more economic value under Alternative A than Alternative B due to fewer restrictions, NPS was unable to quantify any differences, and considers the benefits of those two alternatives to be similar. For both Alternatives A and B, PWC users are expected to gain a total present value of benefits between $1,076,400 and $1,311,300 over the next ten years, depending on the discount rate used. 2 Businesses are expected to gain a total present value of benefits between $9,600 and $78,000, depending on the discount rate used. The total present values of these benefits are presented in Table 1, and their amortized values per year are given in Table 2.

The costs associated with Alternatives A and B would accrue primarily to LARO visitors who do not use PWCs and whose recreation area experience is negatively affected by the use of PWCs within the recreation area. At LARO, non-PWC uses include boating, canoeing, fishing, and hiking. Impacts to these users may include the aesthetic costs associated with noise and visibility impacts, human health costs, ecosystem degradation costs, and safety and congestion costs. Average annual visitation to LARO was over 1.4 million people from 1998 to 2002. Most of these visitors are believed to come to the park for some form of water-based recreation. However, non-PWC users accounted for over 99 percent of total visitation.

“Nonusers” of the recreation area may also bear some costs under Alternatives A and B. For example, individuals who do not visit the recreation area may experience a reduction in economic value simply from the knowledge that the natural resources of the recreation area may be degraded by PWC use. Part of this loss may stem from a decreased assurance that the quality of the recreation area's resources is being protected for the enjoyment of future generations.

Most of the costs associated with Alternatives A and B are believed to be relatively small. Evaluating these costs in monetary terms was not feasible with currently available data, but they are qualitatively described in the economic analysis. Therefore, the benefits presented in Tables 1 and 2 above overstate the net benefits (benefits minus costs) of the different alternatives. If all costs could be quantified, the indicated net benefits for each alternative would be lower than the benefits indicated in Tables 1 and 2.

The costs associated with aesthetics, ecosystem protection, human health and safety, congestion, and nonuse values would likely be greater for Alternative A and for Alternative B due to the additional restrictions on PWC use in Alternative B. Since the quantified benefits for Alternatives A and B were the same, inclusion of these un-quantified costs would reasonably result in Alternative B having the greatest level of net benefits. Therefore, based on this analysis, the selection of Alternative B as the preferred alternative was considered reasonable.

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

This document is not a significant rule and has not been reviewed by the Office of Management and Budget under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This determination is based on the report “Economic Analysis of Management Alternatives for Personal Watercraft in Lake Roosevelt National Recreation Area” (MACTEC Engineering and Consulting, Inc., October 2003).

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

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

(4) This rule does raise novel legal or policy issues. This rule is one of the special regulations being issued for managing PWC use in National Park Units. The National Park Service published general regulations (36 CFR 3.24) in March 2000, requiring individual park areas to adopt special regulations to authorize PWC use.

The Department of the Interior certifies that this rulemaking will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This certification is based on a report entitled report “Economic Analysis of Management Alternatives for Personal Watercraft in Lake Roosevelt National Recreation Area” (MACTEC Engineering and Consulting, Inc., October 2003).

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

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

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

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

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

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

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

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

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

As a companion document to the NPRM, NPS issued the Personal Watercraft Use Environmental Assessment for Lake Roosevelt National Recreation Area. The Environmental Assessment (EA) was open for public review and comment from April 28, 2003 to May 28, 2003. A Finding of No Significant Impact (FONSI) was signed on June 17, 2004. Copies of the FONSI may be downloaded at http://www.nps.gov/laro or obtained by calling 509-633-9441 ext. 110 or writing to the Superintendent, Lake Roosevelt National Recreation Area, 1008 Crest Drive, Coulee Dam, WA 99116.

In accordance with the President's memorandum of April 29, 1994, “Government to Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and have determined that there are potential effects. Lake Roosevelt conducted preliminary consultation with the Spokane Tribe of Indians and the Confederated Tribes of the Colville Reservation in 2000 when the original rulemaking came into effect. Since that time, the park has continued to keep the Tribes informed in writing about various milestones during the PWC process. The Colville Tribes also commented on the EA which supports this rulemaking and supported the preferred alternative which is implemented through this rulemaking. The NPS also consulted with the Tribes on the provisions of the regulation and its possible effects on tribal waters.

