This interim rule affects aliens who are required to apply for employment authorization or, if employment authorized incident to immigration status, to apply for evidence of employment authorization. This interim rule also affects aliens who have been granted asylum by EOIR and wish to obtain evidence of employment authorization.

Under 8 CFR 274a.12(a), certain aliens are authorized employment incident to their immigration status ( e.g. , lawful permanent residents, lawful temporary residents, parolees, aliens in Temporary Protected Status, etc.). Such aliens are eligible to work in the United States regardless of whether they receive an EAD. However, these aliens must apply to BCIS to receive an EAD evidencing their employment authorization. Under 8 CFR 274a.12(c), certain aliens are required to apply for employment authorization before they may begin to work in the U.S. ( e.g. , students seeking to perform optical practical training, aliens with pending applications for adjustment of status, etc.). Such aliens must apply to BCIS to receive an EAD authorizing them to work in the United States, as well as evidencing the fact that they are employment authorized.

With limited exceptions, most classes of aliens who are employment authorized under 8 CFR 274a.12(a) or 274a.12(c) are required to apply for employment authorization using the Form I-765, Application for Employment Authorization. If BCIS approves the Form I-765, it will issue an EAD. For certain categories, the current regulations specifically limit the EAD validity period to one-year increments. In all other instances, and with limited exceptions, BCIS through policy has set EAD validity periods at one year.

These regulatory and policy limitations often require an alien whose underlying status is longer than one year, or whose underlying application will remain pending with BCIS for longer than one year, to apply for renewal of the EAD every year, creating a burden on the applicant and an additional workload for BCIS. This rule gives BCIS the discretion and flexibility to modify EAD validity periods for initial, renewal, and replacement cards. BCIS also will establish EAD validity periods for classes of aliens and will preserve the discretion to establish validity periods of varying lengths for individuals within those classes whose cases warrant a lesser validity period. BCIS will issue field guidance to ensure that adjudicators use standard criteria when exercising their discretion in establishing EAD validity periods.

For aliens who are employment authorized incident to status, BCIS does not contemplate issuing employment authorization documents that would expire only upon expiration of the alien's status. BCIS must reserve the right to periodically expire such documents and, where appropriate, issue new cards. This will allow BCIS to address any security concerns and to ensure the integrity of the EADs process by preventing fraud or misuse of such documents. BCIS intends to review all classes of aliens who are employment authorized to determine a general validity period for each class. For example, currently BCIS issues permanent resident cards (Form I-551) with ten-year validity periods. Similarly, BCIS intends to issue EADs to asylees with a validity period of five years, unless otherwise appropriate. An expiration date on the card reflects only that the card must be renewed, not that the bearer's work authorization has expired.

This interim rule amends 8 CFR 274a.12(a) and (c) to eliminate provisions in the regulations that provide a maximum validity period for certain EADs. This rule also amends 8 CFR 274a.12(a)(5) to reflect that BCIS will issue initial EADs to aliens granted asylum by the EOIR with validity periods of up to five years, unless otherwise appropriate.

The Department of Homeland Security (DHS) has determined that good cause exists under 5 U.S.C. 553(b)(B) and (d)(3) to make this rule effective July 30, 2004, for the following reasons: BCIS is modifying the regulations at 8 CFR 274a.12(a)(5) and 274a.13(a) to facilitate BCIS’ immediate compliance with its statutory obligation under the Enhanced Border Security and Visa Entry Reform Act (“Border Security Act”), Pub. L. 107-173, 116 Stat. 543, 556-57; 8 U.S.C. 1158(c)(1)(B), which became effective in May 2002. The Border Security Act requires BCIS to provide asylees with initial evidence of employment authorization. BCIS also is removing the regulatory limitations on certain classes of one-year maximum validity periods to allow BCIS to set more flexible EAD periods. In certain instances, BCIS will be able to set validity periods for longer than one year, thereby benefiting the aliens and reducing BCIS workload associated with yearly EAD issuance. The delay in the implementation of this interim rule for consideration of public comments prior to the effective date of the rule will serve only to increase the current backlog of EAD applications. Accordingly, DHS finds that it would be impracticable and contrary to the public interest to delay the implementation of this rule to allow the prior notice and comment period normally required under 5 U.S.C. 553(b)(B) and(d)(3). DHS nevertheless invites written comments on this interim rule and will consider any timely comments in preparing a final rule.

This rule will have a positive significant economic impact on a substantial number of small businesses described in the Regulatory Flexibility Act at 5 U.S.C. 605.

With this rule, DHS addresses security concerns and improves BCIS efficiency by giving BCIS more flexibility in determining the appropriate validity period for EADs. Due to security concerns, DHS does not wish to have EADs issued with a validity period that is significantly longer than the immigration status or processing time of the application that the EAD is based upon. However, the validity period needs to be long enough to significantly lessen the burden created by the filing, adjudication, and issuance of EAD renewals. Removing this burden will allow BCIS to better focus its policy and resources upon improving the security and integrity of EADs and the security, integrity, and efficiency of BCIS application processes.

In accordance with the President's long-term goal of a standard BCIS application processing time of six months, this rule is forward-looking, giving BCIS the flexibility to lessen the validity period of affected EADs as BCIS processing times make progress toward and then reach the President's goal.

Considering all of these factors, DHS believes that a flexible validity period established by policy and taking into account security considerations, application processing times, and other factors is more appropriate than the inflexible validity periods contained in the regulatory provisions in place prior to this interim rule.

This change will decrease costs for affected applicants in so far as they will be required to pay the $175 filing fee for the I-765, Application for Employment Authorization, in order to renew their EAD less frequently or, in some situations, not at all.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule is considered by DHS to be an economically significant regulatory action under Executive Order 12866, section 3(f), Regulatory Planning and Review.

Obtaining and then presenting an EAD to an employer is how many aliens verify their identity and employment authorization as required by Form I-9, Employment Eligibility Verification. To obtain an EAD, an applicant must submit a Form I-765, Application for Employment Authorization Document, to the appropriate BCIS service center or district office, along with a $175 fee or request for a fee waiver. The fee is necessary to comply with Public Law 100-459, which requires BCIS to prescribe and collect fees to recover the full cost of processing immigration and naturalization applications, petitions, and associated support benefits. An applicant who cannot afford to pay the fee may submit a fee waiver request by following the instructions in 8 CFR 103.7(c). Therefore, the cost of filing each EAD renewal application is approximately $175.

This regulation removes regulatory provisions limiting the validity period for some EADs. At present, BCIS receives more than 950,000 Form I-765 applications for EAD renewal per year. The removal of the regulatory provisions limiting EADs to no more than one year of validity will have no effect by itself. However, there would be an economically significant benefit stemming from the projected BCIS policy change to a process where the validity period of these and certain other EAD categories are established based on based upon security concerns, the underlying application or status, and other appropriate factors.

This policy change would reduce the number of Form I-765 applications for EAD renewal in the future. BCIS cannot yet estimate the magnitude of this reduction because the policy change is still under development. However, BCIS does plan to compensate for the lack of a yearly EAD renewal application from affected aliens by ensuring that certain security and background checks are generally completed prior to issuance of EAD that is valid for more than one year.

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting or recordkeeping requirements inherent in a final rule. This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act. However, as previously stated under Executive Order 12866, the DHS anticipates that as a result of this regulation there will be a reduction in the number of Form I-765 submissions. Accordingly, BCIS has submitted the Paperwork Reduction Change Worksheet (OMB-83C) to the OMB reflecting the reduction in burden hours for Form I-765 and the OMB has approved the changes.

In FR Doc 04-10066 appearing on page 29192 in the Federal Register of Friday, May 21, 2004, the SBA published a final rule amending its size regulations. In response to inquiries, SBA is issuing this notice to clarify application of the effective date, by modifying the applicability date section of the final rule. The final rule remains effective on June 21, 2004. The amendments apply to all solicitations issued on or after the effective date, as well as all applications for financial or other assistance pending as of or submitted to the SBA on or after the effective date. However, the amendments will apply to all follow-on or contract renewals and size representations submitted as part of an order issued pursuant to a contract (if the Contracting Officer has reserved the order for small businesses and requested a size certification) on or after December 21, 2004. Further, it will apply to all novation and change-of-name agreements executed pursuant to FAR 42.21 on or after December 21, 2004. The SBA believes it is necessary to delay applicability of this rule for such situations because some novations may be in the progress of completion, but not yet completed at this time and this change in applicability date will not hinder the progress of such agreements.

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance.

Interested persons are invited to submit such written data, views, or arguments, as they may desire. Communications should identify the regulatory docket or notice number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. CE208.” The postcard will be date stamped and returned to the commenter.

These special conditions are being issued as part of the validation process for an existing Canadian STC for the Cheyenne, which is currently approved under TC No. A8EA. The proposed modification incorporates a novel or unusual design feature, such as digital avionics consisting of an EFIS and an ADAHRS that is vulnerable to HIRF external to the airplane.

Under the provisions of 14 CFR 21.101, The Marinvent Corporation must show that the Piper Cheyenne PA-31T, PA-31T1, and PA-31T2 aircraft meet the original certification basis for each model, as listed in type certificate (TC) data sheet A8EA, as follows:

CAR 3, effective May 15, 1956, through Amendment 3-8, effective December 18, 1962; and 14 CFR 23.205, 23.1545, 23.1563 and 23.1585, as amended by Amendment 23-3, effective November 11, 1965; and § 23.1557(c), as amended by Amendment 23-7, effective September 14, 1969. Eastern Region Engineering and Manufacturing Branch letter dated December 6, 1965, addresses the showing of equivalent safety for CAR 3.682, 3.771, and 3.772.

In addition:

Model PA-31T: Special Conditions Nos. 23-3-EA-1, Docket No. 9245, including Amendment No. 1 and AEA-210 letter dated November 11, 1971, and 14 CFR 23.991 as amended by Amendment 23-7, effective September 14, 1969.

Model PA-31T1: Special Conditions No. 23-3-EA-1, Docket No. 9245, including Amendment No. 1 and AEA-210 letter dated November 11, 1971, as amended by AEA-210 letter dated February 1, 1978, referring to Amendment 23-14 and § 23.991 as amended by Amendment 23-7, effective September 14, 1969, and SFAR 27 (Fuel Venting).

Model PA-31T2: Special Conditions No. 23-3-EA-1, Docket No. 9245, including Amendment No. 1 and AEA-210 letter dated November 11, 1971, as amended by AEA-210 letter dated February 1, 1978, referring to Amendment 23-14 and 14 CFR 23.991 as amended by Amendment 23-7, effective September 14, 1969. Noise Certification—14 CFR, part 36 up to Amendment 10, as applicable. Fuel Venting Emissions—SFAR 27 up to Amendment 3, as applicable.The Marinvent Corporation must also show that the Piper Cheyenne PA-31T, PA-31T1, and PA-31T2 aircraft meet the applicable regulations in effect for certification of the Meggit Magic EFIS and ADAHRS, including 14 CFR 23.1301, as amended by Amendment 23-20; §§ 23.1309, 23.1311, and 23.1321, as amended by Amendment 23-49; exemptions, if any; and the special conditions adopted by this rulemaking action.

If the Administrator finds that the applicable airworthiness standards do not contain adequate or appropriate safety standards because of novel or unusual design features of an airplane, special conditions are prescribed under the provisions of § 21.16.

Special conditions, as appropriate, as defined in § 11.19, are issued in accordance with § 11.38 after public notice and become part of the type certification basis in accordance with § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model already included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101.

The Marinvent Corporation plans to incorporate certain novel and unusual design features into airplanes for which the airworthiness standards do not contain adequate or appropriate safety standards for protection from the effects of HIRF. These features include EFIS, which are susceptible to the HIRF environment, that were not envisaged by the existing regulations for this type of airplane.

Protection of Systems from High Intensity Radiated Fields (HIRF): Recent advances in technology have given rise to the application in aircraft designs of advanced electrical and electronic systems that perform functions required for continued safe flight and landing. Due to the use of sensitive solid-state advanced components in analog and digital electronics circuits, these advanced systems are readily responsive to the transient effects of induced electrical current and voltage caused by the HIRF. The HIRF can degrade electronic systems performance by damaging components or upsetting system functions.

Furthermore, the HIRF environment has undergone a transformation that was not foreseen when the current requirements were developed. Higher energy levels are radiated from transmitters that are used for radar, radio, and television. Also, the number of transmitters has increased significantly. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling to cockpit-installed equipment through the cockpit window apertures is undefined.

The combined effect of the technological advances in airplane design and the changing environment has resulted in an increased level of vulnerability of electrical and electronic systems required for the continued safe flight and landing of the airplane. Effective measures against the effects of exposure to HIRF must be provided by the design and installation of these systems. The accepted maximum energy levels in which civilian airplane system installations must be capable of operating safely are based on surveys and analysis of existing radio frequency emitters. These special conditions require that the airplane be evaluated under these energy levels for the protection of the electronic system and its associated wiring harness. These external threat levels, which are lower than previous required values, are believed to represent the worst case to which an airplane would be exposed in the operating environment.

These special conditions require qualification of systems that perform critical functions, as installed in aircraft, to the defined HIRF environment in paragraph 1 or, as an option to a fixed value using laboratory tests, in paragraph 2, as follows:

(1) The applicant may demonstrate that the operation and operational capability of the installed electrical and electronic systems that perform critical functions are not adversely affected when the aircraft is exposed to the HIRF environment defined below:

(2) The applicant may demonstrate by a system test and analysis that the electrical and electronic systems that perform critical functions can withstand a minimum threat of 100 volts per meter, electrical field strength, from 10 kHz to 18 GHz. When using this test to show compliance with the HIRF requirements, no credit is given for signal attenuation due to installation.

A preliminary hazard analysis must be performed by the applicant, for approval by the FAA, to identify either electrical or electronic systems that perform critical functions. The term “critical” functions means those whose failure would contribute to, or cause, a failure condition that would prevent the continued safe flight and landing of the airplane. The systems identified by the hazard analysis that perform critical functions are candidates for the application of HIRF requirements. A system may perform both critical and non-critical functions. Primary electronic flight display systems, and their associated components, perform critical functions such as attitude, altitude, and airspeed indication. The HIRF requirements apply only to critical functions.

Compliance with HIRF requirements may be demonstrated by tests, analysis, models, similarity with existing systems, or any combination of these. Service experience alone is not acceptable since normal flight operations may not include an exposure to the HIRF environment. Reliance on a system with similar design features for redundancy as a means of protection against the effects of external HIRF is generally insufficient since all elements of a redundant system are likely to be exposed to the fields concurrently.

As discussed above, these special conditions are applicable to the Piper Cheyenne PA-31T, PA-31T1, PA-31T2 airplanes. Should Marinvent apply at a later date for a supplemental type certificate to modify any other model on the same type certificate (A8EA) to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features on the models listed. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

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

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Piper Cheyenne PA-31T, PA-31T1, and PA-31T2 airplanes modified by Marinvent to add an EFIS and an ADAHARS.

1. Protection of Electrical and Electronic Systems From High Intensity Radiated Fields (HIRF). Each system that performs critical functions must be designed and installed to ensure that the operations, and operational capabilities of these systems to perform critical functions, are not adversely affected when the airplane is exposed to high intensity radiated electromagnetic fields external to the airplane.

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

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance.

