Brucellosis is a contagious disease affecting animals and humans, caused by bacteria of the genus Brucella .

The brucellosis regulations, contained in 9 CFR part 78 (referred to below as the regulations), provide a system for classifying States or portions of States according to the rate of Brucella infection present and the general effectiveness of a brucellosis control and eradication program. The classifications are Class Free, Class A, Class B, and Class C. States or areas that do not meet the minimum standards for Class C are required to be placed under Federal quarantine.

In an interim rule effective February 13, 2004, and published in the Federal Register on February 20, 2004 (69 FR 7863-7864, Docket No. 04-009-1), we amended the regulations in § 78.41 by changing the classification of Wyoming from Class Free to Class A. The action was necessary to prevent the interstate spread of brucellosis.

Comments on the interim rule were required to be received on or before April 20, 2004. We received three comments by that date. The comments were from private citizens and a cattle producer. The comments are discussed below.

Two commenters stated that our current system for controlling the spread of brucellosis is ineffective because it does not address the greater threat posed by Wyoming's infected wildlife. One commenter added that the brucellosis infected wildlife is in the Greater Yellowstone Area (GYA) and stated that a brucellosis control program in Wyoming should be based on the livestock's proximity to the GYA. The commenter proposed certain changes to our program, including stricter surveillance for cattle within a certain vicinity of GYA wildlife during elk and bison calving season, brucellosis testing based on proximity to the GYA, and focusing on early intervention for these cattle herds.

We acknowledge that infected wild elk and bison populations in the GYA may be a source of brucellosis transmission to Wyoming's cattle. Transmission of brucellosis from wild elk to cattle occurred in Wyoming in 2003 and Idaho in 2002. The Brucellosis Coordination Team appointed by the Governor of Wyoming and organizations like the Greater Yellowstone Interagency Brucellosis Committee are working to find ways to address the brucellosis situation in the GYA. APHIS’ brucellosis program is designed so that it can be applied to all States, while leaving States some latitude to assess their own risks and implement additional regulations appropriate to individual needs. Furthermore, implementing a new program, as the commenter suggests, would require a separate action and cannot be done in this final rule.

The third commenter stated that all interstate movement of cattle should be prohibited. We do not believe that such an extreme step is warranted or necessary to prevent the spread of brucellosis in the United States.

Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final rule without change.

This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Order 12988, and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. ( See 7 CFR part 3015, subpart V.)

This amendment adopts a new AD for the Kaman Model K1200 helicopters. This action requires certain initial and repetitive inspections of the blade grips. This amendment is prompted by an accident involving the loss of all blades because of a blade grip crack on the upper surface around the bolthole of one blade.

The FAA has reviewed Kaman Service Bulletin No. 109 dated October 31, 2003, which describes visually inspecting blade grips for a crack before the next flight and before the first flight of each day.

This unsafe condition is likely to exist or develop on other helicopters of the same type design. Therefore, this AD is being issued to prevent failure of a blade grip leading to loss of a blade and subsequent loss of control of the helicopter. This AD requires, before further flight, removing the paint and primer from each blade grip; and using a light and 10x power or higher magnifying glass, visually inspecting each blade grip at the top (bolt) and bottom (nut) locations for a crack around the bolthole. Also, this AD requires, before the first flight of each day, removing corrosion preventative compound from each blade grip, and using a light and 10x power or higher magnifying glass, visually inspecting each blade grip at the top (bolt) and bottom (nut) locations for a crack around the bolthole. After each inspection, if a crack is not detected, applying corrosion protection compound over the exposed area is required. If a crack is found, this AD requires replacing the blade grip before further flight. Accomplish the actions in accordance with the service bulletin described previously.

The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability and structural integrity of the helicopter. Therefore, before further flight, and before the first flight of each day, visually inspecting each blade grip for a crack and replacing any cracked blade grip are required, and this AD must be issued immediately.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

The FAA estimates that this AD will affect 23 helicopters. The initial inspection of the blade grip will take approximately 2 work hours, and the daily inspection will take approximately 1/2 work hour 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 will be $197,340 for the first year ($2,990 for the initial inspection plus $194,350 for the repetitive inspections ($747.50 each day and assuming each helicopter is flown 260 days per year)).

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2003-SW-46-AD.” The postcard will be date stamped and returned to the commenter.

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

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

In FR Doc. 04-11502, appearing on page 29428 in the Federal Register of May 24, 2004, the following correction is made:

1. On page 29429, under SUPPLEMENTARY INFORMATION , in the second column, in the first line of the first complete paragraph, the phrase “noted in the FAP” is corrected to read “noted in the notice of filing”.

Parnell Laboratories (Aust) Pty. Ltd., Century Estate, unit 6, 476 Gardeners Rd., Alexandria, New South Wales 2015, Australia, filed ANADA 200-310 for the use of ESTROPLAN (cloprostenol sodium) Injection by veterinary prescription for manipulation of the estrous cycle of cattle. Parnell Laboratories (Aust) Pty. Ltd.'s ESTROPLAN Injection is approved as a generic copy of Schering-Plough Animal Health Corp.'s ESTRUMATE, approved under NADA 113-645. The ANADA is approved as of May 13, 2004, and the regulations are amended in 21 CFR 522.460 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In addition, Parnell Laboratories (Aust) Pty. Ltd., is not currently listed in the animal drug regulations as a sponsor of an approved application. At this time, 21 CFR 510.600(c) is being amended to add entries for the firm.

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.

The agency has determined under 21 CFR 25.33(a)(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.

IDEXX Pharmaceuticals, Inc., 4249-105 Piedmont Pkwy., Greensboro, NC 27410, filed NADA 141-186 that provides for use of SURPASS (1 % diclofenac sodium) Topical Cream in horses for the control of pain and inflammation associated with osteoarthritis in tarsal, carpal, metacarpophalangeal, metatarsophalangeal, and proximal interphalangeal (hock, knee, fetlock and pastern) joints. The NADA is approved as of May 13, 2004, and the regulations are amended in 21 CFR part 524 by adding § 524.590 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 13, 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.

(a) Specifications . Each gram of cream contains 10 milligrams diclofenac sodium.

(b) Sponsor . See No. 065274 in § 510.600(c) of this chapter.

(c) Conditions of use in horses —(1) Amount . Apply a 5-inch (5″) ribbon of cream twice daily over the affected joint for up to 10 days and rub thoroughly into the hair covering the joint until it disappears.

(2) Indications for use in horses . For the control of pain and inflammation associated with osteoarthritis in tarsal, carpal, metacarpophalangeal, metatarsophalangeal, and proximal interphalangeal (hock, knee, fetlock and pastern) joints.

(3) Limitations . Not for use in horses intended for food. Federal law restricts this drug to use by or on the order of a licensed veterinarian.

In FR Doc. 04-13173 appearing on page 32864 of the Federal Register of Monday, June 14, 2004, the following corrections are made:

On May 4, 2004, we published a notice of proposed rulemaking (NPRM) entitled, “Security Zone; Captain of the Port Hampton Roads Zone,” in the Federal Register (69 FR 24549). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Upon implementation of this rule, the Captain of the Port will have increased ability to provide for the safety and security of passenger vessels and vessels carrying Certain Dangerous Cargo (CDC). Given the urgent need to improve maritime and homeland security measures, this rule should be made effective as soon as possible.

Terrorist attacks on September 11, 2001, inflicted catastrophic human casualties and property damage. These attacks highlighted terrorists' desire and ability to utilize multiple means in different geographic areas to successfully carry out their mission.

Since the September 11, 2001 terrorist attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia and Flight 93, the Federal Bureau of Investigation has issued several warnings concerning the potential for additional terrorist attacks within the United States. The October 2002 attack on a tank vessel, MV LIMBURG, off the coast of Yemen, and the prior attack on the USS COLE demonstrate the maritime terrorism threat. These attacks manifest a continuing threat to U.S. maritime assets as described in the President's finding in Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 2002) that the security of the U.S. is endangered by the September, 11, 2001 attacks and that such disturbances continue to endanger the international relations of the United States. See also Continuation of the National Emergency with Respect to Certain Terrorist Attacks, (67 FR 58317, September 13, 2002); Continuation of the National Emergency With Respect To Persons Who Commit, Threaten To Commit, Or Support Terrorism, (67 FR 59447, September 20, 2002).

The U.S. Maritime Administration (MARAD) in Advisory 02-07 advised U.S. shipping interests to maintain a heightened state of alert against possible terrorist attacks. MARAD more recently issued Advisory 03-06 informing operators of maritime interests of increased threat possibilities to vessels and facilities and a higher risk of terrorist attack to the transportation community in the United States.

The ongoing hostilities in Afghanistan and Iraq have made it prudent for U.S. ports and waterways to be on a higher state of alert because the Al Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.

Due to increased awareness that future terrorist attacks are possible, the Coast Guard, as lead federal agency for maritime homeland security, has determined that the Captain of the Port must have the means to be aware of, detect, deter, intercept, and respond to asymmetric threats, acts of aggression, and attacks by terrorists on the American homeland while maintaining our freedoms and sustaining the flow of commerce. The security zones are established around all passenger vessels or vessels carrying CDC that are anchored, moored, or underway within the Captain of the Port Hampton Roads zone. A security zone is a tool available to the Coast Guard that may be used to control vessel traffic operating in the vicinity of passenger vessels and vessels carrying CDC.

No comments were received on the notice of proposed rulemaking. No changes have been made to the regulatory text.

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

We expect the economic impact of this rule to be so minimal that a full regulatory evaluation under the regulatory policies and procedures of DHS is unnecessary. This finding is based on the relatively small percentage of ships that would fall within the applicability of the regulation, the relatively small size of the limited access area around each ship, the minimal amount of time that vessels will be restricted in course or speed when the zone is being enforced, and the ease with which vessels may transit around the affected area. In addition, vessels that may need to enter the zones may request permission on a case-by-case basis from the COTP Hampton Roads or his designated representatives.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

This rule affects the following entities, some of which might be small entities: The owners or operators of vessels intending to transit in the security zone near a passenger vessel or a vessel that is carrying CDC. We received no comments on the impact of this rule on small entities.

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

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

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

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

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

Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

Regulated Entities . The only regulated entity that will be affected by the direct final rule amendment is the Weyerhaeuser Company facility located in New Bern, North Carolina.

Comments . We are publishing the direct final rule without prior proposal because we view it as noncontroversial and do not anticipate adverse comments. However, in the Proposed Rules section of today's Federal Register , we are publishing a separate document that will serve as the proposal in the event that adverse comments are filed. If we receive any adverse comments on a specific element of the direct final rule, we will publish a timely withdrawal in the Federal Register informing the public which amendments will become effective and which amendments are being withdrawn due to adverse comment. We will address all public comments in a subsequent final rule based on the proposed rule. Any of the distinct amendments in the direct final rule for which we do not receive adverse comment will become effective on the date set out above. We will not institute a second comment period on the direct final rule. Any parties interested in commenting must do so at this time.

World Wide Web (WWW). In addition to being available in the docket, electronic copies of today's action will be posted on the Technology Transfer Network's (TTN) policy and guidance information page http://www.epa.gov/ttn/caaa. The TTN provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.

Judicial Review. Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of the direct final rule is available only on the filing of a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by September 7, 2004. Under section 307(d)(7)(B) of the CAA, only an objection to the direct final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements that are subject to today's action may not be challenged later in civil or criminal proceedings brought by EPA to enforce these requirements.