This final rule is effective upon publication in the Federal Register . In accordance with the Administrative Procedure Act, specifically, 5 U.S.C. 553(d)(1), this rule, 36 CFR 7.55(c), is exempt from the requirement of publication of a substantive rule not less than 30 days before its effective date.

As discussed in this preamble, the final rule is a part 7 special regulation for Lake Roosevelt National Recreation Area that relieves the restrictions imposed by the general regulation, 36 CFR 3.24. The general regulation, 36 CFR 3.24, prohibits the use of PWC in units of the national park system unless an individual park area has designated the use of PWC by adopting a part 7 special regulation. The proposed rule was published in the Federal Register (69 FR 5799) on February 6, 2004, with a 60-day period for notice and comment consistent with the requirements of 5 U.S.C. 553(b). The Administrative Procedure Act, pursuant to the exception in paragraph (d)(1), waives the section 553(d) 30-day waiting period when the published rule “grants or recognizes an exemption or relieves a restriction.” In this rule the NPS is authorizing the use of PWCs, which is otherwise prohibited by 36 CFR 3.24. As a result, the 30-day waiting period before the effective date does not apply to the Lake Roosevelt National Recreation Area final rule.

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

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

The EPA issued final rule on April 30, 2004 (69 FR 23951) that set forth certain requirements for implementation of the 8-hour ozone NAAQS. That action is referred to as the “phase 1 rule.” Section VI.L. of the preamble (69 FR 23995) provides information regarding when challenges to the phase 1 rule may be filed in accordance with section 307(b) of the CAA. Section 307(b) of the CAA provides that challenges to any nationally applicable regulations may be filed only in the United States Court of Appeals for the District of Columbia Circuit. It also provides that challenges to any locally or regionally applicable rules may be filed in the United States Court of Appeals for the appropriate circuit. However, if EPA determines that a locally or regionally applicable rule is of nationwide scope and effect, then a challenge must be filed in the United States Court of Appeals for the District of Columbia Circuit.

The phase 1 rule is a nationally applicable rule. It establishes requirements for the 8-hour ozone NAAQS and those requirements apply in a consistent manner across the nation. The rule does not establish any requirements or obligations that apply only on a local or regional basis. Thus, under section 307(b), challenges to the phase 1 rule must be filed in the United States Court of Appeals for the District of Columbia Circuit. By the reference in section VI.L. to challenges being filed in the “appropriate circuit,” EPA did not intend to suggest that a Court other than the United States Court of Appeals for the District of Columbia Circuit could be appropriate or that phase 1 rule is locally or regionally applicable as that phrase is used in section 307(b). However, because EPA's statement in section VI.L. could be misconstrued, we are issuing this correction to clarify the Agency's intention by replacing the clause “appropriate circuit” with “United States Court of Appeals for the District of Columbia Circuit.”

The following is the corrected language:

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by June 29, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

In FR Doc. 03-32323 of January 7, 2004 (69 FR 1084), there were a number of technical errors that we are identifying and correcting in section II—Correction of Errors. Additionally, there are various revisions to Addenda B and C. (The provisions in this correction notice are effective as if they were included in the document published January 7, 2004.)

1. There was an inadvertent omission of two supplies (Polaroid film and gonisol) from the Practice Expense Advisory Committee (PEAC) recommendations for CPT codes 76511,76511-TC, 76512, 76512-TC, 76513,76513-TC, 76516, 76516-TC, 76519,76519-TC, 76529 and 76529-TC which impacts the practice expense RVUs for these codes on page 1205 of Addendum B. In addition, the supply inputs in the CPEP database for CPT code 94240 contained incorrect quantities for two supplies (oxygen and helium), resulting in incorrect practice expense RVUs on page 1229 of Addendum B for this code and for CPT code 94240-TC. The practice expense RVUs for CPT 95144 on page 1230 were also incorrect as they reflected the wrong antigen and price. The corrected RVUs are shown in section II.2.

2. In Addendum B, we assigned incorrect status indicators on page 1154 for CPT code 36416 and on page 1165 for CPT code 47133. These corrections are reflected in section II.2.

3. In Addendum B, we assigned incorrect practice expense RVUs to CPT codes 61863 and 61867 on page 1179, and to CPT codes 88358, 88358-26 and 88358-TC on page 1218. The correct RVUs are reflected in section II.2.

4. In Addendum B, on page 1241, an incorrect short descriptor was referenced for HCPCS code G0321, and the RVUs for G0321 and G0322 were transposed. The correct short descriptor and RVUs are shown in section II.2.