Interested persons are invited to submit such written data, views, or arguments as they may desire. Communications should identify the regulatory docket or notice number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. CE207.” The postcard will be date stamped and returned to the commenter.

The New Piper Aircraft, Inc., Vero Beach, Florida, applied for an amendment to Type Certificate No. A3SO and 2A13 to revise the type design of the PA-28-161, PA-28-181, PA-28R-201, PA-32-301FT, PA-32-301XTC, PA-32R-301, and PA-32R-301T model airplanes. The models are currently approved under the type certification basis listed on Type Certificate Data Sheets (TCDS) A3SO and 2A13. The proposed modification incorporates a novel or unusual design feature, such as digital avionics consisting of an EFIS that is vulnerable to HIRF external to the airplane.

Under the provisions of 14 CFR, part 21, § 21.101, The New Piper Aircraft, Inc.; must show that affected airplane models, as changed, continue to meet the applicable provisions of the regulations incorporated by reference and identified on the appropriate Type Certificate Data Sheet (A3SO and 2A13). In addition, the type certification basis of the airplanes embodying this modification will include the following additional certification basis for installation of the Avidyne Entegra EFIS and Mid-Continent 4300-411 Electric Attitude Indicator:

14 CFR, part 23 regulations §§ 23.301, 23.337, 23.341, 23.561, 23.607, 23.611, as amended by Amdt. 23-48; §§ 23.303, 23.307, 23.601, 23.609, 23.1367, 23.1381 issued on 02/01/65; §§ 23.305, 23.613, 23.773, 23.1525, 23.1549 as amended by Amdt. 23-45; §§ 23.603, 23.605 as amended by Amdt. 23-23; §§ 23.777, 23.1191, 23.1337 as amended by Amdt. 23-51; §§ 23.1301, 23.1327, 23.1335 as amended by Amdt. 23-20; §§ 23.853, 23.867, 23.1303, 23.1307, 23.1309, 23.1311, 23.1321, 23.1323, 23.1329, 23.1351, 23.1353, 23.1359, 23.1361, 23.1365, 23.1431 as amended by Amdt. 23-49; §§ 23.1305 as amended by Amdt. 23-52; §§ 23.1322, 23.1331, 23.1357 as amended by Amdt. 23-43; §§ 23.1325, 23.1543, 23.1545, 23.1555, 23.1563, 23.1581, 23.1583, 23.1585 as amended by Amdt. 23-50; §§ 23. 771 as amended by Amdt. 23-14; §§ 23.1501, 23.1541 as amended by Amdt. 23-21; §§ 23.1523 as amended by Amdt. 23-34; §§ 23.1529 as amended by Amdt. 23-26; and the special conditions adopted by this rulemaking action.

If the Administrator finds that the applicable airworthiness standards do not contain adequate or appropriate safety standards because of novel or unusual design features of an airplane, special conditions are prescribed under the provisions of § 21.16.

Special conditions, as appropriate, as defined in § 11.19, are issued in accordance with § 11.38 after public notice and become part of the type certification basis in accordance with § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101.

The New Piper Aircraft, Inc. will incorporate certain novel and unusual design features into an airplane for which the airworthiness standards do not contain adequate or appropriate safety standards for protection from the effects of HIRF. These features include EFIS, which are susceptible to the HIRF environment, that were not envisaged by the existing regulations for this type of airplane.

Recent advances in technology have given rise to the application in aircraft designs of advanced electrical and electronic systems that perform functions required for continued safe flight and landing. The use of sensitive solid-state advanced components in analog and digital electronics circuits makes these advanced systems readily responsive to the transient effects of induced electrical current and voltage caused by the HIRF. The HIRF can degrade electronic systems performance by damaging components or upsetting system functions.

Furthermore, the HIRF environment has undergone a transformation that was not foreseen when the current requirements were developed. Higher energy levels are radiated from transmitters that are used for radar, radio, and television. Also, the number of transmitters has increased significantly. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling to cockpit-installed equipment through the cockpit window apertures is undefined.

The combined effect of the technological advances in airplane design and the changing environment has resulted in an increased level of vulnerability of electrical and electronic systems required for the continued safe flight and landing of the airplane. Effective measures against the effects of exposure to HIRF must be provided by the design and installation of these systems. The accepted maximum energy levels in which civilian airplane system installations must be capable of operating safely are based on surveys and analysis of existing radio frequency emitters. These special conditions require that the airplane be evaluated under these energy levels for the protection of the electronic system and its associated wiring harness. These external threat levels, which are lower than previous required values, are believed to represent the worst case to which an airplane would be exposed in the operating environment.

These special conditions require qualification of systems that perform critical functions, as installed in aircraft, to the defined HIRF environment in paragraph 1 or, as an option to a fixed value using laboratory tests, in paragraph 2, as follows:

(1) The applicant may demonstrate that the operation and operational capability of the installed electrical and electronic systems that perform critical functions are not adversely affected when the aircraft is exposed to the HIRF environment defined below:

(2) The applicant may demonstrate by a system test and analysis that the electrical and electronic systems that perform critical functions can withstand a minimum threat of 100 volts per meter, electrical field strength, from 10 kHz to 18 GHz. When using this test to show compliance with the HIRF requirements, no credit is given for signal attenuation due to installation.

A preliminary hazard analysis must be performed by the applicant, for approval by the FAA, to identify either electrical or electronic systems that perform critical functions. The term “critical” means those functions whose failure would contribute to, or cause, a failure condition that would prevent the continued safe flight and landing of the airplane. The systems identified by the hazard analysis that perform critical functions are candidates for the application of HIRF requirements. A system may perform both critical and non-critical functions. Primary electronic flight display systems, and their associated components, perform critical functions such as attitude, altitude, and airspeed indication. The HIRF requirements apply only to critical functions.

Compliance with HIRF requirements may be demonstrated by tests, analysis, models, similarity with existing systems, or any combination of these. Service experience alone is not acceptable since normal flight operations may not include an exposure to the HIRF environment. Reliance on a system with similar design features for redundancy as a means of protection against the effects of external HIRF is generally insufficient since all elements of a redundant system are likely to be exposed to the fields concurrently.

As discussed above, these special conditions are applicable to The New Piper PA-28-161, PA-28-181, PA-28R-201, PA-32-301FT, PA-32-301XTC, PA-32R-301, and PA-32R-301T model airplanes.

This action affects only certain novel or unusual design features on the models listed. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

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

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for The New Piper Aircraft, Inc.; PA-28-161, PA-28-181, PA-28R-201, PA-32-301FT, PA-32-301XTC, PA-32R-301, and PA-32R-301T model airplanes modified by installation of the factory optional Avidyne Entegra EFIS system.

1. Protection of Electrical and Electronic Systems From High Intensity Radiated Fields (HIRF). Each system that performs critical functions must be designed and installed to ensure that the operations, and operational capabilities of these systems to perform critical functions, are not adversely affected when the airplane is exposed to high intensity radiated electromagnetic fields external to the airplane.

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

In February of 2004, we became aware of an LCF failure of a stage 5 LPT disk that occurred during factory testing. GE performed a metallurgical evaluation of the disk. The evaluation showed that the origin of the LCF failure was at a disk location contacted inadvertently by electrochemical etch probes. These probes were used to match-mark components during engine assembly. The evaluation concluded that the probe contact caused damage known as electrical arc-out. Electrical arc-out damage can lead to LCF failure of the disk. This condition, if not corrected, could result in uncontained engine failure.

We have reviewed and approved the technical contents of GE Alert Service Bulletin No. CF34-AL S/B 72-A0173, Revision 3, dated July 20, 2004, that lists applicable disks by SN, and describes the procedures for performing visual and eddy current inspections on the applicable stage 5 LPT disks and stage 6 LPT disks.

The unsafe condition described previously is likely to exist or develop on other GE CF34-3A1 and -3B1 series turbofan engines of the same type design. We are issuing this AD to prevent LCF failure of stage 5 LPT disks and stage 6 LPT disks, which could lead to uncontained engine failure. This AD requires:

• Initial and repetitive visual and eddy current inspections of certain SN stage 5 LPT disks and stage 6 LPT disks.

• Replacement of the suspect disks as optional terminating action to the repetitive inspections.

• Replacement of certain stage 5 LPT disks and stage 6 LPT disks.

You must use the service information described previously to perform the actions required by this AD.

Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

We have implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, we posted new AD actions on the DMS and assigned a DMS docket number. We track each action and assign a corresponding Directorate identifier. The DMS docket number is in the form “Docket No. FAA-200X-XXXXX.” Each DMS docket also lists the Directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “AD Docket No. FAA-2004-18648; Directorate Identifier 2004-NE-26-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD. Using the search function of the DMS Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov.

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

You may examine the docket that contains the AD, any comments received, and any final disposition in person at the DMS Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the DMS receives them.

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain EMBRAER Model EMB-135 and -145 series airplanes was published in the Federal Register on May 7, 2004 (69 FR 25523). That action proposed to require replacing the electrical harness for the tail boom strobe light with a new, improved harness that has a built-in metallic overbraid, and performing an operational test following the replacement.

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

The commenter, the airplane manufacturer, requests that we refer to Revision 01 of EMBRAER Service Bulletin 145-33-0032 as an appropriate source of service information for certain airplanes. This revision is dated April 27, 2004. The revision corrects the configuration group to which certain airplanes belong, but does not change the scope of the replacement and test that were proposed for those airplanes.

We agree with the commenter that we should use Revision 01 of this service bulletin, and have revised the applicability and paragraph (a) of the final rule to include Revision 01. We have also included a new paragraph (b) in the final rule that gives credit to operators who may have accomplished the actions in accordance with the original issue of the service bulletin.

After careful review of the available data, including the comment noted above, we have determined that air safety and the public interest require the adoption of the rule with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

We estimate that 548 airplanes of U.S. registry will be affected by this AD, that it will take approximately 2 work hours per airplane to accomplish the required replacement, and that the average labor rate is $65 per work hour. Required parts will cost between $915 and $1,255 per airplane, depending on the airplane configuration. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be between $572,660 and $758,980, or between $1,045 and $1,385 per airplane.

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

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

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

Has FAA taken any action to this point? We received reports of cracks found on the left hand upper longeron and upper diagonal support tubes where they intersect on the left hand side of the fuselage frame just forward of the vertical fin front spar attachment point on Air Tractor Model AT-602 airplanes. Additional cracking was later reported on AT-400, AT-602, and AT-802 series airplanes.

Air Tractor started installing extended reinforcement gussets on AT-402 and AT-802 series airplanes at the factory to alleviate the crack condition from occurring. The extended reinforcement gussets were intended to transfer the loads away from the joint. However, an AT-802 airplane with the extended reinforcement gusset installed during factory production was discovered cracked in service at the forward end of the gusset.

These conditions caused us to issue AD 2002-19-10, Amendment 39-12890 (67 FR 61481, October 1, 2002). AD 2002-19-10 currently requires you to do the following on certain Air Tractor Models AT-402, AT-402A, AT-402B, AT-602, AT-802, and AT-802A airplanes:

Discussion

What events have caused this AD? Reports of an unsafe condition on certain Cessna Models 172R, 172S, 182S, 182T, T182T, 206H, and T206H airplanes that are equipped with a Honeywell KAP 140 autopilot computer system caused us to issue AD 2003-24-13, Amendment 39-13382 (68 FR 67789, December 3, 2003).

The KAP 140 autopilot computer system is located on the lower portion of the center instrument control panel near the throttle on these Cessna airplanes. Because of this location on the instrument control panel of the affected Cessna airplanes, the Autopilot Engage (AP) button could unintentionally be depressed when the pilot pushes the throttle knob forward. The pilot could also unintentionally engage the autopilot system by inadvertently bumping the Heading (HDG) button, Altitude (ALT) mode-select button, or Autopilot Engage (AP) button on the KAP 140 computer. Unless intentionally engaged, the pilot may not know that the autopilot system is engaged.

The Honeywell KAP 140 autopilot computer system is also installed in the New Piper, Inc. Model PA-28-181 airplanes. This AD will not affect these airplanes because of the location of the equipment. The equipment is installed on the center instrument panel near the throttle on the affected airplanes, but is installed in the upper half of the instrument control panel on the Piper airplanes. The unsafe condition only exists on certain Cessna airplanes.

Honeywell has updated the operating software for the KAP 140 autopilot computer system, which will now allow only the AP button on the instrument control panel to engage the autopilot system. This update also adds two voice messages if auto trim operation is detected, lengthens the amount of time that the autopilot button must be depressed in order for it to engage, and changes how the flight control display shows that the AP has been engaged.

AD 2003-24-13 currently requires the following on certain Cessna Aircraft Company Models 172R, 172S, 182S, 182T, T182T, 206H, and T206H airplanes that are equipped with a Honeywell KAP 140 autopilot computer system, part number (P/N) 065-00176-2602, P/N 065-00176-5402, or P/N 065-00176-7702 installed on the center instrument control panel near the throttle:

• Installing an update to the autopilot computer system operating software;

• Changing the unit part number;

• Placing an M tag on the unit serial number tag; and

• Changing the unit's software modification tag.

What has happened since AD 2003-24-13 to initiate this action? We inadvertently omitted four affected Honeywell KAP 140 autopilot computer systems and an affected serial number for Model 182T airplanes from the applicability section. Honeywell revised Installation Bulletin No. 491 to the Rev. 3 level (dated April 2003). We will incorporate this bulletin into this AD.

What is the potential impact if FAA took no action? If not corrected, inadvertent and undetected engagement of the autopilot system could cause the pilot to take inappropriate actions.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Cessna Models 172R, 172S, 182S, 182T, T182T, 206H, and T206H airplanes that are equipped with a certain Honeywell KAP 140 autopilot computer system installed on the center instrument control panel near the throttle. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on March 10, 2004 (69 FR 11346). The NPRM proposed to supersede AD 2003-24-13 with a new AD that would retain the actions required in AD 2003-24-13, would add four additional affected Honeywell KAP 140 autopilot computer system part numbers and an affected airplane serial number to the applicability section, and would incorporate a revised Honeywell installation bulletin.

Was the public invited to comment? We provided the public the opportunity to participate in the development of this AD. The following presents the comments received on the proposal and FAA's response to each comment:

What is the commenter's concern? The commenter states that FAA's discussion about the cause of the unsafe condition addressed in the proposed AD is unjustifiable.

The commenter states that an attentive pilot would know if the autopilot has been unintentionally engaged. The commenter also states that it is a convenience to the pilot to have the autopilot mode selector near the throttle while maneuvering during an approach or a go around that may necessitate a change in function.

The commenter states that the proposed AD is not necessary; therefore, the cost to have the software upgraded should be paid for by Honeywell.

We infer that the commenter want us to withdraw the NPRM and current AD 2003-24-13.

What is FAA's response to the concern? We do not agree with that we should withdraw the NPRM or AD 2003-24-13. The changes to the KC 140 autopilot computer system operating software required by this AD and AD 2003-24-13 will greatly limit the ability of the pilot to unintentionally engage the autopilot. The changes will also provide additional indications to the pilot that the autopilot has been engaged.

Because we continue to receive reports of related accidents involving pilots with experience ranging from novice to certified flight instructors, it is an indication that it is not obvious to all pilots that the autopilot is engaged.

We are not changing the final rule AD based on these comments.