The objective of the NSPS, promulgated on November 25, 1986, is to limit NO X emissions from the combustion of fossil fuel. For steam generating units combusting by-product waste, the requirements of the NSPS vary depending on the operation of the steam generating units. During periods when only fossil fuel is combusted, the steam generating unit must comply with the NO X emission limits in the NSPS for fossil fuel. During periods when only by-product waste is combusted, the steam generating unit may be subject to other requirements or regulations which limit NO X emissions, but it is not subject to NO X emission limits under the NSPS. In addition, if the steam generating unit is subject to federally enforceable permit conditions limiting the amount of fossil fuel combusted in the steam generating unit to an annual capacity factor of 10 percent or less, the steam generating unit is not subject to NO X emission limits under the NSPS when it simultaneously combusts fossil fuel and by-product waste.

With the exception noted above, during periods when fossil fuel and by-product waste are simultaneously combusted in a steam generating unit, the unit must generally comply with NO X emission limits under 40 CFR 60.44b(e) of the NSPS. Under 40 CFR 60.44b(e) the applicable NO X emission limit depends on the nature of the by-product waste combusted. In some situations, however, “facility-specific” NO X emission limits developed under 40 CFR 60.44b(f) may apply. The order for determining which NO X emission limit applies is as follows. A steam generating unit simultaneously combusting fossil fuel and by-product waste is expected to comply with the NO X emission limit under 40 CFR 60.44b(e); only in a few situations may NO X emission limits developed under 40 CFR 60.44b(f) apply. An equation in 40 CFR 60.44b(e) is included to determine the NO X emission limit applicable to a steam generating unit when it simultaneously combusts fossil fuel and by-product waste.

Only where a steam generating unit which simultaneously combusts fossil fuel and by-product waste is unable to comply with the NO X emission limit determined under 40 CFR 60.44b(e), might a facility-specific NO X emission limit under 40 CFR 60.44b(f) apply. That section permits a steam generating unit to petition the Administrator for a facility-specific NO X emission limit. A facility-specific NO X emission limit will be proposed and promulgated by the Administrator for the steam generating unit, however, only where the petition is judged to be complete. To be considered complete, a petition for a facility-specific NO X standard under 40 CFR 60.44b(f) consists of three components. The first component is a demonstration that the steam generating unit is able to comply with the NO X emission limit for fossil fuel when combusting fossil fuel alone. The purposes of this provision are to ensure that the steam generating unit has installed best demonstrated NO X control technology, to identify the NO X control technology installed, and to identify the manner in which this technology is operated to achieve compliance with the NO X emission limit for fossil fuel.

The second component of a complete petition is a demonstration that the NO X control technology does not enable compliance with the NO X emission limit for fossil fuel when the steam generating unit simultaneously combusts fossil fuel with chemical by-product waste under the same conditions used to demonstrate compliance on fossil fuel alone. In addition, this component of the petition must identify what unique and specific properties of the chemical by-product waste are responsible for preventing the steam generating unit from complying with the NO X emission limit for fossil fuel.

The third component of a complete petition consists of data and/or analysis to support a facility-specific NO X standard for the steam generating unit when it simultaneously combusts fossil fuel and chemical by-product waste and operates the NO X control technology in the same manner in which it would be operated to demonstrate and maintain compliance with the NO X emission limit for fossil fuel, if only fossil fuel were combusted. This component of the petition must identify the NO X emission limit(s) and/or operating parameter limits, and appropriate testing, monitoring, reporting and recordkeeping requirements which will ensure operation of the NO X control technology and minimize NO X emissions at all times.

Upon receipt of a complete petition, the Administrator will propose a facility-specific NO X standard for the steam generating unit when it simultaneously combusts chemical by-product waste with fossil fuel. The NO X standard will include the NO X emission limit(s) and/or operating parameter limit(s) to ensure operation of the NO X control technology at all times, as well as appropriate testing, monitoring, reporting and recordkeeping requirements.

The Weyerhaeuser Company has submitted a petition for a facility-specific NO X standard for the No. 2 Power Boiler at its kraft pulp mill in New Bern, North Carolina. The No. 2 Power Boiler combusts residual oil and a byproduct/waste gas from a foul condensate steam stripper. The foul condensate steam stripper was installed to comply with the maximum achievable control technology (MACT) standards for kraft pulping systems under 40 CFR part 63, subpart S. While the No. 2 Power Boiler complies with Subpart Db of 40 CFR part 60 while firing residual oil, the combustion of stripper off-gas along with residual fuel oil in the No. 2 Power Boiler results in a NO X emission rate in excess of the NSPS limit for the standard. Based on a review of the Weyerhaeuser Company's petition for an alternative NO X standard, EPA's Office of Air Quality Planning and Standards has determined the petition to be complete and an alternative facility-specific standard to be appropriate. An alternative NO X standard is provided in the final rule amendment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must determine whether the regulatory action is “significant” and, therefore, subject to Office of Management and Budget (OMB) review 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, it has been determined that the direct final rule does not constitute a “significant regulatory action” because it does not meet any of the above criteria. Consequently, this action was not submitted to OMB for review under Executive Order 12866.

The Office of Management and Budget approved the information collection requirements contained in the standards under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , at the time the rules were promulgated on November 25, 1986.

This action does not impose any new information collection requirements of the standards and will have no impact on the information collection estimate of project cost and hour burden made and approved by OMB during the development of the standards and guidelines. Therefore, the information collection requests have not been revised.

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. The OMB control numbers for our regulations are listed in 40 CFR part 9 and 40 CFR chapter 15.

The Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq. , 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 the direct final rule on small entities, small entity is defined as: (1) A small business whose parent company has fewer than 100 or 1,000 employees, or fewer than 4 billion kilowatt (kW)-hr per year of electricity usage, depending on the size definition for the affected North American Industry Classification System (NAICS) code; (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; and (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field.

After considering the economic impacts of the direct final rule on small entities, we certify that this action will not have a significant economic impact on a substantial number of small entities. The direct final rule will not impose any requirements on small entities because it does not impose any additional regulatory requirements.

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, EPA 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 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires us 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 objective of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it 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 our regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined that the direct final rule amendment contains no 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 1 year, nor does the direct final rule significantly or uniquely impact small governments, because it contains no requirements that apply to such governments or impose obligations upon them. Thus, the requirements of sections of the UMRA do not apply to the direct final rule.

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

The direct final rule does not have federalism implications. It will not have new substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Today's action codifies a facility-specific NO X standard. There are minimal, if any, impacts associated with this action. Thus, Executive Order 13132 does not apply to the direct final rule.

Executive Order 13175 (65 FR 67249, November 6, 2000) requires us 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 direct final rule does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to the direct final rule.

Executive Order 13045 (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 planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives we considered.

We interpret Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. The direct final rule is not subject to Executive Order 13045 because it is based on technology performance and not on health or safety risks.

The direct final rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Public Law No. 104-113; 15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in our regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when an agency does not use available and applicable voluntary consensus standards.

The direct final rule amendments do not involve technical standards. Therefore, the direct final rule is not subject to NTTAA.

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

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

•  Crop production (NAICS 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.

•  Animal production (NAICS 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.

•  Food manufacturing (NAICS 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.

•  Pesticide manufacturing (NAICS 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

In addition to using EDOCKET (http://www.epa.gov/edocket/) , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ . The OPPTS Harmonized Test Guidelines referenced in this document are avaiable at http://www.epa.gpo/opptsfrs/home/guidelin.htm/.

In the Federal Register of August 21, 2002 (67 FR 54188) (FRL-7195-2), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 0F6094) by Bayer Corporation, 8400 Hawthorn Road, Kansas City MO, 64120-0013. That notice included a summary of the petition prepared by Bayer Corporation, the registrant. There were no comments received in response to the notice of filing. The company name and address were subsequently changed to Bayer CropScience, P.O. Box 12014, 2 T.W. Alexander Drive, Research Triangle Park, NC 27709.

The petition requested that 40 CFR 180 be amended by establishing tolerances for residues of the herbicide, propoxycarbazone-sodium, methyl 2-[[[(4,5-dihydro-4-methyl-5-oxo-3-propoxy-1H-1,2,4-triazol-1-yl)carbonyl]amino]sulfonyl]benzoate, sodium salt and its metabolite, methyl 2-[[[(4,5-dihydro-4-methyl-5-oxo-3-(2′-hydroxy-propoxy)-1H-1,2,4-triazol-1-yl)carbonyl]amino]sulfonyl]benzoate, in or on the raw agricultural commodities (RACs) wheat forage, wheat hay, wheat straw, wheat grain, meat, and meat byproducts, (cattle, sheep, goats, horses, hogs), and milk at 1.5, 0.15, 0.05, 0.01, 0.05, and 0.002 parts per million (ppm); respectively. Bayer CropScience subsequently amended the petition by requesting that 40 CFR 180 be amended establishing tolerances for residues of the herbicide, propoxycarbazone, methyl 2-[[[(4,5-dihydro-4-methyl-5-oxo-3-propoxy-1H-1,2,4-triazol-1-yl)carbonyl]amino]sulfonyl]benzoate, sodium salt and its metabolite, methyl 2-[[[(4,5-dihydro-3-(2-hydroxypropoxy)-4-methyl-5-oxo-1H-1,2,4-triazol-1-yl)carbonyl]amino]sulfonyl]benzoate, in or on Wheat, forage at 1.5 ppm, Wheat, hay at 0.15 ppm, Wheat, straw at 0.05 ppm, and Wheat, grain at 0.02 ppm and for residues of the herbicide propoxycarbazone, methyl 2-[[[(4,5-dihydro-4-methyl-5-oxo-3-propoxy-1H-1,2,4-triazol-1-yl)carbonyl]amino]sulfonyl]benzoate in or on the Meat of cattle, sheep, goat and horse at 0.05 ppm, Meat byproducts of cattle, sheep, goat and horse at 0.05 ppm and Milk at 0.004 ppm.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *.”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of FFDCA and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of FFDCA, for tolerances for combined residues of propoxycarbazone-sodium and its metabolite on Wheat, forage at 1.5 ppm, Wheat, hay at 0.15 ppm, Wheat, straw at 0.05 ppm, and Wheat, grain at 0.02 ppm and for residues of propoxycarbazone-sodium in or on the Meat of cattle, sheep, goat and horse at 0.05 ppm, Meat byproducts of cattle, sheep, goat and horse at 0.05 ppm and Milk at 0.004 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by propoxycarbazone-sodium are discussed in Table 1 of this unit as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies reviewed.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS 111)

• Animal production (NAICS 112)

• Food manufacturing (NAICS 311)

• Pesticide manufacturing (NAICS 32532)

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

In addition to using EDOCKET (http://www.epa.gov/edocket/) , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ .

In the Federal Register of August 21, 2002 (67 FR 54203) (FRL-7194-7), EPA issued a notice pursuant to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act (FQPA) (Public Law 104-170), announcing the filing of a pesticide tolerance petition (PP 2E6476) by Magna Bon Corporation, 1531 NW 25th Drive, Okeechobee, FL 34972. This notice included a summary of the petition prepared by the petitioner Magna Bon Corporation.

The petitioner requested to amend 40 CFR 180.1001(c) newly redesignated as 180.910 by amending an existing exemption from the requirement of a tolerance for sulfuric acid (see 40 CFR 180.910). As currently established, sulfuric acid as an inert ingredient in formulated pesticide products can be applied to crops pre-harvest and post-harvest with a limitation of 0.1% in the pesticide formulation when used as a pH control agent. The petitioner requested to increase the limitation to 10% and to include a new use as a chelating agent. The petitioner requested the establishment of an exemption from the requirement of a tolerance in plants and plants products, meat, milk, poultry, eggs, fish, shellfish, and irrigated crops when it results from the use of sulfuric acid as an inert ingredient in a pesticide product used in irrigation conveyance systems and lakes, ponds, reservoirs, or bodies of water in which fish or shellfish are cultivated. Two comments were received in response to the notice of filing. See Unit IX.

Section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C), which requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by sulfuric acid are discussed in this unit.