5. We inadvertently omitted the following CPT codes from Addendum B: page 1218 for CPT codes 89220, 89230, and 89240. These corrections are reflected in section II.3.

6. On pages 1146 and 1243 in Addenda B and C, respectively, we assigned the incorrect work RVUs to CPT 31629. We also failed to assign practice expense RVUs in the non-facility setting for this code. The corrected RVUs are shown in section II.4.

7. On page 1215 of Addenda B, the practice expense RVUs for CPT codes 78804 and 78804-TC are revised to reflect the appropriate crosswalk. The correction can be found in section II.4.

In FR Doc. 03-19677 of August 4, 2003 (68 FR 46036), there was a technical error we are identifying and correcting in the “Correction of Errors” section II of this final rule. Specifically, the August 4, 2003 final rule made a number of technical corrections to the regulations, including the revision of a cross-reference that appears in the regulations text at § 409.20(c). However, in republishing the introductory portion of paragraph (c) of § 409.20, we inadvertently used the paragraph heading for the preceding paragraph instead (paragraph (b)(2), “ Services not generally provided by (or under arrangements made by) SNFs ”). Therefore, we are publishing this final rule to restore the correct paragraph heading (“ Terminology. ”) for paragraph (c) of § 409.20. The provisions in this final rule are effective July 26, 2004.

In FR Doc. 03-19677 of August 4, 2003 (68 FR 46036), make the following correction:

On page 46070, in the second column, the heading for paragraph (c) of § 409.20 should read, “ Terminology .”

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect. We can waive this procedure, however, if we find good cause that a notice and comment procedure is impracticable, unnecessary, or contrary to the public interest and incorporate a statement of finding and its reasons for it into the correcting amendment issued (5 U.S.C. (b)(B)).

We find for good cause that it is unnecessary to undertake notice and public comment procedures because this correcting amendment does not make any substantive policy changes. This document makes technical corrections and conforming changes to the August 4, 2003 final rule. Therefore, for good cause we waive the notice and public comment procedures.

This Federal Register document is available from the Federal Register online database through GPO Access , a service of the U.S. Government Printing Office. The Web site address is: http://www.access.gpo.gov/nara/index.html .

In addition, the information in this final rule will be available soon after publication in the Federal Register on our MEDLEARN Web site at http://cms.hhs.gov/medlearn/refphys.asp .

Under section 1877 of the Social Security Act (Act), if a physician or a member of a physician's immediate family has a financial relationship with a health care entity, the physician may not make referrals to that entity for the furnishing of designated health services (DHS) under the Medicare program, and the entity may not bill for the services, unless an exception applies. Many of the exceptions that apply to compensation relationships require that the amount of compensation be “set in advance.” Section 411.354(d)(1) defines the term “set in advance.”

Section 411.354(d)(1) was first published in the Federal Register on January 4, 2001 (66 FR 856) in a final rule with comment period that is commonly referred to as the “Phase I” physician self-referral final rule. The last sentence of § 411.354(d)(1), as originally published in Phase I stated that—“Percentage compensation arrangements do not constitute compensation that is ‘set in advance' in which the percentage compensation is based on fluctuating or indeterminate measures or in which the arrangement results in the seller receiving different payment amounts for the same service from the same purchaser.” Many of the comments we received regarding Phase I final rule opposed this language. The comments indicated that physicians are commonly paid for their professional services on a percentage compensation basis and that hospitals, academic medical centers (AMCs), medical foundations, and other health care entities would have to restructure or renegotiate thousands of physician contracts to comply with the language in § 411.354(d)(1) regarding percentage compensation arrangements. To give the agency additional time to reconsider the matter, we published a 1-year delay of the effective date of the last sentence in § 411.354(d)(1) in the Federal Register on December 3, 2001 (66 FR 60154). Through a series of subsequent rules, we further delayed the effective date of this provision until July 7, 2004 (see 67 FR 70322, 68 FR 20347, and 68 FR 74491). We indicated in those rules that we intended to definitively address the percentage compensation issue in the “Phase II” physician self-referral final rule.

We published the Phase II interim final rule with comment period on March 26, 2004. In Phase II, we modified our interpretation of “set in advance” to permit some percentage compensation if the methodology for calculating the compensation is set in advance and does not change over the course of the arrangement in any manner that reflects the volume or value of referrals or other business generated by the referring physician. Accordingly, we removed the last sentence of § 411.354(d)(1) and otherwise modified the provision to reflect this interpretation. Phase II becomes effective on July 26, 2004, 19 days after the expiration of the most recent delay in effective date for the last sentence of the Phase I “set in advance” definition.