What is FAA's final determination on this issue? We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. We have determined that these minor corrections:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

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

How many airplanes does this AD impact? We estimate that this AD affects 3,681 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to accomplish the modification:

What events have caused this AD? The FAA has received several reports of the protective cover installed over the percussion cap on the oxygen generator on the Models PA-46-310P, PA-46-350P and PA-46-500TP airplanes. Also, a silicon tube may exist over the end of the trigger mechanism pin. Any protective cover installed over the percussion cap, or any silicon tube installed over the trigger, on the oxygen generator renders the emergency oxygen system inoperative.

The affected models in the service bulletin referenced in this AD include the Models PA-46-310P and PA-46-350P airplanes. However, these models are certificated at a lower service ceiling than the Model PA-46-500TP airplane. Since Piper has demonstrated an emergency descent to a lower altitude with no oxygen to the pilot, neither Model PA-46-310P nor PA-46-350P airplanes are affected by the identified condition.

What is the potential impact if FAA took no action? Any protective cover on the percussion cap or silicon tube installed over the end of the trigger mechanism pin could result in failure of the emergency oxygen system. This failure could lead to the crew or passengers not being able to get oxygen in an emergency situation.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Piper Model PA-46-500TP airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on March 31, 2004 (69 FR 16836). The NPRM proposed to require you to inspect (one-time) for the existence of any protective cover over the percussion caps or silicon tube installed over the end of the trigger mechanism pin of the oxygen generators, and remove any protective cover or silicon tube found.

Was the public invited to comment? We provided the public the opportunity to participate in developing this AD. We received no comments on the proposal or on the determination of the cost to the public.

What is FAA's final determination on this issue? We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. We have determined that these minor corrections:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

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

How many airplanes does this AD impact? We estimate that this AD affects 135 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to do this inspection (and removal of any protective cover on the percussion cap or any silicon tube installed over the end of the trigger mechanism pin):

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2003-CE-52-AD” in your request.

A proposal to amend 14 CFR part 39 to include an AD for the specified model helicopters was published in the Federal Register on March 26, 2004 (69 FR 15744). That action proposed to require cleaning the ASU board and modifying the wiring and wiring harness. If a temporary modification is done, the action proposed to require inserting a placard regarding on-ground operation of the pump. Also, the action proposed to revise the Limitations section of the RFM to limit the operation of the pump. Also proposed was permanently modifying the wiring and wiring harness and then removing the placard and limitations from the RFM, which would be terminating action for the requirements of the AD.

The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on Model EC 155B and B1 helicopters equipped with ASU board 10 Alpha 2, part number (P/N) SE07451. The DGAC advises that a landing gear did not extend in “NORMAL” and “EMERGENCY” extension modes due to a short-circuit between two components of the ASU board 10 Alpha 2.

ECF has issued Alert Telex No. 31A005R1, dated September 19, 2002, and Alert Service Bulletin (ASB) Nos. 31A005 and 31A008, both dated August 20, 2003. The Alert Telex and ASB No. 31A005 describe procedures for modifying the electrical circuit to preclude the risk of the landing gear not extending in the normal and emergency extension modes following failure of the ASU board 10 Alpha 2. ASB No. 31A008 describes procedures to enhance the reliability of the normal and emergency landing gear extension functions by separating their power supplies. The DGAC classified these service bulletins as mandatory and issued AD Nos. 2002-515(A) R1 and 2003-323(A), both dated September 3, 2003, to ensure the continued airworthiness of these helicopters in France.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that this AD will affect 5 helicopters of U.S. registry, and modifying the electrical system will take about 11 work hours per helicopter at an average labor rate of $65 per work hour. Required parts will cost approximately $400 per helicopter. Based on these figures, we estimate the total cost impact of the AD on U.S. operators to be $5,575.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Fokker Model F27 Mark 100, 200, 300, 400, 500, 600, and 700 series airplanes was published in the Federal Register on June 2, 2004 (69 FR 31053). That action proposed to require a one-time inspection to determine the part number of the engine mounting frames, brace struts, and attachment fittings; and related corrective action.

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

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

The FAA estimates that 41 airplanes of U.S. registry will be affected by this AD, that it will take approximately 4 work hours per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $10,660, or $260 per airplane.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Airbus Model A310 series airplanes was published in the Federal Register on May 17, 2004 (69 FR 27868). That action proposed to require modification of certain wires in the right-hand wing.

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

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

The FAA estimates that 46 airplanes of U.S. registry will be affected by this AD, that it will take approximately 9 work hours per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Required parts will cost approximately $1,880 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $113,390, or $2,465 per airplane.

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

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

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

The age and citizenship searching service is a self-supporting operation of the Census Bureau, conducted in accordance with Title 13, United States Code (U.S.C.), Section 8(a). Under this statute, all expenses incurred in the retrieval of personal information from decennial census records and the preparation of census transcripts are covered by fees paid by individuals who request this service. The Age Search census transcript provides proof of age to qualify individuals for social security or other retirements benefits, proof of citizenship to obtain passports, proof of family relationships for rights of inheritance, or to satisfy other situations where a birth certificate is required but not available. Individuals request the Age Search service to qualify for social security/retirement benefits, obtain passports, documentation for court litigation or insurance settlements, and genealogical research. The 1910 through 2000 censuses in custody of the Census Bureau are confidential and protected from disclosure by Title 13, U.S.C., Section 9. No transcript of any record will be furnished that would violate statutes requiring that information furnished to the Census Bureau be held confidential and not used to the detriment of the person to whom it relates.

On April 30, 2004, the Census Bureau published in the Federal Register (69 FR 23700) a notice of proposed rulemaking and request for comments on this subject. The Census Bureau did not receive any comments on that notice and therefore the proposed rule is adopted as final.

There has not been an Age Search fee increase since February 1, 1993. Due to an increase in operating costs over this 11-year period and in order to help maintain the self-supporting financial status, the Census Bureau is making the following amendment to 15 CFR 50:

• Amend Section 50.5 to update the fee structure and add a fee charge for expedited requests. The Census Bureau is increasing the fee structure from $40.00 to $65.00 on searches of one census for one person and one transcript. The Census Bureau also is adding an additional charge of $20.00 per case for expedited requests requiring search results within one day. The additional $20.00 charge for expedited cases represents the estimated cost to the Census Bureau for this service.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule would not have a significant economic impact on a substantial number of small entities. Most, if not all, respondents affected by the fee increase are individuals, not small or large businesses. No comments were received on the certification therefore a final regulatory flexibility analysis was not required or prepared.

This rule has been determined to be not significant for purposes of Executive Order 12866. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current Office of Management and Budget (OMB) control number. On July 1, 2004, OMB cleared the form used to request age searches (Form BC-600), and the associated increase in fee structure, under OMB Control Number 0607-0117. This clearance addresses increasing the fee structure from $40.00 to $65.00 on searches of one census for one person and one transcript, and adding an additional charge of $20.00 per case for expedited requests requiring search results within one day.

On December 18, 2002, the Commission issued final amendments to the Telemarketing Sales Rule, which, inter alia, established the National Do Not Call Registry, permitting consumers to register, via either a toll-free telephone number or the Internet, their preference not to receive certain telemarketing calls. 68 FR 4580 (Jan. 29, 2003) (“Amended TSR”). Under the Amended TSR, most telemarketers are required to refrain from calling consumers who have placed their numbers on the registry. 16 CFR 310.4(b)(1)(iii)(B). Telemarketers must periodically access the registry to remove from their telemarketing lists the telephone numbers of those consumers who have registered. 16 CFR 310.4(b)(3)(iv). 1

Shortly after issuance of the Amended TSR, Congress passed The Do-Not-Call Implementation Act, Pub. L. No. 108-10 (2003) (“the Implementation Act”). The Implementation Act gave the Commission the specific authority to “promulgate regulations establishing fees sufficient to implement and enforce the provisions relating to the “do-not-call” registry of the [TSR] * * * No amounts shall be collected as fees pursuant to this section for such fiscal years except to the extent provided in advance in appropriations Acts. Such amounts shall be available * * * to offset the costs of activities and services related to the implementation and enforcement of the [TSR], and other activities resulting from such implementation and enforcement.” Id . at § 2.

On July 29, 2003, pursuant to the Implementation Act and the Consolidated Appropriations Resolution of 2003, Pub. L. No. 108-7 (2003), the Commission issued a Final Rule further amending the TSR to impose fees on entities accessing the National Do Not Call Registry. 68 FR 45134 (July 31, 2003) (“the Original Fee Rule”). Those fees were based on the FTC's best estimate of the number of entities that would be required to pay for access to the national registry, and the need to raise $18.1 million in Fiscal Year 2003 to cover the costs associated with the implementation and enforcement of the “do-not-call” provisions of the Amended TSR. The Commission determined that the fee structure would be based on the number of different area codes of data that an entity wished to access annually. The Original Fee Rule established an annual fee of $25 for each area code of data requested from the national registry, with the first five area codes of data provided at no cost. The maximum annual fee was capped at $7,375 for entities accessing 300 area codes of data or more. Id . at 45141.

In the Consolidated Appropriations Act of 2004, Pub. L. No. 108-199 (Jan. 23, 2004) (“the 2004 Appropriations Act”), Congress permitted the FTC to collect offsetting fees in Fiscal Year 2004 to implement and enforce the TSR. Id. at Division B, Title V. Pursuant to the 2004 Appropriations Act and the Implementation Act, as well as the Telemarketing Fraud and Abuse Prevention Act, 15 U.S.C. 6101-08 (“the Telemarketing Act”), the FTC issued a Notice of Proposed Rulemaking to amend the fees charged to entities accessing the National Do Not Call Registry, 69 FR 23701 (April 30, 2004) (“the Revised Fee NPRM”).

In the Revised Fee NPRM, the Commission proposed revising the fees for access to the national registry in order to raise $18 million to offset costs the agency expects to incur in this Fiscal Year for purposes related to implementing and enforcing the “do-not-call” provisions of the Amended TSR. Based on the number of entities that had accessed the registry through early March 2004, the Commission proposed revising the fees to charge $45 annually for each area code of data requested from the national registry, with the first five area codes of data provided at no cost. 2 The maximum annual fee would have been capped at $12,375 for entities accessing 280 area codes of data or more. Id . at 23703.

The Commission received 25 comments in response to the Revised Fee NPRM. 3 Based on its review of the record in this proceeding, and on its law enforcement experience in this area, the Commission hereby promulgates this Final Rule revising the fees for entities accessing the National Do Not Call Registry.

A number of commenters disapprove of raising the fees charged for access to the National Do Not Call Registry. Generally, these commenters state that the proposed increase in fees will be “economically devastating” to the teleservices industry and will “inevitably lead to the loss of telemarketing jobs.” 4 ATA claims that the proposed fee increase “serves only to underscore and exacerbate constitutional and systematic failings in the DNCR fee structure.” 5 On the other hand, other commenters cite the registry as being for “the greater good of all consumers” whose costs are appropriately borne by the telemarketing industry. 6

Some of the commenters that disapprove of the proposed increase in fees state that, prior to any fee increase, “the FTC must investigate whether there are entities that should be paying for access but fail to do so.” 7 Since the opening of the national registry, the agency has monitored industry payment for access. We have found no evidence of widespread noncompliance with the Original Fee Rule. Moreover, no commenter has provided any concrete information about such alleged noncompliance, only speculation. 8 As part of our law enforcement activities, we welcome any specific information that can be provided in this regard. The FTC is conducting non-public investigations of consumer complaints for violations of the fee provision as well as violations of the do-not-call provisions of the TSR, and will file law enforcement actions addressing such violations when appropriate. 9

Other commenters suggest that the FTC should use fines obtained from enforcement actions to offset some of the fee increase. 10 They correctly note that the FTC can obtain civil penalties for violations of the TSR, including violations of the “do-not-call” provisions, of up to $11,000 per violation. 11 By statute, however, the FTC cannot keep any civil penalties it obtains in such law enforcement actions. Instead, all such civil penalties are deposited into the General Fund of the United States Treasury. 12 Accordingly, by law, any fines obtained from enforcement actions cannot be used to offset fees.

A few commenters assert that the FTC has provided insufficient information about how funds have been expended to date. 13 MPA inquires why enforcement costs should be so high, given the “exceptional compliance” by the industry with the “do-not-call” rules. 14 DMA claims that the fees should be used only to cover the costs to operate the registry. “Combating fraud should be funded from the FTC appropriation just as it is for other consumer protection programs.” 15 ATA argues that “the fees are not used solely to maintain and enforce the [do-not-call] rules.” 16

Contrary to these commenters' assertions, the Commission has provided significant information about the basis for the fees it has raised to date, and has consistently and specifically limited the amount of fees to be collected to those needed to implement and enforce the “do-not-call” provisions of the Amended TSR. As stated in the Revised Fee NPRM, the amount of fees collected pursuant to this revised rule is intended to offset costs in the following three areas. First, funds are collected to operate the national registry. This operation includes items such as handling consumer registration and complaints, telemarketer access to the registry, state access to the registry, and the management and operation of law enforcement access to appropriate information. Second, funds are collected for law enforcement efforts, including identifying targets, coordinating domestic and international initiatives, challenging alleged violators, and consumer and business education efforts. These law enforcement efforts are a significant component of the total costs, given the large number of ongoing investigations currently being conducted by the agency, and the substantial effort necessary to thoroughly complete such investigations. Third, funds are collected to cover agency infrastructure and administration costs associated with the operation and enforcement of the registry, including information technology structural supports and distributed mission overhead support costs for staff and non-personnel expenses such as office space, utilities, and supplies. 17 ATA correctly notes that some of the costs set forth above will be used for improvements to the Consumer Sentinel system, which is a repository for all fraud-related complaints received by the FTC, and includes “do-not-call” related complaints. However, ATA and DMA are incorrect in stating that the fees raised are used to fund the FTC's fraud-related program. 18 To the contrary, the fees raised from entities accessing the national registry have been and will be used for enhancements to the agency's information technology infrastructure, enhancements that are essential to enable Consumer Sentinel to accommodate the “do-not-call” program. These enhancements include sorting, maintaining, and providing sufficient capacity for law enforcement agents from across the country to access the over 400,000 “do-not-call” complaints received to date, as well as the more than 62 million registered telephone numbers and the tens of thousands of records regarding companies that access the registry. 19

In conclusion, the Commission adheres to its statutory authority in raising fees that are necessary to implement and enforce the “do-not-call” provisions of the Amended TSR. In an effort to raise the $18 million to offset costs the agency expects to incur in this Fiscal Year for those purposes, the Commission concludes that an increase in fees is necessary, as discussed below.

In the Revised Fee NPRM, the Commission proposed to continue allowing all entities accessing the national registry to obtain the first five area codes of data for free. The Commission proposed allowing such free access “to limit the burden placed on small businesses that only require access to a small portion of the national registry.” 69 FR at 23703. The Commission noted that such a fee structure was consistent with the mandate of the Regulatory Flexibility Act, 5 U.S.C. 601, which requires that to the extent, if any, a rule is expected to have a significant economic impact on a substantial number of small entities, agencies should consider regulatory alternatives to minimize such impact. As stated in the Revised Fee NPRM, “the Commission continues to believe that providing access to five area codes of data for free is an appropriate compromise between the goals of equitably and adequately funding the national registry, on one hand, and providing appropriate relief for small businesses, on the other.” Id. In addition, the Commission noted that requiring a large number of entities to pay a small fee for access to five or fewer area codes from the national registry would place a significant burden on the registry, requiring the expenditure of even more resources to handle properly the additional payment transactions. Id.