In formulating a pesticide product, an acidic chemical such as sulfuric acid serves a specific purpose, that of a neutralizing agent or a pH adjuster. During the manufacture of a pesticide product (or, in fact, many industrial chemicals), it may be necessary to adjust the pH of the product. An acid functions as a neutralizing agent when the hydrogen ion (H +1 ) combines with the hydroxy (OH - ) in a basic solution to form a molecule of water. Small amounts of the hydrogen ion would be added to the solution to lower the pH until a neutral pH is reached. After the pH adjustment is performed and the neutralization reaction occurs, sulfuric acid is no longer present. The reaction products that are then present are the sulfate (II) negatively charged ion and water.

Alternatively, it might be necessary to have a pesticide product maintain an acidic pH; thus, the sulfuric acid would be added during the manufacturing process to deliberately lower the pH, which would mean an excess of the hydrogen ion. Such products are not likely to be sold to the residential market.

As a chemical class, acids are significantly different from many of the chemicals regulated as inert ingredients in pesticide products. First, acids are highly corrosive. Due to this property, toxicity testing can only be performed on very diluted solutions. Therefore, toxicity studies performed with undiluted (concentrated) sulfuric acid are not available. Second, acids are highly reactive, and therefore are not expected to be persistent in the food supply, the environment, or in water resources. Sulfuric acid would be expected to dissociate and immediately react with both plant and animal materials.

Chemically, an acid, is a substance that when dissolved in water yields hydrogen (H +1 ) ion. The increase of the concentration of the H +1 ion reduces the pH. It is the hydrogen ion that is highly reactive, thus displaying the corrosive characteristic. The consequences of acute exposure to acids are well understood; they are corrosive to the eyes, the skin, and the respiratory tract. The hazard of any acidic chemical derives directly from and is due to these irritation and acidic effects.

Sulfuric acid is a strong acid. It is also a commonly used chemical. It has been used for years, and therefore, there is a significant body of existing publicly-available information.

• Solutions of sulfuric acid greater than 10% are severely corrosive by all routes of exposure.

• Solutions of sulfuric acid of less than 10% are strong irritants.

• There is sufficient evidence that occupational exposure to strong-inorganic-acid mists containing sulfuric acid is carcinogenic (International Agency for Research on Cancer).

• There were no significant developmental or reproductive effects in mice or rabbits exposed to 20 mg/m 3 sulfuric acid aerosols 7 hours per day on gestation days 6 to 15 (Agency for Toxic Substances and Disease (ATSDR)).

Previously, the Agency reviewed several acute toxicity studies conducted with sulfuric acid. The following information on the acute toxicity of sulfuric acid was extracted from the 1993 Mineral Acid RED (Reregistration Eligibility Decision Document):

• The oral lethal dose (LD) 50 is 350 mg/kg, Toxicity Category II.

• The dermal LD 50 is > 2,000 mg/kg, Toxicity Category III.

• Sulfuric acid is Toxicity Category I for eye and dermal irritation.

No other toxicological data were required based on the use patterns at the time of the issuance of the RED, and considering the corrosiveness shown in the acute studies for dermal and eye irritation. More recently, the Office of Pesticide Programs at the Environmental Protection Agency, as part of the tolerance reassessment process, completed its tolerance reassessment review of sulfuric acid with particular emphasis on the role of sulfuric acid in pesticide products.

The National Institute of Occupational Safety and Health (NIOSH) Immediately Dangerous to Life or Health (IDLH) Documentation and the International Chemical Safety Card for sulfuric acid indicate that it is a colorless, oily, odorless liquid. The IDLH is 15 mg/m 3 . The Threshold Limit Value (TLV) is 1 mg/m 3 (TWA). Sulfuric acid reacts violently with water. It is corrosive to the skin and the respiratory tract, and on ingestion.

Sulfuric acid is considered to be a strong acid. The following acids have been approved by the Food and Drug Administration (FDA) for direct use in the food supply. In fact, FDA has determined that the following substances are Generally Recognized as Safe (GRAS) when used as direct food additives.

Sulfuric acid is also cleared under 21 CFR 178.1010 for use in food-contact surface sanitizing solutions.

In 1975 FDA published an assessment entitled “Evaluation of the Health Aspects of Sulfuric Acid and Sulfates as Food Ingredients.” “Sulfates are natural constituents of foods and normal products of sulfur metabolism in animals. It is evident that the toxic manifestations following oral administration of the sulfates considered in this report appear only at levels that are many times greater than those to which man is exposed in his daily diet.” It was concluded that: “There is no evidence in the available information on sulfuric acid that demonstrates or suggests that reasonable grounds to suspect, a hazard to public when they are used at levels that are now current or that might reasonably be expected in future.”

Sulfuric acid in its concentrated form is highly corrosive. Due to this property, toxicity testing can only be performed on dilute concentrations or on neutralized forms of the acid such as a salt. The consequences of acute exposure to sulfuric acid are well-understood. According to NIOSH and ATSDR, “Concentrated sulfuric acid has an extremely irritant, corrosive, and destructive action on all living matter including human tissues, not by virtue of its acidity (in concentrated form it is only slightly ionized) but because of its affinity for water. The affinity is so strong that it will remove the elements of water from even anhydrous organic matter such as carbohydrates, resulting in charring or carbonization with the liberation of heat. In sulfuric acid splashing accidents, the heat liberated by dilution of the concentrated acid with water used to flush the affected areas, can add thermal burn to chemical injury of the body.” Thus sulfuric acid “can burn and char the skin. It is even more rapidly injurious to the mucous membranes, and exceedingly dangerous to the eyes. Dilute sulfuric acid, while it does not possess this charring property, irritates the skin and mucous membranes by virtue of its acidity and can cause dermatitis.”

Exposure to a mist of sulfuric acid can cause irritant effects on the mucous membranes and chemical corrosive effects upon the teeth. Strong inorganic acid mists containing sulfuric acid are listed as known human carcinogens.

I. General Information A. Does this Action Apply to Me?

You may be affected by this action if you manufacture (defined by statute at 15 U.S.C. 2602(7) to include import) chemical substances, including inorganic chemical substances, subject to reporting under the Inventory Update Rule (IUR) at 40 CFR part 710. Any use of the term “manufacture” in this document will encompass import, unless otherwise stated. In the past, persons that only are processors of chemical substances have not been required to comply with the requirements of 40 CFR part 710. These amendments do not change the status of processors under the regulations at 40 CFR part 710. Potentially affected entities may include, but are not limited to:

Chemical manufacturers and importers subject to IUR reporting, including chemical manufacturers and importers of inorganic chemical substances (NAICS codes 325, 32411).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions at 40 CFR 710.48. If you have any questions regarding the applicability of this action to a particular entity, consult the technical contact person listed under FOR FURTHER INFORMATION CONTACT .

In addition to using EDOCKET ( http://www.epa.gov/edocket/ ), you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 710 is available at E-CFR Beta Site Two at http://www.gpoaccess5.gov/ecfr/.

1. Submitting CBI . Do not submit this information to EPA through EDOCKET, regulations.gov, or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments . When submitting comments, remember to:

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

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

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

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

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

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

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

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

EPA is required under TSCA section 8(b), 15 U.S.C. 2607(b), to compile and keep current an inventory of chemical substances manufactured or processed in the United States. This inventory is known as the TSCA Chemical Substances Inventory (the TSCA Inventory). In 1977, EPA promulgated a rule (42 FR 64572, December 23, 1977) under TSCA section 8(a), 15 U.S.C. 2607(a), to compile an inventory of chemical substances in commerce at that time. In 1986, EPA promulgated the initial Inventory Update Rule (IUR) reporting regulation under TSCA section 8(a) at 40 CFR part 710 (51 FR 21447, June 12, 1986) to facilitate the periodic updating of the TSCA Inventory and to support activities associated with the implementation of TSCA. In 2003, EPA promulgated amendments to the IUR (68 FR 848, January 7, 2003) (FRL-6767-4) (the 2003 Amendments) to collect manufacturing, processing, and use exposure-related information, and to make certain other changes.

TSCA section 8(a)(1) authorizes the EPA Administrator to promulgate rules under which manufacturers and processors of chemical substances and mixtures (referred to hereinafter as ``chemical substances'') must maintain such records and submit such information as the Administrator may reasonably require. TSCA section 8(a) generally excludes small manufacturers and processors of chemical substances from the reporting requirements established in TSCA section 8(a), although there are some exceptions under TSCA section 8(a)(3) to this general exclusion. Processors are not currently subject to the regulations at 40 CFR part 710.

The data reported under the IUR are used to update the information maintained on the TSCA Inventory. EPA uses the TSCA Inventory and data reported under the IUR to support many TSCA-related activities and to provide overall support for a number of EPA and other Federal health, safety, and environmental protection activities.

The IUR, prior to its amendment in January 2003, required U.S. manufacturers of organic chemicals to report to EPA every 4 years the identity of chemical substances manufactured during the reporting year in quantities of 10,000 pounds or more at any plant site they own or control. Prior to its amendment, the IUR generally excluded several categories of substances from its reporting requirements, i.e., polymers, inorganic substances, microorganisms, and naturally occurring chemical substances. Plant sites were required to report information such as company name, plant site location, plant site Dun and Bradstreet number(s), identity of the reportable chemical substance, and production volume of each reportable chemical substance. Data were reported to EPA under the IUR in 1986, 1990, 1994, 1998, and 2002.

Due to extensive 2003 Amendments (68 FR 848), U.S. manufacturers of chemicals (no longer limited to just organic chemicals) are now required to report to EPA every 4 years the identity of chemical substances manufactured during the reporting year in quantities of 25,000 pounds or more at any plant site they own or control. The amended IUR continues to exclude several categories of substances from its reporting requirements, i.e., polymers, microorganisms, and naturally occurring chemical substances. Inorganic chemicals are no longer exempt and certain natural gas substances are now fully exempt. In addition to the information reported prior to the amendments, submitters now also are required to report additional manufacturing exposure-related data, including the physical form and maximum concentration of the chemical substance and the number of potentially exposed workers.

The 2003 Amendments also established a second reporting threshold for larger volume chemicals of 300,000 pounds or more manufactured during the reporting year at any plant site for reporting of certain processing and use information (40 CFR 710.52(c)(4)). This information includes process or use category, NAICS code, industrial function category, percent production volume, number of use sites, number of potentially exposed workers, and consumer/commercial information such as use category, use in or on products intended for use by children, and maximum concentration. For the submission period occurring in 2006, inorganic chemicals, regardless of production volume, are partially exempt (i.e., submitters do not report processing and use information for inorganic chemicals). After the 2006 cycle, the partial exemption for inorganic chemicals is no longer applicable and submitters are required to fully report information on inorganic chemical substances. In addition, specifically listed petroleum process streams and other specifically listed chemical substances are partially exempt, and manufacturers of such substances are not required to report processing and use information.

Through this action, EPA is making the following minor corrections to the IUR.

1. Definition--non-isolated intermediate . EPA is moving the definition for “non-isolated intermediate” from 40 CFR 710.43 to 40 CFR 710.3. Prior to the 2003 Amendments, definitions for both the IUR and the compilation of the TSCA Inventory were included in one definition section within 40 CFR part 710. The 2003 Amendments, however, created two separate definition sections within 40 CFR part 710; one for terms that apply solely to the IUR regulations (see 40 CFR 710.43), and the other for terms that may be used in both the regulations associated with the compilation of the TSCA Inventory, and in the IUR regulations (see 40 CFR 710.3). In the 2003 Amendments, EPA included the definition for “non-isolated intermediate” in 40 CFR 710.43. This was erroneous because the term is used in the regulations associated with the compilation of the TSCA Inventory (see 40 CFR 710.4(d)(8)). As a result, EPA is moving this definition to 40 CFR 710.3. This relocation is purely administrative, and does not have any substantive effect on the meaning or use of the term “non-isolated intermediate” within the regulations at 40 CFR part 710.