To avoid regulatory conflict and unnecessary disruption to existing contractual arrangements in the health care industry, we are further postponing for an additional 19 days, until July 26, 2004, the effective date of the last sentence of § 411.354(d)(1) as published in Phase I. This delay is intended to coincide with the effective date of the Phase II physician self-referral interim final rule. Accordingly, on July 26, 2004, § 411.354(d)(1) of Phase I will automatically be superseded by the revised § 411.354(d)(1), as published in Phase II. In the meantime, compensation that is required to be “set in advance” for purposes of compliance with section 1877 of the Act may continue to be based on percentage compensation methodologies, including those in which the compensation is based on a percentage of a fluctuating or indeterminate measure. We note that the remaining provisions of the Phase I § 411.354(d)(1) will still apply and that all other requirements for exceptions must be satisfied (including, for example, the fair market value and “volume and value” requirements.)

We ordinarily publish a notice of proposed rulemaking and invite public comment on the proposed rule. This procedure can be waived, however, if an agency finds good cause that the notice and comment rulemaking procedure is impracticable, unnecessary, or contrary to the public interest and if the agency incorporates in the rule a statement of such a finding and the reasons supporting that finding.

We do not believe that a delay in effective date is subject to notice and comment procedures when the regulatory provision at issue has never become effective. Nevertheless, for the benefit of the public, we set forth below the reasons why our implementation of this action without opportunity for public comment satisfies the good cause exception in 5 U.S.C. 553(b). We find that seeking public comment on this action would be impracticable and unnecessary.

We believe public comment is unnecessary because we are implementing this additional delay of effective date as a result of our review of the public comments that we received on the January 4, 2001 physician self-referral final rule. We do not believe that it is necessary to offer yet another opportunity for public comment on the same issue in the limited context of whether to delay this sentence of the regulation.

In addition, we find that seeking public comment on this delay in effective date will be impracticable and contrary to the public interest because it would implement, for 19 days, a statutory interpretation that we have rejected in a recent interim final rule. Even a brief implementation of the rejected statutory interpretation carries the potential for significant disruption in the health care industry. As discussed above, we understand from public comments and the comments we received on the December 3, 2001 interim final rule that, unless we further delay the effective date of the last sentence of § 411.354(d)(1), many physician contracts with hospitals, AMCs, and other entities furnishing DHS will not be in compliance with the physician self-referral prohibition. Consequently, these physicians will be unable to refer to the hospitals, AMCs, and other DHS entities to whom they are contractually obligated to provide professional or other services, and these DHS entities will be prohibited from billing Medicare for any services furnished as a result of a prohibited referral. We are concerned that this would unnecessarily disrupt the practice of medicine, inconvenience Medicare beneficiaries, or interfere with beneficiary medical care and treatment.

This is a synopsis of the Report and Order in MM Docket No.02-290 adopted June 8, 2004, and released June 10, 2004. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals ll, CY-A257, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or www.BCPIWEB.com.