A number of commenters oppose providing the first five area codes of data at no charge. Many noted that only 11 percent of all entities accessing the national registry currently pay the entire cost of the registry. 20 They maintain that larger companies should not be “obligated to subsidize” the operation of smaller companies or exempt organizations. 21 “These [smaller] organizations derive benefit from access to the National Do-Not-Call Registry. They should be obligated either to pay the full access fee or some portion of the fee.”  22 According to TCIM, those entities that do not pay “place an unfair burden on the 6,000 who do pay for access. We believe that everyone who makes outbound telemarketing calls ought to pay their fair share of the registry's costs.”  23 Others state that a nominal charge for five area codes is not overly burdensome to any business, regardless of size. “The fact that there will be additional resources required on the part of the Registry to process additional payments, does not outweigh the need for equitable distribution of cost across all entities.”  24

In order to address what they consider to be the inequitable treatment of the current fee structure, some commenters suggest reducing the number of area codes provided for free. For example, IMC suggests reducing the number of free area codes from five to three. This would “reduce the unfair impact of the current fee structure” while not causing “a financial hardship for the majority of companies whose costs would increase by less than $100 per year.”  25 Others suggest that there should be a “modest $100 flat fee on all entities who desire to subscribe to five area codes or fewer.”  26 Finally, Cendant suggests that small businesses should pay some nominal fee, established under a sliding scale formula. 27

On the other hand, many commenters support providing the first five area codes of data at no charge. They suggest that this will help “encourage entrepreneurship in America.”  28 NADA states: “Removing the exemption would have a significant impact on our members and many other small and medium size businesses. * * * These businesses already have assumed significant training, systems and other compliance costs associated with the National DNC rules. * * * Imposing a fee for accessing the first five area codes would impose a disproportionate burden on small entities that already are struggling to comply with the ever-expanding list of federal requirements affecting their businesses.”  29 Similarly, NAR cites information from the Small Business Administration's Office of Advocacy which shows that “very small firms with fewer than 20 employees * * * spend 60 percent more per employee than larger firms to comply with federal regulations.”  30

Further, a number of commenters suggest that the Commission should do more to protect small businesses. CAR maintains that the fee increase will detrimentally affect small businesses located in highly populated areas “with more than five area codes within a one hundred mile radius of one another.” 31 NNA suggests that the FTC should consider expanding the small business exemption, especially to cover small businesses that do business nationwide, such as niche publications, by allowing free access to any entity that meets the “general definitions for small businesses codified under the Small Business Act and implemented by the Small Business Administration through its Office of Size Standards.” 32

After considering all of the comments submitted in this proceeding, the Commission still believes it is important to provide small businesses with some relief from the burdens of complying with the “do-not-call” provisions of the Amended TSR. While the Commission recognizes that only a small percentage of the total number of entities accessing the national registry pay for that access, these figures also illustrate the large number of small businesses that would be adversely affected by a change in the number of area codes provided at no cost. In fact, over 57,000 entities have accessed five or fewer area codes of the national registry. Most of these entities—realtors, car dealers, community-based newspapers, and other small businesses—are precisely the types of businesses which the Regulatory Flexibility Act requires the agency to consider when adopting regulations. Moreover, the Commission finds significant the information submitted by commenters showing the disproportionate impact compliance with the “do-not-call” regulations may have on small businesses. In order to lessen that impact, the Commission believes that relief to such businesses is appropriate.

The Commission does not believe that the suggested alternatives for providing such relief would provide the same level of assistance to small businesses without imposing undue burdens that the current system does not impose. For example, the suggestion to charge a flat $100 fee on all entities accessing five area codes or less would result in tens of thousands of entities that access from one to two area codes of data to be required to pay more than the per area code amount paid by all other entities. In effect, this proposal would have an even greater disproportionate impact on those entities than if they were charged for each area code accessed. The suggestion to base the fees on the actual size of the entity requesting access would require all entities to submit sensitive data concerning annual income, number of employees, or other similar factors. It also would require the agency to develop an entirely new system to gather that information, maintain it in a proper manner, and investigate those claims to ensure proper compliance. As the Commission has previously stated, such a system “would present greater administrative, technical, and legal costs and complexities than the Commission's current exemptive proposal, which does not require any proof or verification of that status.” 33 As a result, the Commission continues to believe that the most appropriate and effective method to provide relief to small businesses is to provide access to a certain number of area codes at no charge.

As for the exact number of area codes to provide at no charge, the comments presented have failed to persuade the Commission that any change in the current level of five free area codes is necessary or appropriate. The Commission recognizes that reducing the number of free area codes would result in slightly lower fees charged to the entities that must pay for access. At the same time, however, that would also result in increased costs to thousands of small businesses. On the other hand, the Commission also recognizes that some small businesses located in large metropolitan areas may need to make calls to more than five area codes. However, increasing the number of area codes provided at no charge would decrease the pool of paying entities, and further increase the fees paid by those entities. As a result, the Commission believes it has struck the appropriate balance, in an effort to relieve some of the burden faced by small businesses while still achieving the goal of covering the necessary costs to implement and enforce the “do-not-call” provisions of the Amended TSR, in allowing all entities to gain access to the first five area codes of data from the national registry at no cost.

In the Revised Fee NPRM, the Commission also proposed to continue allowing “exempt” organizations to obtain free access to the national registry. 34 The Commission stated its belief that any exempt entity, voluntarily accessing the national registry to avoid calling consumers who do not wish to receive telemarketing calls, should not be charged for such access. Charging such entities access fees, when they are under no legal obligation to comply with the “do-not-call” requirements of the TSR, may make them less likely to obtain access to the national registry in the future, resulting in an increase in unwanted calls to consumers. 69 FR at 23703.

A number of commenters support continuing allowing “exempt” entities to access the national registry at no charge, for the reasons set forth in the Revised Fee NPRM. 35 Others oppose the provision, claiming that such free access exacerbates the inequities in the system. 36 In fact, ATA claims that “the costs of a regulation that seeks to address a problem should be paid by all entities that advance its objectives.” 37

The Commission continues to believe that if it charged exempt entities for access to the national registry, many if not most of those entities would no longer seek access. As a result, registered consumers would receive an increase in the number of unwanted telephone solicitations. Exempt entities are, by definition, under no legal obligation to access the national registry. Many are outside the jurisdiction of the FTC. They are voluntarily accessing the registry in order to avoid calling consumers whose telephone numbers are registered. They should be encouraged to continue doing so, rather than be charged a fee for their efforts. The Commission will continue to allow all such exempt entities to access the national registry at no charge, after they have completed the required certification.

As previously stated, the Commission proposed in the Revised Fee NPRM to increase the fees charged to access the National Do Not Call Registry to $45 annually for each area code of data requested, with the maximum annual fee capped at $12,375 for entities accessing 280 area codes of data or more. 38 The Commission based this proposal on the total number of entities that accessed the registry from its opening through early March, 2004. 39 The Commission noted, however, that it would adjust the final revised fee to reflect the actual number of entities that had accessed the registry at the time of issuance of the Final Rule. 40

From early March through June 1, 2004, a significant number of entities accessed the national registry for the first time. As of June 1, 2004, over 65,000 entities had accessed the national registry. More than 57,000 of those entities had accessed five or fewer area codes of data at no charge, and 1,100 “exempt” entities also accessed the registry at no charge. Thus, more than 7,100 entities have paid for access to the registry, with over 1,200 entities paying for access to the entire registry.

Based on these revised figures, and the need to raise $18 million of fees to offset costs it expects to incur in this Fiscal Year for implementing and enforcing the “do-not-call” provisions of the Amended TSR, the Commission is revising the fees to be charged for access to the national registry as follows. The fee charged for each area code of data will be $40 per year, with the first five area codes provided to each entity at no charge. “Exempt” organizations, as described in footnote 33, above, will continue to be allowed access to the national registry at no charge. The maximum amount that will be charged any single entity will be $11,000, which will be charged to any entity accessing 280 area codes of data or more. The fee charged to entities requesting access to additional area codes of data during the second six months of their annual period will be $20.

MPA suggests that to “lessen the negative impact on the telemarketing industry, the Commission should consider phasing in any increase in fees over a period of time.”  41 In order to raise the appropriate fees to cover costs that are incurred in Fiscal Year 2004, which ends September 30, 2004, this suggestion is not possible. As a result, the Commission establishes September 1, 2004, as the effective date for this rule change, which is approximately one year following the opening of the national registry to entities engaged in telemarketing. Thus, the revised fees will be charged to all entities that renew their subscription account number after their first year's subscription has expired.

Beginning in August 2004, organizations accessing their accounts and the National Do Not Call Registry data at www.telemarketing.donotcall.gov will find additional information on the web site regarding the new fees and the expiration of their subscriptions. The web site will display the actual expiration date of an account upon login and will begin accepting subscription renewals on September 1, 2004. However, an organization may not renew its subscription any sooner than 30 days prior to its expiration. If an organization does not access the web site until after its subscription has expired, it will be prompted to renew the subscription at that time.

The proposed revised fee provision does not create any new recordkeeping, reporting, or third-party disclosure requirements. However, the Commission now has data based on the operation of the National Do Not Call Registry indicating that an estimated 65,000 entities will access the registry each year. The Commission's staff has increased its estimate of the total paperwork burden accordingly, and has notified the Office of Management and Budget (“OMB”) of the resulting minor change in burden hours to the existing clearance, OMB Control No. 3084-0097.

The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601 et seq. , requires the agency to provide an Initial Regulatory Flexibility Analysis (“IRFA”) with its proposed rule, and a Final Regulatory Flexibility Analysis (“FRFA”) with its final rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. As explained in the Revised Fee NPRM and this Statement, the Commission does not expect that its Final Amended Fee Rule will have the threshold impact on small entities. As discussed above, this Amended Rule specifically charges no fee for access to data included in the registry from one to five area codes. As a result, the Commission anticipates that many small businesses will be able to access the national registry without having to pay any annual fee. Thus, it is unlikely that there will be a significant burden on small businesses resulting from the adoption of the proposed revised fees. Nonetheless, the Commission published an IRFA with the Revised Fee NPRM, and is also publishing a FRFA with its Final Amended Fee Rule below, in the interest of further explaining its determination, even though the Commission continues to believe that it is not required to publish such analyses.

The Amended Final Fee Rule has been considered and adopted pursuant to the requirements of the Implementation Act and the 2004 Appropriations Act, which authorize the Commission to collect fees sufficient to implement and enforce the “do-not-call” provisions of the Amended TSR.

As explained above, the objective of the Amended Final Fee Rule is to collect sufficient fees from entities that must access the National Do Not Call Registry. The legal authority for this Rule is the 2004 Appropriations Act, the Implementation Act, and the Telemarketing Act.

The Small Business Administration has determined that “telemarketing bureaus” with $6 million or less in annual receipts qualify as small businesses. 42 Similar standards, i.e., $6 million or less in annual receipts, apply for many retail businesses that may be “sellers” and subject to the revised fee provisions set forth in this Amended Final Rule. In addition, there may be other types of businesses, other than retail establishments, that would be “sellers” subject to this rule.

As described in Section IV, above, to date more than 57,000 entities have accessed five or fewer area codes of data from the national registry at no charge. While not all of these entities may qualify as small businesses, and some small businesses may be required to purchase access to more than five area codes of data, the Commission believes that this is the best estimate of the number of small entities that will be subject to this Amended Final Rule. In any event, as explained elsewhere in this Statement, the Commission believes that, to the extent the Amended Final Fee Rule has an economic impact on small business, the Commission has adopted an approach that minimizes that impact to ensure that it is not substantial, while fulfilling the legal mandate of the Implementation Act and 2004 Appropriations Act to ensure that the telemarketing industry supports the cost of the National Do Not Call Registry.

The information collection activities at issue in this Amended Final Rule consist principally of the requirement that firms, regardless of size, that access the national registry submit minimal identifying and payment information, which is necessary for the agency to collect the required fees. The cost impact of that requirement and the labor or professional expertise required for compliance with that requirement were discussed in Section V of the Revised Fee NPRM. 43

As for compliance requirements, small and large entities subject to the Amended Fee Rule will pay the same fees to obtain access to the National Do Not Call Registry in order to reconcile their calling lists with the phone numbers maintained in the national registry. As noted earlier, however, compliance costs for small entities are not anticipated to have a significant impact on small entities, to the extent the Commission believes that compliance costs for those entities will be largely minimized by their ability to obtain data for up to five area codes at no charge.

None.

The Commission discussed the proposed alternatives in Section III, above.

The final rules that are the subject of this correction set forth six new subparts in part 408 (Special Benefits for Certain World War II Veterans). The six new subparts dealt with the following topics: the events you must report to us after you apply for SVB, the circumstances that will affect your SVB entitlement, how we handle overpayments and underpayments under the SVB program, how the administrative review process works, your right to appoint someone to represent you in your dealings with us, and administration agreements we may enter into with a State under which we will pay supplemental recognition payments to you on the State's behalf. On page 25963 of the document we published in the Federal Register of May 10, 2004, we incorrectly designated the final four paragraphs in § 408.1003 as paragraphs (e) through (h).

The public information and education meetings are not public hearings and are not public comment meetings. The meetings will consist of presentations on each part of the final rule with time for clarification questions at the end of the meeting. We will provide information packets on the final rule at the meeting. For more information on the location of the meetings visit the Federal Highway Administration, Federal Lands Highway Web site at: http://www.fhwa.dot.gov/flh. The meetings will begin at 8 a.m. and end at 4:30 p.m. local time and will be held on the dates and at the locations listed below:

These temporary regulations are being issued without prior notice and public procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553). For this reason, the collection of information contained in these regulations has been reviewed and, pending receipt and evaluation of public comments, approved by the Office of Management and Budget under control number 1545-1897. Responses to this collection of information are required to obtain a tax benefit.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.

For further information concerning this collection of information, and where to submit comments on the collection of information and the accuracy of the estimated burden, and suggestions for reducing this burden, please refer to the preamble to the cross-referencing notice of proposed rulemaking published in the Proposed Rules section of this issue of the Federal Register .

Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.

Section 4081(a)(1)(A)(iii) of the Internal Revenue Code (Code) imposes a tax on the entry into the United States of taxable fuel. Taxable fuel means gasoline, diesel fuel, and kerosene. Existing regulations provide that the enterer is liable for the tax imposed on the entry of taxable fuel.

The regulations currently define the term enterer as generally meaning the importer of record (under customs law) with respect to the taxable fuel. However, if the importer of record is acting as an agent (for example, the importer of record is a customs broker engaged by the owner of the taxable fuel), the person for whom the agent is acting is the enterer.

The regulations require an enterer to be registered by the IRS. The IRS will register an applicant only if the IRS determines that the applicant meets several tests, including the adequate security test. An applicant meets the adequate security test only if the IRS determines that the applicant has both adequate financial resources and a satisfactory tax history, or the applicant gives the IRS a bond.