2. Partial exemption requirements . Section 710.46(b)(2) contains the requirements for the partial exemption of certain listed chemicals from IUR reporting requirements (i.e., exemption from the requirements listed in § 710.52(c)(4)), as well as the list of chemicals covered by this partial exemption. EPA is correcting the list of partially exempt chemicals in § 710.46(b)(2)(iv), as one of the chemicals on the list was included in error. The initial list of partially exempt substances was derived from three basic sources, as described in the technical support document “Methodology Used for the Initial Selection of Chemicals for the Inventory Update Rule Amendments (IURA) ‘Low Current Interest’ Partial Reporting Exemption” (OPPT, USEPA, July 2, 2002, docket ID number OPPT-2002-0054). One of the sources was the OECD HPV SIDS program, from which a group of linear alkyl benzenes (LABs) was identified to be included in the partial exemption. The SIDS program list of LAB chemicals included CAS number 68648-86-2 (benzene, C14-16-alkyl derivs.). EPA has since determined that this chemical submitted to the SIDS program by the manufacturing company is not actually a LAB, but is rather a branched alkylbenzene with a different carbon chain length range (alkyl range) than the name implied. The substance, which is named “benzene, C4-16-alkyl derivs.,” rather than “benzene, C14-16-alkyl derivs.,” is not one of the chemicals for which EPA had received detailed exposure information nor was this chemical part of the LAB group screened in the OECD HPV SIDS program (Ref. 1). EPA is correcting § 710.46(b)(2)(iv) by removing the chemical identified as CAS number 68648-86-2.

3. Percent production volume associated with physical form requirements . Section 710.52(c)(3)(ix) contains the requirement to report the percentage, rounded off to the closest 10%, of total production volume of the reportable chemical substance that is associated with each physical form reported. The requirement originally stated that “The sum of the percentages reported must not add up to more than 100%.” There are instances, however, where due to rounding the percentage may add up to more than 100%. For example, if a chemical substance is produced in three physical forms with the percentages of 48%, 26%, and 26%, rounding would result in the reporting of 50%, 30%, and 30%. Adding the rounded percentages results in a sum of 110%. EPA is correcting this section by removing the requirement for the percentages to not add up to more than 100%.

4. Site ranges correction . Section 710.52(c)(4)(i)(E) describes the requirements for reporting the number of sites for each combination of industrial processing or use operation, NAICS code, and industrial function category. The number of sites is reported in ranges, and codes are used to report the range. The ranges were originally as follows: less than 10 sites, from 10 to 25, from 25 to 100, from 100 to 250, from 250 to 1,000, from 1,000 to 10,000, and more than 10,000. EPA is adjusting the ranges in order to avoid confusion as to which range must be reported by submitters reporting 25, 100, 250, or 1,000 sites. Thus, the ranges will now be as follows: Less than 10 sites, at least 10 but less than 25, at least 25 but less than 100, at least 100 but less than 250, at least 250 but less than 1,000, at least 1,000 but less than 10,000, and 10,000 or more.

5. Cross-reference correction . Section 710.58(d) provides notice that “[i]f no claim of confidentiality is indicated on the reporting form . . . , or if confidentiality claim substantiation required under paragraphs (c) and (d) of this section is not submitted with the reporting form, EPA may make the information available to the public without further notice to the submitter.” The reference to paragraph (d), however, is incorrect, as that paragraph does not contain a confidentiality claim substantiation requirement. Instead, the appropriate cross reference is to paragraphs (b) and (c), which both contain the claim substantiation requirement. As a result, EPA is correcting § 710.58(d) by changing the cross-reference to the substantiation requirements from “paragraphs (c) and (d)” to “paragraphs (b) and (c).” This change is purely administrative, makes the relevant regulatory provision internally consistent and correct, and does not have any substantive effect on any other part of the regulations at 40 CFR part 710.

6. Availability of reporting documents correction . Section 710.59(c) provides information describing how to obtain IUR reporting documents, including the reporting form and instructions. EPA is correcting information in this section to reflect EPA's current practice in making this information available. In keeping with current technology and industry practices, EPA now makes the reporting documents available through the internet, at www.epa.gov/oppt/iur , and no longer automatically mails the documents to submitters from the previous reporting cycle. Nonetheless, paper copies still will be mailed upon request.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment as this action simply makes certain minor corrections to 40 CFR part 710. This final rule will be effective on September 7, 2004, without further notice unless the Agency receives adverse comment by August 6, 2004. If EPA receives adverse comment on one or more distinct amendments, paragraphs, or sections of this rulemaking, the Agency will publish a timely withdrawal in the Federal Register indicating which provisions will become effective and which provisions are being withdrawn due to adverse comment. Any distinct amendment, paragraph, or section of today's rulemaking for which the Agency does not receive adverse comment will become effective on September 7, 2004, notwithstanding any adverse comment on any other distinct amendment, paragraph, or section of today's rule. For any distinct amendment, paragraph, or section of today's rule that is withdrawn due to adverse comment, EPA will publish a notice of proposed rulemaking in a future edition of the Federal Register . The Agency will address the comments on any such distinct amendment, paragraph, or section as part of that proposed rulemaking.

The public version of the official record for this rulemaking has been established as described in the ADDRESSES unit under docket ID number OPPT-2003-0075. This record includes the documents located in the docket as well as the documents that are referenced in those documents. The following document is specifically referenced in this final rule. The document is also included in the public version of the official record.

1. E-mail from John Heinze, Council for LAB/LAS Environmental Research, to Leslie Scott, EPA, May 19, 2003.

This direct final rule implements corrections to 40 CFR part 710. Since this direct final rule does not impose any new requirements, it is not subject to review by the Office of Management and Budget (OMB) under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this direct final rule is exempt from review under Executive Order 12866 due to its lack of significance, this direct final rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution , or Use (66 FR 28355, May 22, 2001). This direct final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq ., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since this action merely makes minor corrections to 40 CFR part 710, EPA certifies this action will not have significant economic impact on a substantial number of small entities. There will be no adverse impact on small entities resulting from this action. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” 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 action does not alter the relationships or distribution of power and responsibilities established by Congress. The Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This direct final rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

This is a summary of the Commission's Memorandum Opinion and Order adopted March 31, 2004, and released May 25, 2004. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room, CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov . Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.

1. The Memorandum Opinion and Order denies the petitions. The issues raised in the petitions for reconsideration of the First Report and Order , 65 FR 36639, June 9, 2000, fall into two categories. First are questions regarding the predictive model we established. EchoStar Satellite Corporation (EchoStar) questions on legal grounds the process that we used to establish values for the signal loss quantities added to the “Individual Location Longley Rice” (ILLR) model, contending that we relied unjustifiably on a study incompletely represented in the record of the proceeding. Both EchoStar and the National Association of Broadcasts and Association for Maximum Service Television, Inc. (NAB/MSTV) request that the Commission change some of the values assigned to these signal loss quantities. NAB/MSTV also asks that we revise the standard values of receiving antenna heights used in the ILLR model. Second are questions regarding implementation of the on-site testing procedures contained in the statute. Both EchoStar and NAB/MSTV raise questions regarding how to assure the reliability of on-site tests and the independence of persons conducting them. EchoStar also asks that we determine whether an expedited procedure for completing on-site testing comports with the statute. EchoStar's proposal is opposed by NAB/MSTV.

2. Process Used to Establish Values for Signal Loss Quantities . EchoStar asserts that we failed to comply with the Administrative Procedure Act in our implementation of the ILLR model by basing our decision on materials not contained in the record of the proceeding. Specifically, EchoStar states that we established values for signal loss quantities in the ILLR model based on the results of a study submitted in the joint comments of NAB/MSTV that was unaccompanied by underlying measurement data. It contends that the underlying measurement data had not been made part of the public record prior to the First Report and Order . It argues that we should not have accepted the results of the NAB/MSTV study without independent verification of the path loss calculations, and suggests that our decisions with regard to signal loss quantities may be in error since there is nothing in the record to indicate that we independently verified the statistical analysis of the NAB/MSTV study. EchoStar states that there is a possibility that the ILLR calculations made by NAB/MSTV contain an inherent bias. To test this possibility, it engaged the engineering firm of Hammett and Edison (H&E) to repeat the calculations for a few of the approximately 1000 individual locations analyzed by the NAB/MSTV study, and it asserts that variations in the results obtained by H&E demonstrate the unreliability of the NAB/MSTV data.

3. Contrary to EchoStar's assertions, our determinations of signal loss quantities for the ILLR were reasonably derived and complied fully with the provisions of the APA. The signal loss values we established for use in the ILLR model were derived by our own further analysis of both the NAB/MSTV study and another study by Rubinstein that similarly involved a large number of actual measurements of radio field intensity. The NAB/MSTV study was described and its results analyzed in the joint comments and reply comments of NAB/MSTV, submitted in response to the initial Notice of Proposed Rulemaking , 65 FR 4923, February 2, 2000. Our decision in the First Report and Order found that the technical assumptions and analytical methods described in both study reports were accurate representations of how the underlying data had been examined. The methodologies used in the NAB/MSTV and the Rubinstein studies are similar, and in both cases were clearly described so that we were able to determine their applicability and the validity of their results. We were thus able to assess the significance of the tabulated results without repeating the calculations. We did in fact verify that no apparent bias was introduced from the individual measurement locations selected in the NAB/MSTV study. We also determined that the measurement data and signal strength predictions were organized into clearly defined and non-overlapping categories, and that this organization of data was significant with respect to the type of conclusions sought. These are ordinary steps in the review of engineering and scientific studies, and we did not deem it necessary to relate routine activities of this nature in the text of the First Report and Order .

4. Moreover, the underlying raw data for the NAB/MSTV study, consisting of about 1000 measurements of signal intensity at individual locations, have been publicly available since well before the initial Notice of Proposed Rulemaking . About half of these measurements were placed in evidence in the matter of CBS et al. v. PrimeTime24 , U.S. District Court, Southern District of Florida, Case No. 96-3650-CIV-Nesbitt. The remainder are contained in a report of field tests comparing digital and analog television transmission submitted to an FCC advisory committee. In sum, the data has now been filed in the record in this proceeding, and EchoStar has, in fact, reviewed and utilized the raw data in its arguments, as further discussed in the following paragraph. Thus, the provisions of the APA have been satisfied.

5. Finally, the Commission observes that the H&E analysis of the data fails to support EchoStar's assertion that there was an underlying bias in the NAB/MSTV submission. The differences between the H&E calculations and those of the NAB/MSTV study are due to the fact that they are made by different implementations of the ILLR model. The NAB/MSTV study's calculations were made by the ILLR computer program currently in general use for purposes of the SHVIA under arrangements that satellite carriers, including EchoStar, have made with Decisionmark Corporation, an independent agent. Moreover, the differences that do occur do not indicate a bias, since the H&E study found some values of path loss higher and some lower than those calculated by NAB/MSTV. Of the five calculations made by H&E, three predicted a higher signal level than those calculated by Decisionmark, and two lower.

6. Values Assigned to Signal Loss Quantities . In the SHVIA, Congress requires us to prescribe an improved model for reliably predicting the ability of individual locations to receive signals of grade B intensity. The SHVIA further requires that we “ensure that such model takes into account terrain, building structures, and other land cover variations.” EchoStar argues that, since Congress directs us to take buildings and other land cover variations into account, we failed to comply with the statutory mandate by setting some of the signal loss quantities to zero. It urges that the ILLR model incorporate, without reduction in magnitude, all the values derived from the Rubinstein study, as proposed in the initial Notice of Proposed Rulemaking .