In order to accommodate the Channel 280C at Fort Bridger, this document substitutes Channel 256C for Channel 280C at Nephi, Utah, and modifies the Station KMDG license to specify operation on Channel 256C. Station KMDG changed its callsign to KUDE on December 20, 2003. Station KUDE was granted a license to specify operation on Channel 280C in lieu of Channel 280C1 at Nephi, Utah. See BLH-20011213ABC. This document also substitutes Channel 295C1 for vacant Channel 279C1 at Rangely, Colorado. We note that in MB Docket 02-118, Channel 257C1 was substituted for vacant Channel 279C1. See 67 FR 64553, published October 21, 2002. The FM Table of Allotments currently lists Channel 257C1 at Rangely, Colorado. In order to accommodate Channel 248C at Coalville, this document substitutes Channel 249C for Channel 248C at Richfield, Utah, reallots Channel 249C to Elsinore, Utah, and modifies the license of Station KLGL to specify operation on Channel 249C at Elsinore. In order to accommodate Channel 249C at Elsinore, it substitutes Channel 259A for vacant Channel 246A at Beaver, Utah, and substitutes Channel 266C1 for vacant Channel 247C1 at Dinosaur, Colorado. To accommodate the Channel 266C1 substitution at Dinosaur, it substitutes Channel 234A for vacant Channel 266A at Wamsutter, Wyoming. This document also substitutes Channel 284C for Channel 285C at Tremonton, Utah, reallots Channel 284C to Lyman, Wyoming, and modifies the Station KBNZ license to specify operation on Channel 284C at Lyman. Station KBNZ was granted a construction permit to specify operation on Channel 285C0 in lieu of Channel 285C at Tremonton, which the FM Table of Allotments currently reflects this change. See BLH-20030806ABI. In order to accommodate Channel 284C at Lyman, this document substitutes Channel 259C for Channel 283C at Rock Springs, Wyoming, and modifies the Station KSIT license to specify operation on Channel 259C. To accommodate Channel 259C at Rock Springs, this document substitutes Channel 250C2 for vacant Channel 259C1 at Green River, Wyoming, Channel 282C for vacant Channel 261C at Wamsutter, Wyoming, and Channel 258A for vacant Channel 259A at Saratoga, Wyoming. See 67 FR 63874, October 16, 2002. The reference coordinates for the Channel 248C allotment at Coalville, Utah, are 40-55-46 and 111-00-26. The reference coordinates for the Channel 255C3 allotment at Franklin, Idaho, are 42-10-05 and 111-48-38. The reference coordinates for the Channel 280C2 allotment at Fort Bridger, Wyoming, are 41-19-00 and 110-23-01. The reference coordinates for the Channel 244C1 allotment at Smithfield, Utah, are 41-52-18 and 111-48-31. The reference coordinates for the Channel 256C allotment at Nephi, Utah, are 39-45-37 and 111-34-38. The reference coordinates for the Channel 295C1 allotment at Rangely, Colorado, are 40-05-15 and 108-48-15. The reference coordinates for the Channel 264C2 allotment at Monroe, Utah, are 38-37-21 and 112-07-29. The reference coordinates for the Channel 249C allotment at Elsinore, Utah, are 38-16-23 and 112-09-13. The reference coordinates for the Channel 259A allotment at Beaver, Utah, are 38-16-37 and 112-38-25. The reference coordinates for the Channel 266C1 allotment at Dinosaur, Colorado, are 40-14-42 and 109-00-30. The reference coordinates for the Channel 234A allotment at Wamsutter, Wyoming, are 41-40-18 and 107-58-18. The reference coordinates for the Channel 284C allotment at Lyman, Wyoming, are 40-52-34 and 110. The reference coordinates for the Channel 259C allotment at Rock Springs, Wyoming, are 41-26-00 and 109-07-02. The reference coordinates for the Channel 250C2 allotment at Green River, Wyoming, are 41-31-36 and 109-28-06. The reference coordinates for the Channel 282C allotment at Wamsutter, Wyoming, are 41-44-00 and 108-14-27. The reference coordinates for the Channel 258A allotment at Saratoga, Wyoming, are 41-27-12 and the reference coordinates for the Channel 228A allotment at Manila, Utah, are 40-59-17 and 109-43-19.

This final rule removes DFARS 212.102 and 237.601, which implemented Section 821 of the National Defense Authorization Act for Fiscal Year 2001 (Pub. L. 106-398). Section 821 permitted DoD to treat certain performance-based service contracts and task orders as contracts for the procurement of commercial items. The authority provided by section 821 expired on October 30, 2003, and has been superseded by the authority provided in section 1431 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136). Section 1431 provides broader, governmentwide authority for the treatment of performance-based service contracts and task orders as contracts for the procurement of commercial items. An interim FAR rule implementing section 1431 was published in Federal Acquisition Circular 2001-24 on June 18, 2004 (69 FR 34226).

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

This rule will not have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Therefore, publication for public comment is not required. However, DoD will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should cite DFARS Case 2003-D111.

The Paperwork Reduction Act does not apply, because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

10 U.S.C. 2465 prohibits DoD from entering into contracts for the performance of firefighting or security-guard functions at military installations or facilities, unless an exception applies. Section 331 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) added a new exception to the prohibition at 10 U.S.C. 2465. The new exception permits award of a contract for the performance of firefighting functions at a military installation or facility, if the contract is for a period of one year or less and the functions would otherwise have to be performed by members of the armed forces who are not readily available due to a deployment. This interim rule amends DFARS 237.102-70 to reflect the new exception.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD does not expect this rule to 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 application of the rule is limited to firefighting functions at military installations or facilities for periods of one year or less, when members of the armed forces are not readily available due to a deployment. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2003-D107.