Section 142.4 of the Customs regulations (19 CFR) provides that merchandise shall not be released from Customs custody unless a bond on Customs Form 301, Customs Bond, has been filed. This bond, which is filed by the importer of record, secures the payment of any duty, tax, or charge, and compliance with Customs laws and regulations. Section 141.3 of the Customs regulations provides that the importer's liability for duties includes liability for any internal revenue taxes which attach upon the importation of merchandise, unless otherwise provided by law or regulation. Also, § 113.62(a)(1)(ii) of the Customs regulations provides, in part, that if merchandise is imported and released from Customs custody, the obligors on a Customs bond (principal and surety, jointly and severally) agree to pay, as demanded by Customs, all additional duties, taxes, and charges subsequently found due, legally fixed, and imposed on any entry secured by the bond.

The IRS has found that abusive situations exist with regard to the entry of taxable fuel into the United States. For example, some enterers are not registered and are not paying the tax on their fuel entries. This not only gives noncompliant enterers a competitive advantage over their compliant competitors, but it also deprives the United States Treasury of revenue intended for the Highway Trust Fund.

When Congress enacted the present fuel tax regime, it noted that the Treasury Department is permitted “to prescribe rules and administrative procedures for determining liability for payment of tax.” H.R. Conf. Rep. No. 101-964, at 1052 (1990).

Pursuant to these temporary regulations, the importer of record (under Customs law) is jointly and severally liable with the enterer for the tax if the importer of record is not the enterer of the taxable fuel (that is, the importer of record is a customs broker engaged by the enterer) and the enterer is not a taxable fuel registrant. Thus, an importer of record engaged by an enterer and seeking assurance that it will not be jointly and severally liable for the enterer's tax liability should verify that the enterer is registered by the IRS. This temporary regulation is similar to § 48.4081-2(c)(2) of the regulations, which provides that a terminal operator generally is jointly and severally liable for the tax imposed on the removal of taxable fuel from the rack if the terminal operator allows an unregistered position holder to operate in its terminal.

Customs laws and regulations provide that the importer of record is liable for any duties or taxes that attach upon the importation of merchandise. Therefore, an importer of record's Customs bond secures not only the payment of duties, but also the payment of taxes that are imposed on the entry of merchandise, including taxable fuel. Consequently, under existing law, a surety could be compelled to meet a demand on a Customs bond if the excise tax on the entry of taxable fuel is not paid when due. However, the IRS will not charge a surety bond for this tax until the effective date of these temporary regulations. It should be noted, however, that under these temporary regulations the Customs bond posted for the entry of taxable fuel will not be charged for the section 4081 tax if the enterer is a taxable fuel registrant.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory flexibility assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For the applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), refer to the Special Analyses section of the preamble to the cross-reference notice of proposed rulemaking published in the Proposed Rules section in this issue of the Federal Register . Pursuant to section 7805(f) of the Code, these temporary regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

The principal author of these regulations is Celia Gabrysh, Office of Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS, the Treasury Department, and the Bureau of Customs and Border Protection, Department of Homeland Security, participated in their development.

This rulemaking began with our publication of two notices requesting comment, both titled “Recreational Safety-Federal Requirements for Wearing Personal Flotation Devices,” in the Federal Register . We published the first notice in the Federal Register on September 25, 1997, CGD 97-059 [62 FR 50280]. It included questions about potential PFD-wearing requirements for recreational boaters. We extended the comment period in a notice published in the Federal Register on March 20, 1998, CGD 97-059 [63 FR 13586]. We published another notice, focusing on certain children, riders on personal watercraft, and persons being towed behind recreational vessels, in the Federal Register on October 5, 1999, USCG-1999-6219 [64 FR 53971].

We received approximately 600 comments for the first notice and another 600 comments for the second notice. We developed a Notice of Proposed Rulemaking (NPRM), after considering all the comments, proposing Federal requirements for certain children to wear personal flotation devices (PFDs).

We published an NPRM titled “Wearing of Personal Flotation Devices (PFDs) by Certain Children Aboard Recreational Vessels” in the Federal Register on May 1, 2001 [66 FR 21717]. The NPRM proposed that children under the age of thirteen be required to wear PFDs when they are above decks aboard recreational vessels that are under way. The NPRM discussed the approximately 1,200 comments that we received in response to the two requests for comments. No public hearing was requested and none was held.

By the close of the NPRM comment period on August 30, 2001, we had received 46 more comments. Of those, 22 comments supported the rule as proposed in the NPRM, 8 supported it with changes, and 16 opposed it. Most comments that supported the rule as proposed in the NPRM stated that it would be a positive step toward reducing drownings and toward uniform requirements across the States. Opposing comments expressed concern that Federal action would interfere with individual State efforts to mandate the use of PFDs.

After summarizing the comments received in response to the NPRM, we consulted the National Boating Safety Advisory Council (NBSAC) at its meeting in October 2001 regarding those comments and recommendations. NBSAC recommended that we proceed to publish the Final Rule, as proposed in the NPRM.

We published a Final Rule in the Federal Register on February 27, 2002 [67 FR 8881]. The Final Rule discussed the 46 comments that we received in response to the NPRM. It required children under age 13 to wear PFDs when they are above decks aboard recreational vessels that are under way. The Final Rule had three distinct requirements: (1) For States without their own statutes or rules on ages, it established a Federal requirement complete in itself; (2) for States with statutes or rules on age only, provided for enforcing those statutes or rules in whole; and (3) for States with their own statutes or rules on age that include other qualifications, such as lengths of vessels, it provided for enforcing the age limits of those statutes or rules but not the other qualifications.

We published a Notice of Withdrawal in the Federal Register on March 27, 2002 [67 FR 14645], after a State Boating Law Administrator alerted us to a potential conflict between our own rule and States' qualified statutes or rules. The same conflict was noticed as we prepared training guidance for the Coast Guard boarding officers. Under the Final Rule as published, the Coast Guard's boarding officers would have enforced the age requirement on all recreational vessels regardless of any State qualifiers. At the same time and on the same waters, States' boarding officers would have only been enforcing the age requirement on certain vessels, as determined by the State regulation.

On June 24, 2002, we published in the Federal Register [66 FR 21717] an Interim Rule with a request for comments titled “Wearing of Personal Flotation Devices (PFDs) by Certain Children Aboard Recreational Vessels.” Under the Interim Rule, the Coast Guard established a requirement for children under 13 to wear a PFD in those States without any requirement. It also provided for the Coast Guard to enforce each State's statute or rule in its entirety, including any qualifications. Thus, Coast Guard boarding officers will enforce the same requirements for wearing a PFD as do State boarding officers. We received 12 comments concerning the Interim Rule.

The Interim Rule provided for enforcing existing State statutes and rules, and added authority for Coast Guard boarding officers to support those efforts. Further, we encouraged other States to undertake their own such efforts without imposing a Federal mandate. Four of the 12 comments supported the rulemaking but recommended a different age limit. However, the Coast Guard's limit of “under 13” is supported by recommendations from NBSAC and the National Transportation Safety Board.

The Coast Guard received 12 comments in response to the Interim Rule. These came from: 4 recreational boaters; 4 governmental agencies; 1 boating organization; and 3 safety or medical organizations.

Two comments supported the rulemaking as is, stating that while education concerning PFD use is often effective, this rulemaking would provide additional incentive for parents to ensure their children are wearing PFDs.

Six comments opposed the rulemaking, stating that the Federal government should not be involved in the decision concerning which children must wear PFDs. A comment from a Virginia legislative delegate stated that the Commonwealth's legislature had rejected such a rule twice. The Ohio Waterways Safety Council stated that there are more important boating safety issues and that the States were already successfully addressing the PFD matter.

The Coast Guard did consider exempting selected States from the Federal regulation. However, the Coast Guard has decided that in order to maintain national uniformity, a Federal requirement should apply on waters subject to the concurrent jurisdiction of the United States and the State where that State has not established any requirement for children to wear an appropriate Coast Guard-approved PFD while aboard a recreational vessel.

Four comments supported the rulemaking, but with changes. The American Academy of Pediatrics requested that the age be changed to 18 and under, and that the Federal government set the minimum safety standard while allowing States to choose whether to exceed the Federal requirements. A comment from an individual requested that the age limit be lowered to 9 years old because a child above that age who is around boats would likely know how to swim. If a child does not know how to swim, the parent or guardian, not the government, should take responsibility for the child's safety, including whether the child should wear a PFD. The comment also suggested fines for those violating the Federal regulation requiring children 9 and under to wear PFDs.

As discussed in the Interim Rule, the Coast Guard has decided to retain the Federal requirement that children under 13 years of age must wear a PFD. A maximum civil penalty of $1,100 could be assessed for a violation of the Federal requirement or of a State requirement being enforced under the Federal regulation.

Two comments from the State of Wisconsin's Department of Natural Resources asked that the regulation language in § 175.25 be changed from “each child” to “certain children” to avoid confusion when applying State requirements. The regulation would read, “* * * any State that has established by statute or rule a requirement under which certain children must wear an appropriate PFD.”

The Coast Guard agrees and has revised § 175.25 to reflect the enforcement of State requirements requiring certain children (instead of each child) to wear personal flotation devices.

The Coast Guard further expanded this section to address in more detail when Federal requirements apply and when State requirements apply. This change clarifies exactly when the Coast Guard will enforce existing State standards.

The analyses we conducted in connection with the interim rule all remain unchanged, and the Analysis Documentation prepared for the interim rule remains in the docket. This final 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 (OMB) has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). Please consult the Regulatory Evaluation provided in the interim rule for further information.

Pursuant to its authorities in section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and chapter XIX, of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3), the Corps is amending the restricted area regulations in 33 CFR part 334 by adding § 334.145 which identifies the existing danger zone in Lake Michigan offshore from Manitowoc and Sheboygan Counties in Wisconsin, as shown on NOAA Chart 14901 (1999). By correspondence dated 3 July 2001, the WiANG has requested the Corps of Engineers to re-identify this danger zone. The area is located under Restricted Air Space R-6903 which is shown on existing aeronautical charts. This amendment of the regulation will allow WiANG to request that the Coast Guard issue a Notice to Mariners when exercises are planned and thus better inform fishermen and mariners of military activities in this area. WiANG intends to continue to schedule this area for use in a similar manner as it has been used during the past 20 years. Historical activity includes, but is not limited to, inert air-to-air and air-to-surface delivery, defensive countermeasures training and sonar buoy drops.

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

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

The St. Paul District has prepared an Environmental Assessment (EA) for this action. Due to the administrative nature of this action and because there is no intended change in the use of the area, the Corps has concluded that this regulation will not have a significant impact to the quality of the human environment and, therefore, preparation of an Environmental Impact Statement is not required. The EA may be reviewed at the St. Paul District office listed at the end of FOR FURTHER INFORMATION CONTACT , above.

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

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

On July 18, 1997, EPA promulgated revisions to the primary and secondary NAAQS for particulate matter (PM) (62 FR 38652), revising the PM NAAQS in several respects. New standards were added, using PM 2.5 (defined as particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (μm)) as the indicator for standards adopted for the purpose of regulating fine particles, and continuing to use PM 10 (defined as particles with an aerodynamic diameter less than or equal to a nominal 10 μm) as the indicator for standards adopted for the purpose of regulating coarse-fraction particles (referring to those particles with an aerodynamic diameter less than or equal to a nominal 10 μm but greater than 2.5 μm). The 1997 annual PM 10 standard used the same form as the pre-existing annual PM 10 standard adopted in 1987, whereas the 1997 24-hour PM 10 standard incorporated a new statistical form, based on the 99th percentile of 24-hour PM 10 concentrations at each monitor in an area. EPA also adopted various requirements related to the 1997 PM 10 standards such as new measurement methods, a new attainment test, and air quality monitoring schedules.

At that time, EPA determined that the pre-existing 1987 PM 10 standards should remain in place and continue to apply in order to provide for an effective transition to the 1997 PM 10 standards. 62 FR at 38701. To this end, EPA adopted a regulation setting forth criteria under which the pre-existing PM 10 standards would cease to apply. See 40 CFR 50.6(d), 62 FR at 38711.

Following promulgation of the 1997 PM NAAQS, numerous petitions for review of the PM standards were filed in the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit). These petitions were consolidated in American Trucking Associations, Inc. et al. , v. EPA and the court issued its initial opinion on May 14, 1999. American Trucking Associations, Inc. et al. , v. Environmental Protection Agency, 175 F.3d 1027 (D.C. Cir. 1999), rehearing granted in part and denied in part, 195 F.3d 4 (D.C. Cir. 1999), affirmed in part and reversed in part, Whitman v. American Trucking Associations, Inc. et al. , 121 S.Ct 903 (2001); see also American Trucking Associations v. EPA, 283 F.3d 355 (D.C. Cir. 2002) (denying all remaining petitions for review following remand from United States Supreme Court). In part, although the court found “ample support” for EPA's decision to regulate coarse-fraction particles, it vacated the 1997 PM 10 standards on the basis of PM 10 being a “poorly matched indicator for coarse particulate pollution” because PM 10 includes fine particles. 175 F. 3d at 1054-55. Pursuant to the D.C. Circuit's decision, EPA deleted 40 CFR 50.6(d), the regulatory provision controlling the transition from the pre-existing 1987 PM 10 standards to the 1997 PM 10 standards. 65 FR 80776 (December 22, 2000). The pre-existing 1987 PM 10 standards remained in place. Id. at 80777.

The above discussion is presented solely to provide context for today's action. EPA is not reopening, reconsidering, or otherwise reevaluating the appropriateness of any of these previous actions in today's notice.

Today's action removes from the CFR the PM 10 standards adopted in 1997 contained in 40 CFR 50.7(a)(2). These are the annual and 24-hour PM 10 standards and the associated new reference measurement method (contained in Appendix M). EPA is also removing 40 CFR 50.7(d) and (e), which includes the attainment tests for the PM 10 annual and 24-hour standards adopted in 1997 (included in Appendix N). Consistent with these changes, we are also removing Appendix M in its entirety and revising Appendix N to remove any provisions that relate to the 1997 PM 10 standards. In addition, EPA is amending 40 CFR 50.3 (which specifies reference measurement conditions) to remove language that extended the scope of its applicability to the 1997 PM 10 standards.

The EPA is also making conforming changes to the titles of 40 CFR 50.7 and Appendix N to clarify that these sections are now applicable solely to PM 2.5. Similarly, we are changing the title of Appendix K to clarify that it is applicable solely to PM 10 .

Because the form of the pre-existing 1987 PM 10 standards necessitated a different air quality monitoring schedule from that required for the vacated standards, EPA is also replacing § 58.13(d) with relevant portions of the “long-term monitoring selective sampling schedule” previously found at 40 CFR 58.13(d)(2) (July 1, 1996). Because the PM 10 monitoring networks are now fully deployed, EPA is not restoring those provisions pertaining to their initial implementation.

Although we are reprinting certain language from the 1997 rule in today's amendment, we are doing so only to assure clarity and grammatical correctness after deletion of the vacated text. We are not reopening, reconsidering, or otherwise reassessing any of this reprinted language.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), 1 provides that when an agency for good cause finds that notice and public comment procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because this rule is ministerial and non-discretionary, amending the regulations to reflect the court's order vacating the 1997 PM 10 standards. The rule thus vacates the 1997 PM 10 standards and the ancillary provisions directly related thereto. Because EPA has no discretion as to what action to take, notice and opportunity for public comment are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B). For the same reason, EPA finds that there is good cause, within the meaning of 5 U.S.C. 553(d)(3), to make the rule effective immediately.