7. Our analysis, based on the results of both studies, led us to give the value zero to the signal loss quantities associated with all VHF channels and to reduce the proposed values of those associated with UHF channels. The specific values we assigned as signal loss quantities provide ILLR predictions accurately reflecting the results of actual field testing. We did not ignore these losses, but rather made a considered determination that the most accurate ILLR predictions for VHF stations under certain groundcover conditions, including buildings, are made by setting the corresponding loss values to zero. Thus, we have taken the factors directed by Congress into consideration, and we have followed its direction in the SHVIA by assigning values based on thorough analysis that make the ILLR model as accurate as possible, and reject EchoStar's contention in this regard.

8. NAB/MSTV asks that we revise our assignment of signal loss quantities in the land use category “open land.” It argues that the values assigned to certain subcategories of open land should be zero, due to the reception conditions implied by their names. The specific subcategories identified by NAB/MSTV for loss values of zero are “Dry Salt Flats,” “Beaches,” and “Bare Ground” as named by the United States Geological Survey (USGS). While it is true that these names individually imply the absence of buildings and vegetation, they represent only 3 of the 10 subcategories in the group “open land.” This combination of USGS subcategories into the single category of “open land” was at the core of the technical approach proposed in the initial Notice of Proposed Rulemaking and subsequently adopted in the First Report and Order . Following this technical approach, the NAB/MSTV study analyzed field measurements grouped in this larger category, rather than in the particular subcategories of “Dry Salt Flats”, “Beaches”, and “Bare Ground”. There is consequently no public record of an analysis to substantiate a zero loss value for the particular subcategories singled out in the NAB/MSTV petition for reconsideration. In the absence of specific reliable data, we will not change the values assigned to individual land use categories from those established in the Report and Order .

9. Antenna Height Assumptions . NAB/MSTV also asks that we set the standard values of receiving antenna heights at 6.1 and 9.1 meters in place of the rounded values of 6 meters and 9 meters for two- and three-or-more-story buildings respectively. The receiving antenna height is a parameter of the ILLR model. We endorsed the Longley-Rice prediction procedure for the first time in the SHVA context in CS Docket No. 98-201, and recommended receiving antenna heights of 20 or 30 feet in the Report and Order , 64 FR 7113, February 12, 1999, in that docket. Subsequently, in a technical appendix to the First Report and Order in the present proceeding, we converted to metric units using the whole numbers 6 and 9 meters. This practice matches the antenna height assumption of 9 meters used for analysis of DTV and analog TV service as described in “Longley-Rice Methodology for Evaluating TV Coverage and Interference,” OET Bulletin 69, Federal Communications Commission (July 2, 1997). We have found that ILLR predictions are generally not precise enough to distinguish between 6.1 or 9.1 m and the rounded values.

10. Therefore, with regard to NAB/MSTV's request that the receiving antenna heights assumed for ILLR predictions be set at 6.1 and 9.1 m in place of the rounded values of 6 and 9 m, we find that the greater heights would not produce significantly different or more accurate field strength predictions. Accordingly, to maintain consistency with the 9 m value specified for receiving antenna height by OET Bulletin 69, we will continue to specify the rounded values for use in the ILLR.

11. The SHVIA establishes a procedure that may extend to on-site testing when a subscriber is denied satellite retransmission of a distant network station as a result of a predictive determination. Specifically, the SHVIA prescribes two steps before a test is performed. The first is the waiver request. A subscriber who is denied satellite retransmission of the signal of a specific distant network station or stations based on a predictive determination may request a waiver from the local network affiliate. This request is to be made through the satellite service provider. In the event the local affiliate denies the waiver request, the second step is a request for an on-site test. Having been denied a waiver, the subscriber may submit, through the satellite provider, a request for an on-site test to determine whether the subscriber receives or does not receive a signal meeting the signal intensity standard. The satellite carrier and the network station must then select a qualified and independent person to conduct the test, following the procedures set out in the Commission's rules, and the test must be conducted within 30 days of the subscriber's request for a test. If the test verifies the subscriber's inability to receive the locally broadcast signal at the required minimum intensity, the subscriber thereby becomes eligible for satellite retransmission of the distant network station's signal.

12. Independence of Persons Conducting Reception Tests . In its petition for reconsideration, the NAB/MSTV requests that we provide guidance about what is required for a signal intensity tester to be considered “independent,” and asks the Commission to rule that a tester can be considered independent only if he or she is not employed by and does not have a business relationship with any satellite carrier. It argues that satellite dish installers would be inclined to find customer premises unserved in the interest of the satellite carriers who recommend them and also in the interest of the customers paying for dish installation who wish to receive the distant network signals via satellite.

13. The Commission declines to adopt NAB/MSTV's suggestion. In the First Report and Order , we appointed the American Radio Relay League (ARRL) as the independent and neutral entity that will designate the person or organization to conduct measurements if the satellite carrier and the network station are unable to agree on the selection of a tester. The Commission has selected an impartial, independent entity to designate qualified testers and we expect that the tester's professionalism and any track record regarding their impartiality will be taken into consideration. We appointed the ARRL specifically because we expect it to designate persons who can make judgments with appropriate expertise and objectivity, and no one has raised a question as to ARRL's capability to do so. We further note that a dish installer may also be the local installer of television antennas and hence have broader business interests than solely as a dish installer. Moreover, if we were to require that testers not have business relationships with any satellite carrier, and similarly with any broadcasters, application of the statute would be problematic, since many experienced technicians will have gained their technical qualifications partly through work performed for satellite companies or broadcasters. Thus, qualified persons may be unavailable in many localities if business relationships by themselves were a barrier.

14. Rather than establishing a restrictive definition or finite list of testers that may be considered “independent,” we offer as guidance, for the satellite and broadcast industries as well as for the ARRL, examples of candidate testers who may be considered independent in the SHVIA context. We recommend that testers with a one-sided affiliation, either with satellite providers or broadcast stations, be avoided unless both parties affirmatively find the tester acceptable or no other qualified tester is available. For example, an employee of either the broadcaster or the satellite carrier involved in the dispute that gives rise to the need for a test would be the least independent candidate. A contractor or consultant whose business includes measuring signal reception for cellular or land mobile radio services would be more suitable for conducting television signal intensity tests. A contractor who provides service in support of or who works for only broadcasters or satellite providers would be less independent than a contractor who provides services to neither or to both. In no event, however, should a tester receive compensation that is dependent upon the outcome of the particular test in question. We note in relation to these matters that the satellite provider and the local broadcast station may propose specific candidates to the ARRL for its consideration of their qualifications as well as independence. We recognize, however, that there can be circumstances, particularly in the smaller markets, in which the choice of qualified testers may be limited, and the parties, as well as ARRL, should show reasonable flexibility in applying the criteria. Finally, we expect that a tester that is initially agreed upon or determined by the ARRL to be qualified will conduct the test for which he or she has been designated without later objection by either party. That same tester could then be designated to conduct additional tests without further requalification unless a party raises a specific objection to his or her qualifications or practices.

15. Event Sequence for On-Site Tests. In the First Report and Order , we described the statutory provisions for waivers and testing with respect to the eligibility of satellite service subscribers to receive distant signals. Essentially, if the ILLR predicts that a subscriber is “served,” the subscriber may submit a request for a waiver through the satellite carrier to the network station. If the network station grants the waiver, the subscriber is eligible to receive the distant station via satellite. The statute further provides that if the waiver is denied, the subscriber may submit a request for a test to the satellite carrier. The SHVIA's scheme contemplates that a waiver would be sought from a broadcaster, and a test requested if the waiver is denied, with the broadcaster paying for the test if the test demonstrates that the subscriber does not receive an adequate over-the-air signal. This provides the broadcaster the opportunity to weigh the likelihood of an adequate signal against whether it wishes to incur the testing fee in the absence of an acceptable signal.

16. EchoStar requests that in the interest of efficiency we find it permissible for satellite providers to cause field intensity measurements to be made prior to the formalities of waiver request and possible denial anticipated in SHVIA. Specifically, EchoStar would have a field strength test occur during the same appointment with a potential subscriber as the antenna installation. Opponents argue, however, that EchoStar's proposal does not follow the three-event sequence for the procedure established in the SHVIA involving a waiver request, waiver denial, and then a request for an on-site test. NAB/MSTV further objects that EchoStar is proposing a “secret” test conducted by persons with “a direct financial stake in the outcome.” In reply, EchoStar explains that it is not proposing a secret test and that it proposes to use only an independent qualified tester, indeed, one that is examined and designated by the ARRL. Reiterating its concern for efficiency, EchoStar requests that we not preclude satellite service providers from conducting the test at an earlier stage in the process, “before or as soon as the consumer is predicted to be ineligible.”

17. While the procedure advocated by EchoStar may be more expeditious than the one established in the First Report and Order , and may provide the protections intended by the statute, it is not the procedure contemplated by the statute. The statute delineates a specific sequence of events preceding testing: waiver request, waiver denial, the subscriber's request for an on-site test, selection of a qualified tester by the satellite carrier and the network station, and then the on-site test, which the broadcaster must pay for if it establishes that the subscriber does not receive an adequate over-the-air signal. As EchoStar's proposed procedure does not follow this temporal sequence specified in the statute, the Commission denies its request.

18. We believe that EchoStar has raised a valid public interest concern with the efficiency of the process used to determine SHVIA eligibility. In this regard, we note that the Commission's call center has received numerous complaints from subscribers stating that their requests for on-site signal tests have been ignored or delayed continuously by both satellite carriers and broadcast stations. The statute demonstrates a concern for prompt resolution of reception controversies, as indicated in the thirty-day time limit for on-site testing. We note that the distant signal copyright protection provisions expire on December 31, 2004, and Congress is currently considering the extension of this provision of the SHVIA. Congress thus has the opportunity to adopt EchoStar's or any other modifications to these procedures when it enacts legislation to extend those provisions. In the interim, we are continuing to monitor the situation closely and expect that the satellite providers and local network affiliates will coordinate their efforts to implement the SHVIA provisions as Congress intended.

19. Finally, NAB/MSTV has requested that the broadcaster be given 10 days after a test notification to reconsider the waiver denial that led to the test request and to provide an opportunity for interested parties to observe the test. No party has advanced a persuasive reason why a broadcaster cannot make an adequately considered judgment when first presented with a waiver request. The independently determined qualifications of the tester should obviate the need to observe every test. Moreover, such a delayed second-chance procedure would seem, in fact, to provide a broadcaster with incentive to deny all waiver requests when first presented. Accordingly, this request by NAB is denied.

Pursuant to sections 1, 4(i), 4(j) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), and 154(j); Section 1008 of Pub. L. 106-113, 113 Stat. 1501, 1501A-526 to 1501A-545; and Section 119(d)(10)(a) of the Copyright Act, 17 U.S.C. 119(d)(10)(a), the petitions for reconsideration submitted by EchoStar Satellite Corporation and by the National Association of Broadcasters and Association for Maximum Service Television, Inc. are denied.

The Department's interim final rule made changes to the final rule it published in September 1998 (63 FR 51670). Specifically, the interim final rule removed the provision requiring compensation to passengers who do not receive required service, clarified the information collection requirements, postponed the date for bus companies to submit information on ridership on accessible fixed route service and the acquisition of buses, and designated a different address for regulated parties to submit the required information. The interim final rule also asked for comment on: (1) Should the Department reconsider its decision to allow extensive use of on-call bus service; (2) should the Department propose requiring acquisition of accessible buses in some situations where on-call service is not permitted; and (3) are there other ways of restoring the balance between the Department's objectives of ensuring accessible buses and service for passengers with disabilities and mitigating the economic impacts on small businesses.