The Paperwork Reduction Act does not apply, because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to publish an interim rule prior to affording the public an opportunity to comment. This interim rule implements Section 331 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136). Section 331 provides authority for contractor performance of firefighting functions at military installations or facilities for periods of one year or less, if the functions would otherwise have to be performed by members of the armed forces who are not readily available due to a deployment. Section 331 became effective upon enactment on November 24, 2003. Comments received in response to this interim rule will be considered in the formation of the final rule.

In July 1990, the National Security Telecommunications and Information Systems Security Committee (NSTISSC) was established for the purpose of developing and promulgating national policies applicable to the security of national security telecommunications and information systems. In January 2000, NSTISSC issued Policy No. 11, which addresses the national policy governing the acquisition of information assurance and information assurance-enabled information technology products. Policy No. 11 states that information assurance shall be considered as a requirement for all systems used to enter, process, store, display, or transmit national security information. DoD issued DoD Directive 8500.1, Information Assurance, and DoD Instruction 8500.2, Information Assurance Implementation, to implement Policy No. 11. This final rule makes corresponding changes to DFARS Subpart 239.71 and the clause at DFARS 252.239-7000.

DoD published a proposed rule at 68 FR 28187 on May 23, 2003. One source submitted comments on the proposed rule. A discussion of the comments is provided below. Differences between the proposed and final rules are addressed in the discussion of Comments 4 and 5. In addition, Subpart 239.71 is restructured for clarity by removing the “General” section previously at 239.7101 and relocating its contents to the “Scope” and “Definition” sections in 239.7100 and 239.7101 of the final rule.

1. Comment: The “Scope” section should further specify that the acquisition of information technology includes equipment (hardware and software), capabilities (building of enterprise architectures), and information technology services. This clarification would help ensure that the appropriate information assurance requirements are included in all information technology acquisition contracts.

DoD Response: The recommended clarification is unnecessary. A comprehensive definition of “information technology” is provided in FAR 2.101.

2. Comment: Under “Policy and responsibilities,” the “General” section should also include, as item (a)(7), Public Law 104-191, “Health Insurance Portability and Accountability Act of 1996,” which addresses the security and privacy of health data.

DoD Response: Do not agree. The list of policies and statutes in the “General” section is a representative, not a comprehensive, list. The requirements of Public Law 104-191 are addressed in DoD 6025.18-R, DoD Health Information Privacy Regulation.

3. Comment: Under “Policy and responsibilities,” paragraph (b) of the “General” section should also specify that the statement of work provided to the contracting officer contain a requirement that offerors provide a list to the contracting officer identifying any foreign nationals that may work on the contract by name, social security number (or other identifying number), and country of origin. In addition, the requiring activity should provide the requirements for disposal or destruction of information technology storage media.

DoD Response: Do not agree. DoD Directive 8500.1, Information Assurance, and DoD Instruction 8500.2, Information Assurance Implementation, contain references to other DoD publications that outline the numerous security requirements that must be addressed in a statement of work and other contract documents for information technology requirements.

4. Comment: The section entitled “Compromising emanations—TEMPEST or other standard” should be amended to add a requirement for a date after which an accreditation would be considered current for purposes of the proposed contract.

DoD Response: Agree. This change has been included in the final rule.

5. Comment: The clause at 252.239-7000, Protection Against Compromising Emanations, should be amended in paragraph (a) to add a requirement for a date after which a required accreditation would be considered current or valid for the contract.

DoD Response: Agree. This change has been included in the final rule.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD certifies that this final rule will 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 the DFARS changes in this rule reflect existing government policy pertaining to requirements for information assurance in the acquisition of information technology.

The information collection requirements in the clause at DFARS 252.239-7000 have been approved by the Office of Management and Budget, under Clearance Number 0704-0341, for use through October 31, 2004.

This final rule amends the clauses at DFARS 252.225-7021, Trade Agreements, and 252.225-7045, Balance of Payments Program—Construction Material Under Trade Agreements, to add 10 new European Union Member States to the definition of “designated country.” The new Member States are Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic, and Slovenia. The rule implements a determination of the United States Trade Representative that suppliers of eligible products of these Member States may participate in U.S. Government procurements without discriminatory treatment (69 FR 25654, May 7, 2004).