Under Executive Order 12866, [58 FR 51735 (October 4, 1993)] the Agency must determine whether the regulatory action is “significant” and, therefore, subject to OMB review and the requirements of the Executive Order.

Because this action involves a ministerial removal of regulatory text in response to a court order, it has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is, therefore, not subject to EO 12866 review.

The Administrator has determined today's action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), since it directly imposes no burden at all. Burden means the total time, effort, or financial resources expended to generate and maintain, retain, or provide information as required by a rule. This includes the time needed to review instructions; develop, acquire, install, and use technology and systems for collecting, validating, and verifying information or processing and maintaining information; adjust the existing ways to comply with previous instructions and requirements; train personnel to respond to the collection of information; search data sources; complete and review the information; and transmit the information. Today's rule imposes no such burden on any entity.

The Regulatory Flexibility Act generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements 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 not-for-profit enterprises, and small governmental jurisdictions. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the APA or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

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, as well as 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 EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows 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 of 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 EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the APA or any other statute, it is not subject to sections 202 and 205 of the UMRA. In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of the UMRA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), 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 Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments or EPA consults with State and local officials early in the process of developing the proposed regulation. Also, the EPA may not issue a regulation that has Federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

If EPA complies by consulting, Executive Order 13132 requires EPA to provide to OMB in a separately identified section of the preamble to the rule a Federalism summary impact statement (FSIS). The FSIS must include a description of the extent of EPA's prior consultation with State and local officials, a summary of the nature of their concerns and the Agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. Also, when EPA transmits a draft final rule with Federalism implications to OMB for review pursuant to Executive Order 12866, EPA must include a certification from the Agency's Federalism official stating that EPA has met the requirements of Executive Order 13132 in a meaningful and timely manner.

This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government as specified in Executive Order 13132. This action will not alter the overall relationship or distribution of powers between governments for the Title V Program. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

This action 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000) because it does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Accordingly, this rule is not subject to Executive Order 13175.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that the EPA determines (1) economically significant as defined under Executive Order 12866, and (2) the environmental health or safety risk addressed by the rule has a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This action is not subject to Executive Order 13045 because it is not an economically-significant, regulatory action as defined by Executive Order 12866, and it does not address an environmental health or safety risk that would have a disproportionate effect on children.

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, business practices, etc. ) that are developed or adopted by voluntary-consensus standard bodies. The NTTAA directs EPA to provide Congress through OMB explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

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. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of [date of publication] for this rule. The 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 the publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

As noted earlier, EPA is making this rule effective immediately. Since EPA has no discretion as to what action to take and is simply amending the rules to conform to the D.C. Circuit's order of vacatur, comment on these amendments is unnecessary within the meaning of 5 U.S.C. 553(b)(3)(B).

For the same reason, there is good cause to make the rule effective immediately pursuant to 5 U.S.C. 553(d)(3).

The Act affords EPA a 45-day period to review and, as appropriate, to object to operating permits proposed by state permitting authorities under title V of the Act, 42 U.S.C. 7661-7661f. Section 505(b)(2) of the Act and 40 CFR 70.8(d) authorize any person to petition the EPA Administrator to object to a title V operating permit within 60 days after the expiration of EPA's 45-day review period if EPA has not objected on its own initiative. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or the grounds for the issues arose after this period.

GCLPI submitted a petition on behalf of the Sierra Club to the Administrator on October 7, 2003, requesting that EPA object to a state title V operating permit issued by EPD to Cargill. The Petitioner maintains that the Cargill permit is inconsistent with the Act due to: (1) The inadequacy of EPD's reasonably available control technology determinations for various emission units; (2) the inadequacy of various monitoring and reporting requirements; (3) the inadequacy of the statement of basis; and (4) the permit's inability to assure compliance.

On July 16, 2004, the Administrator issued an order partially granting and partially denying this petition. The order explains the reasons behind EPA's conclusion that the Petitioner adequately demonstrated that the Cargill permit is not in full compliance with the requirements of the Act on the grounds raised.

The EPA Region 6 is publishing this direct final notice of deletion of the South 8th Street Landfill Superfund Site from the NPL.

The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in § 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for remedial actions if conditions at a deleted site warrant such action.

Because the EPA considers this action to be noncontroversial and routine, the EPA is taking it without prior publication of a notice of intent to delete. This action will be effective September 28, 2004, unless the EPA receives adverse comments by August 30, 2004, on this notice or the parallel notice of intent to delete published in the proposed rules section of today's Federal Register . If adverse comments are received within the 30-day public comment period on this notice or the notice of intent to delete, the EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and the deletion will not take effect. The EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that the EPA is using for this action. Section IV discusses the South 8th Street Landfill Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses the EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete a release from the NPL, the EPA shall consider, in consultation with the State, whether any of the following criteria have been met:

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

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

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

Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the deleted site above levels that allow for unlimited use and unrestricted exposure, CERCLA section 121(c), 42 U.S.C. 9621(c) requires that a subsequent review of the site be conducted at least every five years after the initiation of the remedial action at the deleted site to ensure that the action remains protective of public health and the environment. If new information becomes available which indicates a need for further action, the EPA may initiate remedial actions. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Site:

(1) The EPA consulted with the Arkansas Department of Environmental Quality on the deletion of the Site from the NPL prior to developing this direct final notice of deletion.

(2) The Arkansas Department of Environmental Quality concurred with deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final notice of deletion, a notice of the availability of the parallel notice of intent to delete published today in the “Proposed Rules” section of the Federal Register is being published in a major local newspaper of general circulation at or near the Site and is being distributed to appropriate Federal, State, and local government officials and other interested parties; the newspaper notice announces the 30-day public comment period concerning the notice of intent to delete the Site from the NPL.

(4) The EPA placed copies of documents supporting the deletion in the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this notice or the companion notice of intent to delete also published in today's Federal Register , the EPA will publish a timely notice of withdrawal of this direct final notice of deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter the EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides the EPA's rationale for deleting the Site from the NPL:

The South 8th Street Landfill Superfund Site is a 16.3 acre landfill on the flood plain between the Mississippi River and the St. Francis Levee in West Memphis, Crittenden County, Arkansas. The Site is located at the southern end of 8th Street adjacent to the Tom Sawyer RV Park. Two barge terminals are located on the bank of the Mississippi River at the midpoint and south end of the Site. Aerial photographs indicate that the Site was excavated for gravel deposits resulting in a series of borrow pits that were subsequently used for the disposal of industrial and municipal wastes. The former landfill area is subdivided into three separate disposal areas. Area 1 (4.3 acres) of the landfill consists primarily of a former municipal waste landfill. Area 2 (8.1 acres) is predominately an industrial waste landfill with a large oily sludge pit occupying 2.5 acres of the area. Area 3 (3.9 acres) consists of several smaller municipal and industrial waste disposal areas.

Aerial photographs indicate that the Site was used for the disposal of waste material after 1957. Most of the early disposal activities appear to have been conducted on a 2.61 acre parcel of land (Area 2) leased by Mr. W. M. Gurley from the W. L. Johnson Company. Apparently, Gurley Refining Company used the Site (Area 2) between approximately 1960 and 1970 for the disposal of waste sludge from its re-refining process located on the land side of the St. Francis Levee immediately west of the Site. The sludge waste in the pit has physical and chemical properties similar to material typically identified at oil reclamation facilities.

The Site was first brought to the attention of the United States Government in 1979 in the Eckhardt Survey conducted by the House Congressional Sub-Committee on Interstate Commerce and Transportation. In this survey, the landfill was listed as the West Memphis Landfill Site, South 8th Street.

Between 1981 and 1988, the EPA conducted a series of soil boring investigations of the oily sludge pit and surrounding landfill areas. Polycyclic aromatic hydrocarbons (PAHs), polychlorinated biphenyls (PCBs), benzene, toluene, ethylbenzene, xylene, pesticides, and heavy metals were detected in the samples.

The Site was proposed for listing on the NPL as the “West Memphis Landfill Site” on February 7, 1992 (57 FR 4827). The Site was listed final on the NPL as the “South 8th Street Landfill Site” on October 14, 1992 (57 FR 47184).

The EPA constructed a 1600 linear foot berm around the oily sludge pit under the CERCLA time-critical removal authority to minimize the spread of contamination that could result from flooding of the Site. Construction of the berm was completed between October 19, 1992, and November 4, 1992.

The EPA issued a Unilateral Administrative Order (UAO) to the Potentially Responsible Parties (PRPs) on May 23, 1992. The UAO required the PRPs to construct a fence around the former disposal areas and to investigate the large oily sludge pit. Construction of the fence was completed in July 1992. Although the PRPs initially undertook the pit investigation on August 31, 1992, the EPA took over the pit investigation in September 1992 and completed the Remedial Investigation/Feasibility Study (RI/FS) for the Site in 1993.

The 2.5 acre oily sludge pit and ancillary soil and debris in Area 2 of the landfill was identified as the principal threat and the remaining 16 acre landfill in Areas 1, 2, and 3 were identified as a low-level threat. The investigation of the landfill and oily sludge pit area was conducted through exploratory trenching and borings. Within the pit area, the acidic oily sludge was encountered at depths of 18 feet and contained volatile organic compounds, PAHs, pentachlorophenol, PCBs, and metals including lead and arsenic. The estimated total volume of the oily sludge pit and surrounding contaminated soils was 22,000 cubic yards. Municipal and industrial wastes were identified in the trenches through the landfill but no other hot spots were identified in the landfill contents.

The results of the ground water investigation are presented in a September 30, 1996, RI Report. A total of 14 monitoring wells were installed at the Site to determine the impact of contaminants leaching from the landfill and oily sludge pit into the ground water. Ground water sample analyses performed in 1993, 1995, 1996, and 1997 only identified inorganic contamination, principally lead, arsenic, and manganese. The ground water Feasibility Study (FS) report was completed in July 1997.

The source control operable unit which contained the 2.5 acre oily sludge pit, was identified as a principal threat, and the surrounding landfill, was identified as a low-level threat. The most significant threat to human health from the pit area was attributed to the low pH of the sludge which was corrosive and could have caused severe burns through accidental exposure. The oily sludge wastes also contained high concentrations of lead, PCBs, and PAHs. The surrounding landfill contained principally industrial debris and household trash. The landfill area was determined to be a low-level threat that did not require active remediation in order to be protective if there was no direct contact or ingestion. For the ground water operable unit, only inorganic contamination, principally lead, arsenic, and manganese was present in the ground water above either the Maximum Contaminant Levels established under the Safe Drinking Water Act or health-based cleanup goals established for the Site.

The EPA issued a Proposed Plan for the Site on July 27, 1993, and the public comment period closed on September 24, 1993. The EPA signed a Record of Decision (ROD) on September 29, 1994, for the source control operable unit. The remedial action objectives for the oily sludge pit were to prevent current and future direct contact with the highly corrosive wastes; prevent current and future direct contact, ingestion, and inhalation of contaminants in the pit waste and ancillary contaminated soil and debris; prevent the future migration of contaminants from the sludge pit area to other areas both on and off the site; and, prevent the potential for future migration of contaminants to the ground water at concentrations above appropriate action levels. The remedial goals for the oily sludge pit were established to meet the above remedial action objectives and are based on a recreational risk scenario developed in the baseline risk assessment. The cleanup goals were 3 mg/kg for total PAHs as measured by benzo(a)pyrene equivalents, 10 mg/kg for PCBs (total), and 500 mg/kg for lead.

The remedial action objectives for the landfill area were to prevent direct contact with and ingestion of the landfill contents; and, ensure that contaminants present in the landfill areas that may migrate into the ground water will not constitute a threat to public health and the environment. Remedial goals were not developed for the landfill area of the Site because the risk assessment indicated the landfill areas to be a low-level threat that will not require active remediation in order to meet the remedial action objectives.

The major remedy components in the 1994 ROD included:

• Excavation, stabilization, and off-site disposal of an estimated 22,000 cubic yards of contaminated sludge, soil, and debris exceeding the remedial action goals of 500 mg/kg lead, 10 mg/kg PCBs, and 3 mg/kg PAHs (as benzo(a) pyrene equivalents);

• The placement of a 2-foot thick soil cover over the remaining landfill area;

• Placement of deed notifications or other institutional controls to ensure that any future landowners will be notified that the land was a former Superfund site and has been cleaned up in accordance with CERCLA; and

• Long-term operation and maintenance and ground water monitoring.

In the 1994 ROD, the EPA also divided the Site into source control and ground water operable units and deferred the ground water remedy selection until additional site data had been collected.

Based on additional data collected during the remedial design, the PRPs proposed an alternative in-situ treatment method that would also meet the remedial goals and objectives for the Site at a lower cost. Upon evaluation of this additional data, the EPA proposed an amended remedy in a Proposed Plan dated January 1998. In this Proposed Plan, the EPA also identified three alternatives for the ground water contamination.

The EPA signed a ROD Amendment for the Site on July 22, 1998, amending the remedy for the source control operable unit and selecting a remedy for the ground water operable unit. The major components of the amended remedy for the source control operable unit included:

• In-situ stabilization/solidification of an estimated 23,500 cubic yards of contaminated sludge, soil, and debris exceeding the remedial action goals of 500 mg/kg lead, 10 mg/kg PCBs, and 3 mg/kg PAHs (as benzo(a) pyrene equivalents) and capable of meeting the more stringent performance standards for in-place management of the treated material and protection of the Site ground water;

• Installation of a 2-foot thick natural soil cover over part of Area 1 of the landfill and the treated oily sludge pit area in Area 2 of the landfill; and,

• Placement of deed notifications or other institutional controls to ensure that any future landowners will be notified that the land was a former Superfund site and waste has been treated and is being managed at the site.

The remedial action objectives for the ground water operable unit were to prevent exposure to the contaminated ground water, above acceptable risk levels for potential receptors, and restore the ground water to human health-based standards following remediation of the oily sludge pit. The cleanup goals for the ground water were 50 μg/l for arsenic, 2000 μg/l for barium, 4 μg/l for beryllium, 15 μg/l for lead, and 4,088 μg/l for manganese. For the ground water operable unit, monitored natural attenuation was the selected remedy for the hazardous substances in the ground water and institutional controls to prevent exposure to the ground water prior to achieving the remedial action goals.

The EPA issued a UAO on November 18, 1998, to the PRPs for implementation of the remedial action at the oily sludge pit. After further negotiations, the EPA and the settling PRPs signed a Consent Decree for implementation of the source control operable unit remedy. The Consent Decree was lodged with the U.S. District Court for the Eastern District of Arkansas on November 23, 1999, and entered by the Court on December 12, 2000. Since the Consent Decree had not been entered by the District Court prior to completing remediation of the oily sludge pit area, the remedial action was completed under the terms of the UAO.

The PRP's remedial construction contractor mobilized to the Site in June 1999 and initiated the first round of pilot tests in July 1999 to select a final reagent mix design for the stabilization/solidification treatment process. Pilot tests on the ancillary soils were completed in August 1999, and final testing on the oily sludge wastes was completed in November 1999. Stabilization of the oily sludge pit began in December 1999 and was completed in April 2000. A total of 19,376 cubic yards of oily sludge waste was treated through stabilization/solidification. Stabilization of the ancillary soils began in September 1999 and was completed in May 2000. A total of 20,372 cubic yards of soil was treated through stabilization/solidification. An additional 2000 cubic yards of oily sludge waste mixed with soil and debris were discovered in June 2000 and treatment was completed by August 2000. The PRPs completed installation of the 2.7 acre soil cover on the adjacent landfill area in September 1999, and over the 4.28 acre area of treated material in June 2000.