The Department received five comments on its interim final rule. It received comments from the American Bus Association, the Paralyzed Veterans of America, Coach USA, Inc., the Disability Rights Education and Defense Fund and the Hawaii Disability and Communication Access Board. Generally, all of the comments supported a confirmation number for passengers requesting service. Only the Hawaii Disability and Communication Access Board seemed to disagree with the confirmation number approach because it advocates restricting the use of 48-hour on-call service. In any event, the DOT agrees with the majority of commenters that a confirmation number would be appropriate in certain situations. Thus, Over-the-Road Bus Companies (OTRB) may respond to a request for service in one of three ways. First, a copy of the Service Request Form can be mailed to the passenger the next business day after the request is received. Second, if the person making the request has email access, the OTRB can provide a confirmation number, which verifies that the Service Request Form has been filled-out electronically and the passenger will receive a paper copy of that request when she or he arrives for the service. Third, for passengers with facsimile machines, the OTRB can fax a copy of the Service Request Form twenty-four hours after receiving the request. If service is denied when the passenger arrives, then a completed form indicating the denial of service must be given to the passenger at that time. If service is denied before the passenger shows up for the requested service, then a completed form indicating the denial of service may be transmitted in one of the three ways outlined above.

The Paralyzed Veterans of America and the Disability Rights Education and Defense Fund noted that the interim final rule did not make the clarification that only one request has to be made for the entire trip (legs and return included). A clarification, however, was made in the interim final rule with the addition of the following language: “the passenger shall be required to make only one request, which covers all legs of the requested trip * * *” The DOT believes this is a sufficient clarification, and, therefore, that rule language will not be changed in this final rule.

The American Bus Association and Coach USA, Inc. commented that there is no legal justification for reconsidering the 48-hour rule simply because the compensation provision of the rule was judicially invalidated. Without commenting on the legal justification for reconsidering the 48-hour rule, it behooves the agency to allow the 48-hour rule to stand as written, with the exception of the minor changes made today, until compliance, or lack thereof, provides a greater need to reopen the rule. In other words, the Department believes that it will be better able to assess the effectiveness of these rules once it has sufficient data to analyze.

This rulemaking is not “significant” under Executive Order 12866 or the Department of Transportation's Regulatory Policies and Procedures because there are no costs and this final rule makes only minor changes.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule does not adopt any regulation that: (1) Has substantial direct effects on the States, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government; (2) imposes substantial direct compliance costs on State and local governments; or (3) preempts state law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not significantly or uniquely affect the communities of the Indian tribal governments and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13084 do not apply.

The Department has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities. In the Department's final rule published on September 28, 1998 (63 FR 51670), the Department analyzed the costs of this rule and the impact on small entities. This final rule makes minor changes regarding the way an OTRB provides notice to a passenger that a request for accessible service has been received. Since the costs of this rulemaking were previously analyzed, and this final rule makes minor changes that could reduce the paperwork burden on the OTRB industry, I hereby certify that this rule will not have significant economic impact on a substantial number of small entities.

As required by the Paperwork Reduction Act of 1995, the Department submitted an Information Collect Request to the Office of Management and Budget (OMB). We requested comments on our estimates in a Notice and Request for Comments published on February 5, 2002 (67 FR 5353). The Department received approval on the Information Collection Request from OMB and received an information collection number (OMB No. 2100-0019).

The West Indian manatee ( Trichechus manatus ) is federally listed as an endangered species under the ESA (16 U.S.C. 1531-1544) (32 FR 4001), and is further protected as a depleted stock under the MMPA (16 U.S.C. 1361-1407). The Florida manatee ( Trichechus manatus latirostris ), a subspecies of the West Indian manatee (Domning and Hayek 1986), lives in freshwater, brackish, and marine habitats in coastal and inland waterways of the southeastern United States. The majority of the population can be found in Florida waters throughout the year, and nearly all manatees use the waters of peninsular Florida during the winter months. During the winter months, most manatees rely on warm water from industrial discharges and natural springs for warmth. In warmer months, they expand their range and are occasionally seen as far north as Rhode Island on the Atlantic Coast and as far west as Texas on the Gulf Coast.

Collisions with watercraft are the largest cause of human-related manatee deaths. Data collected during manatee carcass salvage operations conducted in Florida from 1978 to 2002 indicate that a total of 1,145 manatees (from a total carcass count of 4,545) are confirmed victims of collisions with watercraft. This number may underestimate the actual number of watercraft-related mortalities since many of the mortalities listed as “undetermined causes” show evidence of collisions with vessels. Collisions with watercraft comprise approximately 25 percent of all manatee mortalities since 1978. Approximately 75 percent of all watercraft-related manatee mortality has taken place in 11 Florida counties: Brevard, Lee, Collier, Duval, Volusia, Broward, Palm Beach, Charlotte, Hillsborough, Citrus, and Sarasota (Florida Fish and Wildlife Conservation Commission (FWCC) 2003). Recent years have been record years for the number of watercraft-related mortalities. From 1998 to 2002 (2003 data from the FWCC Florida Marine Research Institute are still preliminary), 409 watercraft-related manatee deaths were recorded (36 percent of all watercraft-related deaths documented during the 1978 to 2002 period) (FWCC 2003).

To help prevent injuries and deaths associated with watercraft, we and the State of Florida (State) have designated manatee protection areas at sites throughout coastal Florida where conflicts between boats and manatees have been well documented and where manatees are known to frequently occur. Signs are posted in these areas to inform the boating public about restrictions and prohibitions.

Federal authority to establish protection areas for the Florida manatee is provided by the ESA and the MMPA, and is implemented in 50 CFR 17.100 et seq. We have discretion, by regulation, to establish manatee protection areas whenever substantial evidence shows that the establishment of such an area is necessary to prevent the taking of one or more manatees. Take, as defined by the ESA, means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt to engage in any such conduct. Harm, in the definition of take, means an act which kills or injures wildlife (50 CFR § 17.3). Such an act may include significant habitat modification or degradation that kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. Harass, in the definition of take, includes intentional or negligent acts or omissions that create the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering (50 CFR 17.3).

Take, as defined by the MMPA, means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. Harassment, as defined by the MMPA, means any act of pursuit, torment, or annoyance which, (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B] (16 U.S.C 1362).

We may establish two types of manatee protection areas: Manatee refuges and manatee sanctuaries. A manatee refuge is defined as an area in which we have determined certain waterborne activities would result in the taking of one or more manatees, or that certain waterborne activities must be restricted to prevent the taking of one or more manatees, including but not limited to, a taking by harassment (50 CFR 17.102). A manatee sanctuary is an area in which we have determined that any waterborne activity would result in the taking of one or more manatees, including but not limited to, a taking by harassment (50 CFR 17.102). A waterborne activity is defined as including, but not limited to, swimming, diving (including skin and scuba diving), snorkeling, water skiing, surfing, fishing, the use of water vehicles, and dredging and filling operations (50 CFR 17.102).

An extensive network of manatee speed zones and sanctuaries has been established throughout peninsular Florida by Federal, State, and local governments (Service 2001). This existing network supports our goal of providing adequate protected areas throughout peninsular Florida to satisfy the biological requirements of the species.

The timing and implementation of State and Federal manatee protection area designations have been influenced by decisions and settlements in State and Federal court cases and by the respective agencies and their ability to effectively post regulatory signage and enforce measures in a timely fashion. Pansy Bayou Manatee Refuge was identified by both the State and Federal governments as an area in need of protection. Neither agency was able to coordinate or communicate its intent to designate because such plans were part of confidential legal negotiations then in progress. As a result, we designated this site in November 2002, and the State subsequently designated this site in December 2002. Cocoa Beach Manatee Refuge was designated by the State in June 2002 and was subsequently designated by the Service in November 2002. The Service pursued its designation because the State had not yet posted regulatory signage at the site. Because the State has now designated and posted both sites as manatee protection areas, and is enforcing the protective regulations, and because the Service believes that State protection for both sites is now comparable to Federal protection, the Service is withdrawing its designations at these two sites. We are not withdrawing protections from other remaining Federal manatee refuges.

In Save the Manatee Club v. Ballard, Civil No. 00-00076 EGS (D.D.C., filed January 13, 2000), several organizations and individuals filed suit against the Service and the U.S. Army Corps of Engineers (Corps) alleging violations of the ESA, MMPA, National Environmental Policy Act, and the Administrative Procedure Act. Four groups representing development and boating interests intervened. Following extensive negotiations, a settlement agreement was approved by the court on January 5, 2001. In this settlement agreement, we agreed to submit a proposed rule for new refuges and sanctuaries to the Federal Register by April 2, 2001, and to submit a final rule by September 28, 2001.

Subsequent to the Federal settlement, the FWCC voted to settle Save the Manatee v. Egbert, Case No. 90-00-400CIV17-WS (N.D. Fla., filed January 13, 2000) (the State case). That settlement, which was entered into by the Court on November 7, 2001, calls for very similar protective measures in many of the locations included in our proposed rule. As a result of these simultaneous processes, the parties in the Federal lawsuit agreed to extend the April 2 deadline in an attempt to negotiate a means to avoid duplication of effort and better serve the public. Subsequent negotiations resulted in additional extensions, which resulted in the proposed rule being submitted to the Federal Register on August 3, 2001. (An advance notice of proposed rulemaking had been published in the Federal Register on September 1, 2000 [65 FR 53222], and six public workshops were held in December 2000, prior to approval of the Settlement Agreement.) The proposed rule was published in the Federal Register on August 10, 2001 (66 FR 42318). On January 7, 2002, we published a final rule designating two sites in Brevard County, the Barge Canal and Sykes Creek, as Federal manatee refuges (67 FR 680).

On July 9, 2002, the United States District Court for the District of Columbia ruled that the Federal Government violated the Settlement Agreement by failing to designate a sufficient number of refuges and sanctuaries throughout peninsular Florida. On August 1, 2002, the Court issued a remedial order requiring the Service to publish, by November 1, 2002, a final rule for new manatee refuges and sanctuaries throughout peninsular Florida. On September 20, 2002, we published an emergency rule designating seven sites as manatee refuges and sanctuaries on Florida's west coast for a period of 120 days (67 FR 59408). We submitted a final rule to the Federal Register on November 1, 2002, designating 13 manatee protection areas in Florida, including the sites previously designated under the emergency rule. The final rule was published on November 8, 2002 (67 FR 68450). We entered into a Stipulated Order wherein the Service agreed to submit to the Federal Register for publication a proposed rule for the designation of additional manatee protection areas. The proposed rule published April 4, 2003 (68 FR 16602), and on August 6, 2003, we published a final rule that designated three additional manatee protection areas (68 FR 46870). The requirements of the Stipulated Order have been met.

The sites that were designated in our final rule on November 8, 2002 (67 FR 68450), were selected prior to the disclosure of the terms of the proposed settlement in the State case. After the terms of the State settlement were disclosed, it became apparent that there would be overlap between potential State and Federal actions. However, prior to a final determination on potential State designations, the Service was required by Court Order to move forward with its final rule for the designation of additional manatee protection areas throughout peninsular Florida. We designated protection areas at these sites in accordance with the site selection process and criteria identified in our final rule (67 FR 68456) because State protections had not been implemented at these sites. Because the State has subsequently designated and/or implemented comparable measures for the Pansy Bayou Manatee Refuge and the Cocoa Beach Manatee Refuge, the Service believes it prudent to withdraw its Federal designation in these areas.

On November 8, 2002, we designated 13 manatee protection areas in Florida, including the Pansy Bayou Manatee Refuge in Sarasota County and the Cocoa Beach Manatee Refuge in Brevard County (67 FR 68450). The State has now designated both sites as manatee protection areas, has posted them, and enforces the protective regulations (68C-22.026, F.A.C., and 22.006, F.A.C., respectively). As such, both sites are currently protected under both Federal and State authorities. Federal and State restrictions are comparable in terms of areal extent (the roughly bounded area of the area being protected), duration, and type (year-round, slow speed), and each should prevent the taking of one or more manatees. In our November 8, 2002, rule (67 FR 68450), we stated that “if the State or counties implement measures at these sites that, in our view, provide comparable protection for manatees, we will consider withdrawing or modifying established designations through the rulemaking process.”