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

This rule will not have a significant cost or administrative impact on contractors or offerors, or a significant effect beyond the internal operating procedures of DoD. Therefore, publication for public comment is not required. However, DoD will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should cite DFARS Case 2004-D006.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Availability of Rulemaking Document

You can get an electronic copy using the Internet by—

(1) Searching the Department of Transportation's electronic Docket Management System (DMS) Web page ( http:dms/dot.gov/search );

(2) Accessing the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html; or

(3) Visiting TSA's Law and Policy Web Page at http://www.tsa.dot.gov/public/index.jsp.

In addition, copies are available by writing or calling the individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to identify the docket number of this rulemaking.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires TSA to comply with small entity requests for information and advice about compliance with statutes and regulations within TSA's jurisdiction. Any small entity that has a question regarding this document may contact the person listed in FOR FURTHER INFORMATION CONTACT. Persons can obtain further information regarding SBREFA on the Small Business Administration's Web page at http://www.sba.gov/advo/laws/law_lib.html.

On August 18, 2003, TSA published a notice of proposed rulemaking to add a new part 1507 to Chapter XII of title 49, Code of Federal Regulations, in order to exempt eight systems of records from one or more provisions of the Privacy Act. See 68 FR 49410. The exempted systems are as follows:

• Transportation Security Enforcement Record System (DHS/TSA 001), which creates a civil enforcement and inspections system for all modes of transportation within TSA's jurisdiction.

• Transportation Workers Employment Investigations System (DHS/TSAA 002), which covers background checks and employment investigations for transportation workers.

• Personnel Background Investigation Files System (DHS/TSA 004), which encompasses background checks and employment investigations on TSA applicants, employees, and contractors.

• Internal Investigation Record System (DHS/TSA 005), which covers investigations of misconduct of current and former TSA employees.

• Correspondence and Matters Tracking Records (DHS/TSA 006), which track inquiries, claims, and complaints that come into the agency.

• Freedom of Information Act and Privacy Act Record System (DHS/TSA 007), which will record requests and appeals made under both statutes.

• General Legal Records System (DHS/TSA 009), which covers a variety of matters filed in the Office of Chief Counsel.

• Federal Flight Deck Officer Record System (DHS/TSA 013), which will document the selection and training of deputized pilots as mandated by the Homeland Security Act of 2002.

TSA did not receive any comments on the proposed exemptions and therefore adopts the proposed rule as final. There are two minor changes to note between the proposed and final regulations. First, the Privacy Act authority has been changed from “5 U.S.C. 552a(k)(1)-(k)(2)” to read “5 U.S.C. 552a(k)” in order to reflect TSA's reliance on other portions of subsection (k). Second, the Internal Investigation Record System and the Correspondence and Matters Tracking Records had been inadvertently designated as “DOT/TSA 005” and “DOT/TSA 006,” respectively; these systems have been corrected to read “DHS/TSA 005” and “DHS/TSA 006,” respectively, in order to reflect the proper department.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that TSA consider the impact of paperwork and other information collection burdens imposed on the public. We have determined that there are no current or new information collection requirements associated with this proposed rule.

This final rule is not a “significant regulatory action” within the meaning of Executive Order 12886. Because the economic impact should be minimal, further regulatory evaluation is not necessary. Moreover, I certify that this final rule would not have a significant economic impact on a substantial number of small entities, because the reporting requirements themselves are not changed and because it applies only to information on individuals.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), (Pub. L. 104-4, 109 Stat. 48), requires Federal agencies to assess the effects of certain regulatory actions on State, local, and tribal governments, and the private sector. UMRA requires a written statement of economic and regulatory alternatives for proposed and final rules that contain Federal mandates. A “Federal mandate” is a new or additional enforceable duty, imposed on any State, local, or tribal government, or the private sector. If any Federal mandate causes those entities to spend, in aggregate, $100 million or more in any one year the UMRA analysis is required. This final rule would not impose Federal mandates on any State, local, or tribal government or the private sector.

TSA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action would 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, and therefore would not have federalism implications.

TSA has reviewed this document for purposes of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has determined that this action will not have a significant effect on the human environment.

The energy impact of this document has been assessed in accordance with the Energy Policy and Conservation Act (EPCA) Public Law 94-163, as amended (42 U.S.C. 6362). We have determined that this rulemaking is not a major regulatory action under the provisions of the EPCA.