Because the State has now implemented measures that provide comparable protection and we believe that Federal designation is not necessary to prevent the taking of manatees, we proposed to withdraw our designations for the Pansy Bayou Manatee Refuge and the Cocoa Beach Manatee Refuge and defer to the State's regulations governing waterborne activities currently in effect in these areas (68C-22.026, F.A.C., and 22.006, F.A.C., respectively) on October 22, 2003 (68 FR 60316). In our proposed rule, we solicited public comments until November 21, 2003. The Service received a total of 11 comments on the proposed regulation: 9 comments in general support of this initiative and 2 opposed. Comments were received from the following: 3 peer reviewers; 2 State agencies; 3 conservation organizations; a marine industry association; a private business; and one private citizen.

Because the manatee remains listed under the ESA, and protected by the MMPA, we have the authority and responsibility to reinstate Federal protective measures should it become necessary. We recognize that the existing system of speed zones and sanctuaries has been established primarily by State and local governments. We also recognize the important role of our State and local partners, and we continue to support and encourage State and local measures to improve manatee protection.

The federally designated Pansy Bayou Manatee Refuge includes approximately 47 hectares (ha) (116.1 acres) in the northern Pansy Bayou area between City Island and the John Ringling Parkway Bridge on Sarasota Bay in Sarasota County and regulates vessel traffic to slow speed year-round (67 FR 68450) (see Pansy Bayou Manatee Refuge map). This refuge is located within a State manatee protection area in which all vessels are required by State law to operate at slow speed year-round (68C-22.026(2)(a)(4), F.A.C.).

This Federal Register document is available on the Government Printing Office's Web site at: www.gpoaccess.gov/fr/index.html.

Background information and documents are available at the NMFS Northwest Region Web site at: www.nwr.noaa.gov/1sustfsh/gdfsh01.htm and at the Pacific Fishery Management Council's Web site at: www.pcouncil.org.

The Pacific Coast Groundfish FMP and its implementing regulations at 50 CFR part 660, subpart G, regulate fishing for over 80 species of groundfish off the coast of Washington, Oregon, and California. Groundfish specifications and management measures are developed by the Pacific Fishery Management Council (Pacific Council) and are implemented by NMFS. The specifications and management measures for the 2004 fishing year (January 1—December 31, 2004) were initially published in the Federal Register as an emergency rule for January 1-February 29, 2004 (69 FR 1322, January 8, 2004) and as a proposed rule for March 1-December 31, 2004 (69 FR 1380, January 8, 2004). The emergency rule was amended at 69 FR 4084, January 28, 2004. The final rule for March 1-December 31, 2004 was published in the Federal Register on March 9, 2004 (69 FR 11064) and amended at 69 FR 23440, April 29, 2004, at 69 FR 25013, May 5, 2004, at 69 FR 28086, May 18, 2004, and at 69 FR 38857, June 29, 2004.

The following changes to current groundfish management measures were recommended by the Pacific Council, in consultation with Pacific Coast Treaty Tribes and the States of Washington, Oregon, and California, at its June 13-18, 2004, meeting in Foster City, CA. Inseason adjustments to limited entry trawl and fixed gear management measures are in response to groundfish landings through the end of April and projected catch through the end of the year. Adjusted management measures are intended to: (1) Allow groundfish optimum yields (OYs) to be achieved but not exceeded, (2) reduce the discard of overfished species by providing for incidental catch allowances in target fisheries for abundant groundfish species, (3) clarify limited entry trawl differential trip limits, (4) adjust limited entry trawl gear requirements, and (5) revise both the 75 fm (137 m) and 150 fm (274 m) rockfish conservation area boundaries so that they more closely follow their respective depth contours. Pacific Coast groundfish landings will be monitored throughout the year, and further adjustments to trip limits or management measures will be made as necessary to allow the achievement of or to avoid exceeding the 2004 OYs.

Differential limited entry trawl trip limits have been used as a fisheries management tool in the Pacific Coast groundfish fishery since 2000. Initially, higher trip limits were available if fishers used small footrope or midwater gear, as opposed to large footrope gear, during harvesting. Generally, neither small footrope or midwater gear are useful for trawling the ocean floor in areas of high relief, rocky habitat. Encouraging the use of these gear types was intended to decrease the catch of certain rockfish species associated with the ocean floor and to protect rocky habitat. When rockfish conservation areas (RCAs) were established in 2003, NMFS slightly modified the intent and application of differential trawl trip limits. As of 2003, the use of small footrope and/or midwater gear has been permitted both shoreward and seaward of the RCA coastwide, while the use of large footrope gear has only been permitted seaward of the RCA coastwide. Certain overfished species, specifically canary rockfish, require low harvest levels for rebuilding and are more likely to be encountered shoreward of the trawl RCA than seaward of the trawl RCA. In 2003, management measures were designed in part to discourage trawling on the ocean floor shoreward of the RCA and encourage fishing seaward of the RCA and/or the use of midwater trawl gear. For 2003, higher trip limits were available seaward of the RCA if fishers used large footrope or midwater trawl gear rather than small footrope trawl gear. In the area between the U.S./Canada border and 40°10′ N. lat., higher trip limits were available if fishers used large footrope or midwater trawl gear during 2004, with large footrope gear permitted only seaward of the RCA. Because canary rockfish are less frequently encountered by trawl fisheries in the area between 40°10′ N. lat. and the U.S./Mexico border, differential trip limits vary on a species by species basis and encourage fishing both shoreward and seaward of the RCA.

At the June Pacific Council meeting, the Pacific Council's Groundfish Management Team (GMT) discussed the intent and application of differential trip limits. They clarified that in the area between the U.S./Canada border and 40°10′ N. lat. midwater trawl gear should only be used in the Pacific whiting fishery and that midwater trawl trip limits were only intended as incidental catch allowances in the whiting fishery. In order to discourage the use of midwater trawl gear shoreward of the RCA in the area between the U.S./Canada border and 40°10′ N. lat. and restore the intent of midwater trawl trip limits, the GMT recommended removing midwater trawl trip limits for groundfish species not associated with the whiting fishery. Widow rockfish, an overfished species, and yellowtail rockfish are encountered in the whiting fishery. Incidental catch allowances for these two species minimizes the harvest of widow rockfish by discouraging directed fishing for these species while reducing groundfish discard by allowing the landing of widow and yellowtail rockfish encountered in the whiting fishery. The Pacific Council concurred with the GMT's recommendation, therefore, midwater trip limits will be removed from Table 3 (North) for all groundfish species except whiting, widow rockfish, and yellowtail rockfish. The GMT also identified for 2004 that offering low trip limits for small footrope and/or midwater trawl gear, in the area between 40°10′ N. lat. and the U.S./Mexico border, does not provide for a midwater chilipepper fishery seaward of the RCA (for more information see the discussion below under Limited Entry Trawl Chilipepper Trip Limit heading). Therefore, the GMT recommended that higher trip limits be contingent upon the use of large footrope and/or midwater trawl gear seaward of the RCA for the remainder of the year. To ensure consistency with the chilipepper fishery and enhance the enforceability of differential trip limits south of 40°10′ N. lat., higher trip limits offered for bocaccio, lingcod, and minor shelf and widow rockfish will be contingent upon the use of large footrope and/or midwater trawl gear seaward of the RCA (for more information see discussion below under Incidental Catch Allowances in the Limited Entry Trawl Fishery heading).

In order to further encourage trawling seaward rather than shoreward of the RCA, thereby limiting the harvest of canary rockfish, NMFS also implemented another requirement associated with differential trawl trip limits coastwide in 2003. If fishers used small footrope trawl gear at any time or in any area coastwide during a two-month cumulative limit period, they would be restricted to the more restrictive, smaller trip limits available with small footrope gear for the two-month cumulative limit period. The GMT reviewed the intent and application of this differential trip limit requirement at the June Pacific Council meeting and found this requirement to be unnecessarily restrictive. This requirement was primarily developed to limit the harvest of canary rockfish. While canary rockfish are distributed coastwide, the stock is more concentrated in the area between the U.S./Canada border and 40°10′ N. lat. Therefore, the GMT recommended, and the Pacific Council concurred with, the requirement that if fishers use small footrope trawl gear north of 40°10′ N. lat. any time during a two-month cumulative limit period, they would be restricted to the more restrictive, smaller trip limits available with small footrope gear for the two-month cumulative limit period. However, the Pacific Council also recommended that if vessels do not use small footrope trawl gear north of 40°10′ N. lat., vessels are not restricted to the more restrictive, smaller trip limits available with small footrope gear for the two-month cumulative limit period. Additionally, for the area north of 40°10′ N. lat., the Pacific Council recommended that on non-whiting trips, vessels with both large footrope and midwater trawl gear on board during a trip may land the large footrope limits while fishing with large footrope gear seaward of the RCA should be added. In the area south of 40°10′ N. lat., vessels may have more than one type of limited entry bottom trawl gear on board, but the most restrictive trip limit associated with the gear on board applies for that trip and will count toward the cumulative trip limit for that gear. For clarification, the Pacific Council recommended that language be added stating that for vessels using more than one type of trawl gear during a cumulative limit period, limits are additive up to the largest limit for the type of gear used during that period. For example, if a vessel harvests 800 lb (363 kg) of chilipepper rockfish with small footrope gear, it may harvest up to 11,200 lb (5,080 kg) of chilipepper rockfish with large footrope gear during July and August. These differential trip limit changes are reflected in the limited entry trawl trip limit tables (Table 3(North) and Table 3(South)).

At the beginning of 2004, NMFS took precautionary measures and set relatively low limited entry trawl trip limits pending new trawl bycatch model catch predictions. NMFS updated trawl bycatch model catch predictions by incorporating additional West Coast Observer Program data (2002-2003) and by adjusting for the limited entry trawl permit and vessel buyback. Based on these updated trawl catch predictions, NMFS increased the limited entry trawl trip limits for the remainder of 2004 (69 FR 28086, May 18, 2004).

Following the increased limited entry trawl trip limits effective in May, landings reported in the Pacific Coast Fisheries Information Network (PacFIN) were higher than predicted for Dover sole, shortspine thornyhead, sablefish, and petrale sole. In order to slow the fishery and allow for year-around trawling opportunities, the Council recommended that trip limits be lowered for these species.

When the 2004 trawl trip limits for flatfish were developed, NMFS's intent was to include the petrale sole trip limit as a sublimit of the “other flatfish” trip limit. However, in both the emergency rule (69 FR 1322, January 8, 2004) implementing groundfish specifications and management measures for January-February and the final rule (69 FR 11064, March 9, 2004) implementing management measures for March-December, both petrale sole and “other flatfish” had independent trip limits. As mentioned above, the catch of petrale sole is tracking higher than predicted in PacFIN through the end of April. Therefore, the Pacific Council recommended that the petrale sole trip limit be incorporated as a sublimit of the “other flatfish” limit with this inseason action as was NMFS's intent at the beginning of the year, as well as reducing the trip limit.

Given the above recommendations, in the area between the U.S./Canada border and 40°10′ N. lat., the adjusted trip limits for sablefish, shortspine thornyhead, Dover sole, petrale sole, and “other flatfish” are as follows. The limited entry trawl large footrope trip limit for sablefish will be decreased from 16,000 lb (7,257 kg) per two months to 15,000 lb (6,804 kg) per two months for July-October. The previously scheduled November-December large footrope sablefish trip limit of 11,000 lb (4,990 kg) per two months remains unchanged. The limited entry trawl large footrope trip limit for shortspine thornyhead will be decreased from 4,500 lb (2,041 kg) per two months to 4,100 lb (1,860 kg) per two months for July-December. The limited entry trawl large footrope trip limit for Dover sole will be decreased from 32,000 lb (14,515 kg) per two months to 31,000 lb (13,801 kg) per two months for July-October. The previously scheduled November-December large footrope Dover sole trip limit of 50,000 lb (22,680 kg) per two months remains unchanged. The limited entry trawl large footrope trip limit for petrale sole will be decreased from 100,000 lb (45,359 kg) per two months to a combined “other flatfish” large footrope limit of 100,000 lb (45,359 kg) per two months, no more than 30,000 lb (13,608 kg) of which may be petrale sole, for July-October. As was previously scheduled for November-December, the harvest of petrale sole with large footrope gear will not be limited. The limited entry trawl small footrope trip limit for “other flatfish” will be decreased from 80,000 lb (36,287 kg) per two months, no more than 30,000 lb (13,608 kg) of which may be petrale sole, to 80,000 lb (36,287 kg) per two months, no more than 26,000 lb (11,793 kg) of which may be petrale sole, for July-October. The previously scheduled November-December small footrope “other flatfish” trip limit of 70,000 lb (31,752 kg) per two months, no more than 20,000 lb (9,072 kg) of which may be petrale sole, remains unchanged.

In the area between 40°10′ N. lat. and the U.S./Mexico border, the adjusted trip limits for sablefish, shortspine thornyhead, and Dover sole are as follows. The limited entry trawl trip limit for sablefish will be decreased from 14,500 lb (6,577 kg) per two months to 13,000 lb (5,897 kg) per two months for July-December. The limited entry trawl trip limit for shortspine thornyhead will be decreased from 4,500 lb (2,041 kg) per two months to 4,100 lb (1,860 kg) per two months for July-December. The limited entry trawl trip limit for Dover sole will be decreased from 49,000 lb (22,226 kg) per two months to 48,000 lb (21,772 kg) per two months for July-October. The previously scheduled November-December Dover sole trip limit of 49,000 lb (22,226 kg) per two months remains unchanged.

Because chilipepper rockfish (an abundant groundfish species) and bocaccio (an overfished groundfish species) are co-occurring species, limited entry trawl limits for chilipepper rockfish were incorporated as part of minor shelf rockfish limits in 2003 to eliminate all targeting opportunities for chilipepper where bocaccio may have been incidentally taken. The 2004 bocaccio OY (250 mt) was set higher than the 2003 bocaccio OY (≤ 20 mt) following a new stock assessment. With a higher bocaccio OY in 2004, conservative targeting opportunities for chilipepper were restored.

At the June Pacific Council meeting, the GMT received a request from the Pacific Council's Groundfish Advisory Panel (GAP) that trip limits in Table 3 (South) allow for a midwater chilipepper fishery seaward of the RCA. The previously scheduled midwater trawl and/or small footrope chilipepper limit was low (300 lb (136 kg) per two months) to allow for incidental catch while discouraging fishing shoreward of the RCA. By specifying that midwater trawl gear may not be used shoreward of the RCA south of 40°10′ N. lat., midwater trip limits are available only seaward of the RCA and may be increased to be equivalent to the limits available using large footrope trawl gear. Therefore, the GMT recommended and the Pacific Council concurred that the limited entry trawl midwater limit for chilipepper be increased from 300 lb (136 kg) per month to the previously scheduled large footrope limit of 12,000 lb (5,443 kg) per two months during July-August and 8,000 lb (3,629 kg) per two months for September-December. Additionally, the California Department of Fish and Game (CDFG) recommended and the Pacific Council concurred that the limited entry trawl small footrope limit for minor shelf, widow, and chilipepper rockfish be increased from 300 lb (136 kg) per month to 1,000 lb (454 kg) per month, no more than 200 lb (90 kg) per month of which may be minor shelf and widow rockfish. These trip limit adjustments will provide much needed revenue for the limited entry trawl fleet without resulting in excessive catch of bocaccio.

When developing the 2004 groundfish management measures and specifications in the fall of 2003, it was NMFS's intention to prohibit the directed widow rockfish and yellowtail rockfish midwater trawl fishery during November-December. This action is necessary to prohibit the directed widow rockfish midwater fishery during November-December because the 2004 widow rockfish OY is intended to allow for the incidental catch of widow rockfish, but it cannot accommodate a directed fishery. Because widow and canary rockfish are known to co-occur with yellowtail rockfish, it is necessary to also prohibit the directed yellowtail rockfish midwater fishery during November and December to keep the harvest of widow and canary rockfish within their 2004 OYs. Therefore, the Pacific Council recommended that the limited entry trawl trip limit Table 3 (North) be adjusted to prohibit the directed midwater fishery for widow rockfish and yellowtail rockfish during November-December.

Harvest levels for overfished groundfish species are developed using each species' rebuilding plan specifications. Trip limits for overfished species are generally low and designed to allow overfished stocks to rebuild while allowing for the incidental catch of overfished species during the harvesting of co-occurring abundant groundfish species. These trip limits are not intended to provide for directed fishing on overfished stocks.

At the June Pacific Council meeting, the GMT received feedback from the GAP that some limited entry trawl limits for overfished species are not adequate to provide incidental catch allowances in the limited entry trawl fishery and are resulting in discard. In May 2004, NMFS implemented limited entry trawl increases for DTS (Dover sole, thornyheads, sablefish) species and chilipepper rockfish (69 FR 28086, May 18, 2004). Based on those trip limit increases, the GMT determined that trip limits for lingcod and widow rockfish, could be increased to accommodate incidental catch in the DTS fishery. Similarly, trip limits for bocaccio could be increased to allow for the incidental catch in the chilipepper fishery. Incorporating the previously discussed inseason adjustments to differential trip limits, the Pacific Council recommended the following trip limit increases.

In the area between the U.S./Canada border and 40°10′ N. lat., the limited entry trawl large footrope trip limit for lingcod will be 500 lb (227 kg) per two months for July-December. In the area between 40°10′ N. lat. and the U.S./Mexico border, the limited entry trawl large footrope and midwater trip limit for lingcod will be 500 lb (227 kg) per two months for July-December. Previously, the retention of lingcod with large footrope or midwater trawl gear was prohibited coastwide. In the area between the U.S./Canada border and 40°10′ N. lat., the limited entry trawl large footrope trip limit for minor shelf and widow rockfish will be 300 lb (136 kg) per two months for July-December. Similar to the previously scheduled lingcod limit, the retention of minor shelf and widow rockfish was prohibited. In the area between 40°10′ N. lat. and the U.S./Mexico border, the limited entry trawl large footrope and midwater trip limit for bocaccio will be increased from 100 lb (45 kg) per two months to 300 lb (136 kg) per two months for July-December. These limited entry trawl trip limit increases will reduce discard in the Pacific Coast groundfish fisheries and enable the OYs for DTS species and chilipepper rockfish to be achieved but not exceeded while continuing to allow for the rebuilding of overfished stocks.

In keeping with bocaccio trip limit increases in the limited entry trawl fishery, to accommodate incidental catch in the chilipepper fishery, the Pacific Council also recommended increasing the fixed gear bocaccio trip limit for the remainder of the year. Therefore, in the area between 40°10′ N. lat. and 34°27′ N. lat., the limited entry fixed gear limit for bocaccio will be increased from 100 lb (45 kg) per two months during July-August and 200 lb (90 kg) per two months during September-December to 300 lb (136 kg) per two months for the remainder of the year. Neither this inseason adjustment nor any other inseason adjustments are predicted to cause the total mortality of bocaccio to exceed its 2004 OY.

During the June Pacific Council meeting, Washington Department of Fish and Wildlife (WDFW) and CDFG requested adjustments to RCA boundaries. CDFG requested adjustments to specific latitude and longitude coordinates in the 75 fm (137 m) RCA boundary to allow the RCA to more closely follow the 75 fm (137 m) depth contour and allow access to sandy areas for sanddab fishing in California's Half Moon Bay area. This request was included in the GMT's statement on inseason actions and recommended by the Pacific Council. Additionally, WDFW requested adjustments to the 150 fm (274 m) RCA boundary off Washington so that it would more closely follow the 150 fm (274 m) depth contour and would be similar to Washington's Winter Petrale RCA boundary (which also follows the 150 fm (137 m) depth contour). WDFW's request was made to NMFS directly and was not included in the GMT statement or Pacific Council recommendation. NMFS will implement both adjustments to the RCA boundaries with this inseason action.

For the reasons stated herein, NMFS concurs with the Pacific Council's recommendations and hereby announces the following changes to the 2004 specifications and management measures (69 FR 11064, March 9, 2004, as amended at 69 FR 23440, April 29, 2004, at 69 FR 25013, May 5, 2004, at 69 FR 28086, May 18, 2004, and at 69 FR 38857, June 29, 2004) to read as follows:

1. On page 11087, in section IV. NMFS Actions, under A. General Definitions and Provisions, revise paragraphs (14)(b)(ii) and (iii) to read as follows:

The Regional Administrator modified the season for the commercial salmon fishery in the area from the Humbug Mountain, OR to the Oregon-California Border to close at midnight on Saturday, June 19, 2004. On June 18 the Regional Administrator determined that available catch and effort data indicated that the quota of 2,600 chinook salmon would be reached by midnight on Saturday, June 19, 2004. Automatic season closures based on quotas are authorized by regulations at 50 CFR 660.409(a)(1).

In the 2004 annual management measures for ocean salmon fisheries (69 FR 25026, May 5, 2004), NMFS announced the commercial fishery for all salmon except coho in the area from Humbug Mountain, OR, to the Oregon-California Border would open March 15 through May 31; June 1 through the earlier of June 30 or a 2,600-chinook quota; July 1 through the earlier of July 31 or a 1,600-chinook quota; August 1 through the earlier of August 29 or a 2,500-chinook quota; and September 1 through the earlier of September 30 or a 3,000-chinook quota.

On June 18, 2004, the Regional Administrator consulted with representatives of the Pacific Fishery Management Council and Oregon Department of Fish and Wildlife by conference call. Information related to catch to date, the chinook catch rate, and effort data indicated that it was likely that the chinook quota would be reached by Saturday, June 19. As a result, the State of Oregon recommended, and the Regional Administrator concurred, that the area from Humbug Mountain, OR to the Oregon-California Border close effective at midnight on Saturday, June 19, 2004. All other restrictions that apply to this fishery remained in effect as announced in the 2004 annual management measures.

The Regional Administrator determined that the best available information indicated that the catch and effort data, and projections, supported the above inseason action recommended by the state. The states manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone in accordance with this Federal action. As provided by the inseason notice procedures of 50 CFR 660.411, actual notice to fishers of the above described action was given prior to the time this action was effective by telephone hotline number 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

This action does not apply to other fisheries that may be operating in other areas.

The Assistant Administrator for Fisheries, NOAA (AA), finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B) because such notification would be impracticable. As previously noted, actual notice of this action was provided to fishers through telephone hotline and radio notification. This action complies with the requirements of the annual management measures for ocean salmon fisheries (69 FR 25026, May 5, 2004), the West Coast Salmon Plan, and regulations implementing the West Coast Salmon Plan 50 CFR 660.409 and 660.411. Prior notice and opportunity for public comment was impracticable because NMFS and the state agency have insufficient time to provide for prior notice and the opportunity for public comment between the time the fishery catch and effort data are collected to determine the extent of the fisheries, and the time the fishery closure must be implemented to avoid exceeding the quota. Because of the rate of harvest in this fishery, failure to close the fishery upon attainment of the quota would allow the quota to be exceeded, resulting in fewer spawning fish and possibly reduced yield of the stocks in the future. For the same reasons, the AA also finds good cause to waive the 30-day delay in effectiveness required under U.S.C. 553(d)(3).

This action is authorized by 50 CFR 660.409 and 660.411 and is exempt from review under Executive Order 12866.