The borrow area used for the soil cover was graded and contoured so that repeated flooding by the Mississippi River and accumulation of silts and clay will establish a pond and surrounding wetland at the Site. Since 2000, the 1.58 acre borrow pit has accumulated water and vegetation due to flooding at the site. The water level in the borrow pit rises and falls in response to the water levels in the Mississippi River.

Institutional controls were implemented at the Site to prevent exposure to ground water and the treated waste and landfill contents. The Consent Decree (Section V.9.a, Section IX.24.b) lodged in the U.S. District Court for the Eastern District of Arkansas in November 1999 and entered in December 2000, specified a property easement, running with the land, that: (1) Grants a right of access for the purpose of conducting any activity related to the Consent Decree or any other activity related to implementing the ROD, including but not limited to, monitoring; and (2) grants to the right to enforce the land and water use restrictions listed in the Consent Decree to the United States, the State of Arkansas and its representatives, the other settling defendants, and other appropriate grantees. The land and water use restrictions are also specified in the property easement and include: (1) The prohibition on the installation of water wells in the alluvial aquifer until the remedial goals for the ground water operable unit have been achieved; (2) the prohibition on the removal of vegetation from the landfill cover if such removal may result in the subsequent erosion or removal of the soil cover over the landfill or treated material; and (3) the prohibition on the excavation or trenching into the treated material, landfill contents, or the associated soil cover with some exceptions. The property easement was executed on March 6, 2001, by the William L. Johnson Co. The prohibition on further excavation into the treated material, landfill contents, or soil cover effectively prohibits further well installation at the site due to the site-wide presence of the landfill and the treated oily sludge pit.

The EPA issued the Preliminary Close Out Report on September 19, 2000, and the Remedial Action report on December 31, 2001.

Long-term remedial action for the ground water operable unit was implemented through a sampling and analysis program conducted between January and November 2003. The sampling and analysis for the ground water included eight sampling events of the nine monitoring wells surrounding the oily sludge pit. The ground water monitoring program demonstrated that the combination of source area treatment and natural attenuation processes were effective in achieving the cleanup goals for the ground water operable unit. As a result of the completed remedial action for the oily sludge pit, the treated waste is no longer a source of the metals contamination previously detected in the ground water. The nine groundwater monitoring wells were plugged and abandoned in June 2003.

The EPA issued the Final Remedial Action Report on June 9, 2003, following achievement of the remedial goals for the ground water operable unit. The Final Close Out Report for the Site was issued on September 25, 2003.

The sampling and analysis program for the oily sludge pit remediation included confirmatory testing to demonstrate compliance with the physical and chemical performance criteria for the stabilized material, and verification testing to demonstrate that the native soil beneath the treated material met the remedial goals for the site. For the confirmatory sampling, samples of the treated oily sludge and ancillary soil material were collected for unconfined compressive strength (UCS) and synthetic precipitation and leaching procedure (SPLP) testing at a frequency of one for every 500 cubic yards and permeability testing at a frequency of one for every 1000 cubic yards. Treated material was tested following a 7-day, 14-day, and 28-day cure time. An allowance is made for 20 percent of the samples collected from the treated oily sludge material to exceed the SPLP performance standards by a factor of two times, and 10 percent of the samples to exceed the standard by a factor of five times.

A total of 48 confirmatory samples of the treated oily sludge material were collected for SPLP and UCS testing and 24 samples for permeability testing. Of the 24 samples for permeability testing, the average of all samples was 5 × 10 −7 cm/sec which exceeded the treatment goal of 1 × 10 −6 cm/sec as an allowable average. In addition, all samples exceeded the treatment goal of 1 × 10 −5 cm/sec as a maximum permeability value. Of the 48 samples for UCS analysis, the average UCS value was 68.9 which exceeded the treatment goal of 50 psi as an allowable average. The SPLP performance criteria was also met or exceeded in the 48 samples except for two samples that did not meet the lead performance criteria.

Confirmatory sampling of the stabilized ancillary soil material included 43 samples for chemical and physical testing. Of the 21 samples for permeability testing, the average of all samples was 7 × 10 −7 cm/sec which exceeded the treatment goal of 1 × 10 −6 cm/sec as an allowable average. In addition, all samples exceeded the treatment goal of 1 × 10 −5 cm/sec as a maximum permeability value. Of the 43 samples for UCS analysis, the average UCS value was 67 which exceeded the treatment goal of 50 psi as an allowable average. The SPLP performance criteria was also met or exceeded in the 43 samples except for four samples that did not meet the lead performance criteria.

Verification testing was conducted beneath the treated oily sludge pit and at the base of the ancillary soil excavations for exceedances of the remedial goals. Verification sampling beneath the oily sludge pit was accomplished through ten borings and split-spoon sampling of the native soil beneath the treated oily sludge. All of the verification samples for the oily sludge pit were either non-detect or below the remedial goals. Verification sampling was performed after the hydraulic excavators had excavated the ancillary soils from each of the cells within the pit area. Of the seven verification samples from the base of the excavations, none of the samples had an exceedance of the remedial goals.

The sampling and analysis program for the ground water included eight sampling events of the nine monitoring wells surrounding the oily sludge pit between January 2002 and November 2002. The ground water monitoring program demonstrated that the combination of source area treatment and natural attenuation processes were effective in achieving the cleanup goals for the ground water operable unit. Lead and arsenic concentrations were below the remedial goal in all wells during each of the eight sampling events. While barium and beryllium were both listed as contaminants of concern, these two metals have remained below the cleanup goals both before and after remediation of the oily sludge pit. Average manganese concentrations were also below the remedial goal in all wells during each of the eight sampling events.

There are no scheduled operation and maintenance requirements for this Site. Future site inspections may be conducted as necessary during property redevelopment efforts to ensure that the institutional controls remain protective of human health, and in support of the five year review remedy evaluations. The stabilized/solidified waste in the former oily sludge pit does not require any maintenance and was designed to remain in-situ based on the stringent treatment standards. The 2-foot thick soil cover on the landfill and treated oily sludge pit area does not require mowing or other vegetation control since the vegetation helps to reduce potential erosion during flooding events. Since the soil cover is intended to prevent accidental exposure to the landfill contents and the treated waste material, rather than act as an impermeable cap, roots from the vegetation will not impact the intended protectiveness of the soil cover. Soil and debris are also being added to the oily sludge mound area as part of the current property redevelopment efforts, creating an additional protective layer on the treated waste material. The security fence around the Site has been removed with the exception of the area within the hardwood wetlands that separates the Site from the St. Francis levee. A security gate at the entrance to the Site from South 8th Street was left in place at the request of the property owner to control access to the Site.

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) requires a five-year review of all sites with hazardous substances remaining above the health-based levels for unrestricted use of the site. Since the cleanup of the South 8th Street Landfill site utilized in-situ stabilization and solidification of the hazardous materials as the method to reduce the risk, the five-year review process will be used to insure that the site reuse and redevelopment activities are consistent with the site restrictions. The EPA completed the first statutory five-year review in June 2004 and determined that the remedy selected for the South 8th Street Landfill remains protective of human health and the environment. For future five-year reviews, EPA will continue to monitor the reuse and redevelopment activities at the South 8th Street Landfill site and perform a five-year review inspection. EPA plans to complete the next Five-Year Review by June 2009.

Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion from the NPL are available to the public in the information repositories.

The EPA, with concurrence of the State of Arkansas, has determined that all appropriate responses under CERCLA have been completed, and that no further response actions, under CERCLA, other than O&M and five-year reviews, are necessary. Therefore, EPA is deleting the Site from the NPL.

Because the EPA considers this action to be noncontroversial and routine, the EPA is taking it without prior publication of a notice of intent to delete. This action will be effective September 28, 2004, unless the EPA receives adverse comments by August 30, 2004, on a parallel notice of intent to delete published in the proposed rule section of today's Federal Register . If adverse comments are received within the 30-day public comment period on the proposal, the EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and it will not take effect, and the EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

EPA Region IX is publishing this direct final notice of deletion of the Ralph Gray Trucking Company Superfund Site from the NPL.

The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for remedial actions if conditions at a deleted site warrant such action.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective September 28, 2004, unless EPA receives adverse comments by August 30, 2004, on this document. If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely withdrawal of this direct final deletion before the effective date of the deletion, and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Ralph Gray Trucking Company Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete a release from the NPL, EPA shall consider, in consultation with the State, whether any of the following criteria have been met:

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

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

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

Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the deleted site above levels that allow for unlimited use and unrestricted exposure, CERCLA section 121(c), 42 U.S.C. 9621(c) requires that a subsequent review of the site be conducted at least every five years after the initiation of the remedial action at the deleted site to ensure that the action remains protective of public health and the environment. If new information becomes available which indicates a need for further action, EPA may initiate remedial actions. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Site:

(1) The EPA consulted with State of California on the deletion of the Site from the NPL prior to developing this direct final notice of deletion.

(2) The State of California concurred with deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final notice of deletion, a notice of the availability of the parallel notice of intent to delete published today in the “Proposed Rules” section of the Federal Register is being published in a major local newspaper of general circulation at or near the Site and is being distributed to appropriate federal, state, and local government officials and other interested parties; the newspaper notice announces the 30-day public comment period concerning the notice of intent to delete the Site from the NPL.

(4) The EPA placed copies of documents supporting the deletion in the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely notice of withdrawal of this direct final notice of deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the Site from the NPL:

The Ralph Gray Trucking Company Superfund Site is located in a 23-acre residential neighborhood of Westminster, Orange County, California. This neighborhood, also known as Westminster Tract Number 2633, is located north of the San Diego freeway (I-405) and is bounded by the Orange County flood control channel to the south, Goldenwest Avenue to the west, the U.S. Navy railroad (abandoned) to the north, and Chestnut Street to the east. The area to the west of the site is residential and the other surrounding areas are used for light industrial and commercial activities.

During the 1930s, the immediate area was primarily used for agricultural purposes and the site was known as the Murdy Dairy Farm. From 1936 until the late 1930's, Ralph Gray Trucking Company collected acid sludge, oil field wastes, and oil refinery wastes and used four unlined pits at the farm as a disposal site. The disposal pits were abandoned in place and remained undisturbed until the construction of 75 homes in the late 1950s. The Hintz Development Company moved the hazardous substances from the pits and buried the material in two unlined trenches which had been cut through the backyard areas of about 25 of the lots before the homes were built. Five homes were built directly over one of the original waste pits.

By 1965, residents reported black sludge seeping into their yards from the ground. Throughout the 1970s, residents routinely complained to city officials about the black sludge and buried waste material uncovered during excavations for swimming pools and house additions. In 1983, Orange County referred the site to the California Department of Health Services (DHS) for investigation. Between 1987 and 1991, DHS conducted annual seep removals and issued an advisory to the residents recommending they not eat vegetables and fruit grown in their yards. During the period, DHS also completed a Mulipathway Health Risk Assessment, developed a draft feasibility study (RI/FS), and prepared a draft Remedial Action Plan (RAP).

In 1989, EPA completed the Preliminary Assessment/Site Investigation (PA/SI) which concluded that local residents could potentially be exposed to hazardous substances via several exposure routes, including dermal contact, ingestion, and inhalation. The Site was proposed for listing on the NPL in July 1991 and placed on the NPL in October 1992. EPA decided to conduct a non-time-critical removal action because of the threat to public health posed by hazardous waste and contaminated soil at the Site and the length of time necessary to initiate a remedial action selected in a Record of Decision.

From November 1992 through April 1993, EPA conducted a focused investigation to further study the waste body. In general, the hazardous substances found at the site were present in two different forms: surface seep material and buried waste. Both forms of the material were comprised of volatile organic compounds (VOCs), various sulfur and organic sulfur compounds, and polynuclear aromatic hydrocarbons (PAHs).

EPA completed the Engineering Evaluation and Cost Analysis (EE/CA) in August 1993 which recommended a removal action to address the buried hazardous substances on site. The EE/CA found that releases of VOCs and sulfur dioxide from both seep and buried waste material had occurred and would continue to occur unless a removal action was conducted. The VOCs in the seep and buried waste material included known and potential human carcinogens, and the levels of sulfur dioxide could impact individuals with impaired respiratory systems.

The initial Action Memorandum (AM) for the site, dated March 29, 1994, authorized the non-time-critical removal action for the site. Under this AM, EPA proposed to excavate contaminated soils and subsurface hazardous substances from 25-30 properties, and dispose of the contaminated materials and soil off-site at an authorized disposal facility. The removal action required the razing and restoration of backyard improvements such as house additions, swimming pools, decks, and other structures. The AM also authorized EPA to conduct a groundwater investigation to determine whether contaminants had migrated to the underlying groundwater.

The second AM, dated May 12, 1995, authorized EPA to raze and reconstruct five homes which were built directly over the waste body. The third AM, dated July 8, 1996, authorized EPA to enter into a cash settlement agreement with one resident in lieu of landscaping restoration. The fourth AM, dated December 17, 1996, authorized EPA to enter into cash settlement agreements with the owner of the five homes that were razed during the removal in lieu of reconstruction.

The Multipathway Health Risk Assessment determined that the sum of excess individual lifetime cancer risks from the contamination at the site ranged from 6 x 10-6 to 7 x 10-5 which is sufficient to warrant an EPA response action given the close proximity of humans to the waste and the uncertainty associated with risk characterizations. In addition, a June 1993 review by DHS identified the potential for an acute health threat to individuals who inhaled the emissions from disturbed seep or buried wastes.

EPA entered into an Interagency Agreement with the U.S. Bureau of Reclamation (USBR) to conduct the removal activities at the site. USBR conducted engineering surveys of all the properties at the site, extensive soil sampling throughout the neighborhood to determine the extent of the waste body, prepared the removal design package, retained a removal contractor and restoration contractor, and administered the temporary relocation program. The removal action commenced in June 1994 and was completed in February 1997.

Pursuant to the first AM, EPA conducted groundwater sampling from nine previously installed monitoring wells to determine if cleanup activities were necessary. EPA conducted sampling in July 1997 through November 1997 and in October and November 1999. Based on the sampling results, EPA determined that neither the intermediate nor deep aquifers, which are the only viable potential sources of drinking water in the area, were impacted by the contamination at the site. Sampling of the perched shallow zone indicated minor water quality impacts from the site were present. However, EPA did not propose any further action because (1) this perched zone is not a viable potential source of drinking water, hence human exposure to the residual contamination is unlikely, and (2) the residual contamination did not pose a significant health risk even in the unlikely event of human consumption.

During the removal work at the Site, EPA installed vault boxes for a potential soil vapor extraction (SVE) system. After EPA conducted soil and groundwater sampling, EPA determined that the removal action was successful and that the SVE system was not needed. In April 2003, EPA properly abandoned the SVE vaults and the nine groundwater monitoring wells.

The cleanup of the site complies with the “clean closure” requirements, consistent with the Resource Conservation and Recovery Act of 1976, as amended, 40 CFR 264.111. EPA believes that it has found and removed all significant sources of hazardous waste from the site. Confirmatory sampling verifies that EPA has achieved the Action Memoranda cleanup objectives. There are no hazardous substances remaining at the site above health-based levels, and, therefore, no five-year reviews will be required.

Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion from the NPL are available to the public in the information repositories.

The EPA, with concurrence of the State of California, has determined that all appropriate responses under CERCLA have been completed and that no further response actions under CERCLA are necessary. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective September 28, 2004, unless EPA receives adverse comments by August 30, 2004. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and it will not take effect and, EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

To be deleted from the NPL is: the Niagara County Refuse Superfund site, Town of Wheatfield, Niagara County, New York.

A Notice of Intent to Delete for the Niagara County Refuse site was published in the Federal Register on March 17, 2004. The closing date for comments on the Notice of Intent to Delete was April 16, 2004. EPA received two comments on the proposed deletion during the public comment period. Both comments were from local residents opposed to the deletion due to historical flooding problems experienced at their homes associated with wetlands adjacent to the landfill and their properties. The commentors assigned a portion of the blame for the flooding to the presence of the landfill and EPA's actions at the landfill. In response, EPA notes that research shows that poor drainage and flooding were evident at least as far back as the 1970s and that both federal and State designated wetlands located to the north of the site have been regulated since the late 1970s. Steps were taken during the remediation of the landfill to minimize or reduce the impacts of increased surface water drainage to an already existing flood prone environment. EPA's decision to propose the site for delisting is based on the successful implementation of the multi-layered cap remedy to contain landfill wastes to prevent the migration of contaminants into the surrounding environment, thereby mitigating risks to human health and the environment. The monitoring data collected on a regular basis since the construction of the remedy was completed in December 2000 confirm that the remedy is operating as designed and is protective of human health and the environment. EPA identifies sites that appear to present a significant risk to public health, welfare, or the environment and it maintains the NPL as the list of those sites. As described in § 300.425(e)(3) of the NCP, any site or portion thereof deleted from the NPL remains eligible for remedial actions in the unlikely event that conditions at the site warrant such action in the future. Deletion of a site from the NPL does not affect responsible party liability or impede agency efforts to recover costs associated with response efforts.

Sections 1815(d) and 1833(j) of the Social Security Act (the Act) require that, whenever a payment to a provider, supplier, or other entity is more than (overpayment) or less than (underpayment) the amount that was due to the provider, supplier, or other entity, we assess interest on the amount of the overpayment that the provider, supplier, or other entity owes to us or the underpayment that we owe to the provider, supplier, or other entity. This interest becomes due if the overpayment amount owed to us or the underpayment amount owed by us is not paid within 30 days of the date of the final determination of the overpayment or underpayment.

Payments we receive are applied first to accrued interest and then to principal. Interest we collect on overpayments and Medicare Secondary Payer (MSP) recoveries goes to the Treasury as general revenue. The principal amount we recover is used to reimburse the applicable Medicare trust fund—the Federal Hospital Insurance Trust Fund or the Federal Supplementary Medical Insurance Trust Fund. Interest we pay on Medicare underpayments comes from the applicable Medicare trust fund.

We determine the rate of interest in accordance with 42 CFR 405.378 by comparing the Private Consumer Rate with the Current Value of Funds Rate and assessing the interest at the higher of the two rates that is in effect on the date of the final determination of the amount of the overpayment or underpayment.

Interest is calculated from the date of the final determination and is owed if the amount of the overpayment or underpayment is not paid within 30 days. Interest accrues daily but is assessed and calculated in 30-day periods. A period that is less than 30 days is considered to be a full 30-day period.

In this final rule, we are changing the method of calculating the amount of interest that is assessed on overpayments and underpayments to better align our practices to a commercial business model. Previously, we assessed interest prospectively (30 days into the future). Under private sector practices, interest is assessed on delinquent debts retrospectively.

Effective with this final rule, periods of less than 30 days will not be treated as a full 30-day period. We will assess interest only for full 30-day periods when payment is not made on time. The date of the final determination is the first day of the first 30-day period. As an example, if a Medicare overpayment is not paid within the 30-day time period specified in the demand letter, the debtor would owe interest for one 30-day period on day 31. No interest would be due on day 29 or day 30.

The change in the method of calculation applies only to overpayments and underpayments whose date of final determination occurs on or after the effective date of this final rule.

We are making a technical correction to correct a reference that was cited in a previous revision of the Code of Federal Regulations (CFR). In § 411.24, the rate of interest to be assessed on Medicare Secondary Payer debts is incorrectly referenced as appearing in § 405.376(d), rather than § 405.378(d), which is the correct reference.

Section 1862(b)(2)(B)(i) of the Act provides express authority to assess interest on MSP debts. Our longstanding policy and practice have been to calculate interest on MSP debt using the method applicable to Medicare overpayments and underpayments as set forth in § 405.378. Specifically, interest is calculated in 30-day periods, and a period that is less than 30 days is considered to be a full 30-day period for MSP debts as well as for Medicare overpayments and underpayments.

It was and remains our intent to use the revised methodology set forth in this final rule for both types of debts: MSP recoveries and non-MSP Medicare overpayments and underpayments. Specifically, periods of less than 30 days will no longer be treated as a full 30-day period. However, the proposed rule published in the Federal Register (68 FR 43995) on July 25, 2003 did not make this intent explicit, even though the regulatory impact analysis in that proposed rule included MSP debts in assessing the costs and benefits of this regulatory change.

Therefore, this final rule amends § 411.24 to clarify that this change in the methodology for calculating interest applies to MSP debts, as well as Medicare overpayments and underpayments under § 405.378. As an example, where a group health plan based MSP debt is not paid within the 60-day time period specified in the recovery demand letter, under the current practice the debtor would owe interest for three 30-day periods on day 61, for four 30-day periods on day 91, and so forth. Under this final rule, the debtor would owe interest for two 30-day periods on day 61, for three 30-day periods on day 91, and so forth.

This change in the method of calculation applies only to those MSP debts where the debt is established on or after the effective date of this final rule. MSP debts are routinely established as of the date of the recovery demand letter.

The provisions of the proposed rule were the following:

• In § 405.378, we stated that we would revise paragraph (b)(2) to delete the requirement that periods of less than 30 days be treated as a full 30-day period.

• In § 411.24, we stated that we would revise paragraph (m)(2)(iii) to correct the reference to § 405.376(d) by changing the reference to § 405.378(d).

No public comments were received in response to the provisions of the proposed rule which, consequently, have not been changed in this final rule. However, we have made a clarifying addition. In § 411.24, we have revised paragraph (m)(2)(ii) to make explicit that interest is applied for full 30-day periods.

This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget (OMB) under the authority of the Paperwork Reduction Act of 1995 (PRA).

We have examined the impacts of this rule as required by Executive Order 12866, (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 16, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any one year).

This final rule is not a major rule. It simply changes the way we calculate interest on overpayments and underpayments and MSP debts. It does not change how overpayments or underpayments are determined, nor does it require providers, suppliers, or other entities to change the way they interact with us in determining overpayments and underpayments. It does not change how MSP debts are established.

During fiscal year (FY) 2001, we recovered $167 million in interest on delinquent overpayments and MSP debts. In FY 2002 and FY 2003, we recovered $115.7 million and $93.4 million, respectively. Had this final rule been in effect, interest recoveries would have been $153 million in FY 2001, $106.1 million in FY 2002, and $85.6 million in FY 2003. This represents a difference of $14 million for FY 2001, $9.6 million for FY 2002, and $7.8 million for FY 2003 due to the change in the interest calculation. During FY 2001, we paid $2.6 million in interest on underpayments; during FY 2002, we paid $5.2 million; and during FY 2003, we paid $4.1 million. Had this final rule been in effect, in FY 2001 interest payments would have been $2.4 million, a difference of $0.2 million. In FY 2002 interest payments would have been $4.8 million, a difference of $0.4 million; and in FY 2003 interest payments would have been $3.8 million, a difference of $0.3 million.

The RFA requires agencies to analyze options for regulatory relief of small businesses, nonprofit organizations, and government agencies. Most hospitals, and most other providers, suppliers, health maintenance organizations, competitive medical plans, and health care prepayment plans are small entities, either by nonprofit status or by having revenues of $29 million or less in any one year. During FY 2001, we recovered $167 million in interest on delinquent overpayments and MSP debts; during FY 2002, we recovered $115.7 million; and during FY 2003, we recovered $93.4 million. Had this final rule been in effect, interest recoveries would have been $153 million during FY 2001, $106.1 million during FY 2002, and $85.6 million during FY 2003, a difference of $14 million, $9.6 million, and $7.8 million, respectively. This would amount to 0.1 percent of the $13.5 billion in overpayments and MSP debts recovered during FY 2001 and less than 0.1 percent of the $13.4 billion recovered during FY 2002 and of the $14.5 billion recovered during FY 2003. During FY 2001, we paid $2.6 million in interest on underpayments; during FY 2002, we paid $5.2 million; and during FY 2003, we paid $4.1 million. Had this final rule been in effect, we would have paid $2.4 million during FY 2001, $4.8 million during FY 2002, and $3.8 million during FY 2003, a difference of $0.2 million, $0.4 million, and $0.3 million, respectively. This would amount to less than 0.1 percent of the $236 billion, $246.8 billion, and $272.6 billion in benefit payments made during FY 2001, FY 2002, and FY 2003, respectively. For further details, see the Small Business Administration's regulation that set forth size standards for health care industries at 65 FR 69432.

In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds.

This final rule has no operations impact on any provider, supplier, or other entity including small rural hospitals. The final rule simply changes the way we calculate interest we assess on overpayments and underpayments and MSP debts. It does not change how overpayments or underpayments are determined nor require providers, suppliers, or other entities to change how they interact with us in determining overpayments or underpayments. Therefore, we have determined that this final rule would not have a significant effect on the operations of a substantial number of rural hospitals. Because the interest we collect in a year far exceeds the interest we pay, the majority of providers, suppliers, and other entities will benefit from changing the method of calculating interest.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in an expenditure in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million. During the three-year period from FY 2001 through FY 2003, we recovered $167 million, $115.7 million, and $93.4 million, respectively, in interest on delinquent overpayments and MSP debts. Had this final rule been in effect, interest recoveries would have been $153 million during FY 2001, a difference of $14 million. For FY 2002, interest recoveries would have been $106.1 million, a difference of $9.6 million, and for FY 2003, $85.6 million, a difference of $7.8 million. During FY 2001, we paid $2.6 million in interest on underpayments. Had this final rule been in effect, we would have paid $2.4 million, a difference of $0.2 million. During FY 2002, we paid $5.2 million in interest on underpayments, and during FY 2003, we paid $4.1 million. Had this final rule been in effect, interest payments in FY 2002 would have been $4.8 million, a difference of $0.4 million, and in FY 2003, $3.8 million, a difference of $0.3 million.

This final rule does not have an impact on State, local, or tribal governments. It reduces annual expenditures by providers, suppliers, or other entities in the private sector because it changes the way that we compute interest on any delinquent overpayments or MSP debts owed to us. Additionally, the change in interest calculation that we pay on underpayments owed to providers, suppliers, and other entities will not be an expenditure by a State, local, or tribal government.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This final rule imposes no direct requirement costs on State and local governments, does not preempt State law, or have any Federalism implications. By changing how we calculate interest, we are reducing the amount of interest assessed on overpayments and MSP debts owed to us and underpayments owed by us to providers, suppliers, and other entities.

This final rule reduces the amount of interest assessed on Medicare overpayments and underpayments and MSP debts. During FY 2001, we recovered $167 million in interest on delinquent overpayments and MSP debts. Had this final rule been in effect, interest recoveries would have been $153 million, a difference of $14 million. During FY 2001, we paid $2.6 million in interest on underpayments. Had this final rule been in effect, we would have paid $2.4 million, a difference of $0.2 million. During FY 2002, we recovered $115.7 million in interest on delinquent overpayments and MSP debts. Had this final rule been in effect, interest recoveries would have been $106.1 million, a difference of $9.6 million. During FY 2002, we paid $5.2 million in interest on underpayments. Had this final rule been in effect, we would have paid $4.8 million, a difference of $0.4 million. In FY 2003, interest recoveries were $93.4 million and would have been $85.6 million, or $7.8 million less, had this rule been in effect. In FY 2003, interest we paid was $4.1 million and would have been $3.8 million, or $0.3 million less, had this rule been in effect. There is no effect on the Medicaid program.

We considered a number of other methods to use in calculating the amount of interest owed. We assessed the relative merits of alternative calculation methods based on two primary criteria: comparability to a commercial business model and secondly, relative ease and cost of administration. Applying the first criterion precludes continuing our current calculation method. Under this final rule, we are able to use commercially obtained off-the-shelf software to calculate interest. As in the private sector, the debtor will still have a set payment period to pay the amount owed without additional interest being assessed during the payment period. We considered calculating and assessing interest on a daily basis but determined this would be prohibitively expensive and administratively burdensome for Medicare contractors, providers, beneficiaries, and other entities.

This final rule is not a major rule. It does not change the way overpayments or underpayments are determined, nor how MSP debts are established. It does not have a significant impact on a substantial number of rural hospitals. Since a partial period is no longer considered a full 30-day period, interest assessed on amounts owed to us will be reduced. Therefore, this final rule reduces State, local, and tribal government expenditures. The final rule does not impose any direct requirement costs on State and local governments and does not preempt State law or have any Federalism implications.

For these reasons, we are not preparing analyses for either the RFA or section 1102(b) of the Act because we have determined that this rule does not have a significant economic impact on a substantial number of small entities or a significant impact on the operations of a substantial number of small rural hospitals.

In accordance with the provisions of Executive Order 12866, this final rule was reviewed by the Office of Management and Budget.

Approximately 100 private sector property insurers issue flood insurance policies and adjust flood insurance claims under their own names, based on the Arrangement with the Federal Insurance Administration (FIA) (44 CFR Part 62, Appendix A). The WYO insurers receive an expense allowance and remit the remaining premium to the Federal Government. The Federal Government pays for flood losses incurred through WYO insurers and pays loss adjustment expenses based on a fee schedule. Litigation costs, including court costs, attorney fees, judgments, and settlements, are paid by FIA based on submitted documentation. The Arrangement provides that under certain circumstances reimbursement for litigation costs will not be made. On October 14, 2003, FEMA published a proposed rule (68 FR 59146) that would make several changes to the Arrangement and related regulations.

During the comment period, FEMA received comments from two insurance agent trade associations, one insurance company trade association, two WYO Companies, and a committee of WYO Company representatives with whom FEMA regularly consults on WYO matters. The two insurance agent trade associations requested an opportunity to present oral comments during the comment period, and pursuant to 44 CFR 1.6, FEMA arranged for such a session, which was held on November 6, 2003. Also in attendance with an opportunity to comment were WYO Company representatives, an attorney representing the committee of WYO representatives, and representatives from an insurance company trade association.

The two insurance agent associations in their oral and written comments opposed FEMA's proposal to clarify 44 CFR 61.5 by creating a new Subsection f from the current text of Subsection e to provide that agents selling Standard Flood Insurance Policies issued by a WYO Company, like agents selling the policies issued directly by FEMA, act for the insured and are not agents of the WYO Company. The committee of WYO representatives supported the change in its oral and written comments and urged that the proposed changes in their entirety be made final. One WYO Company also urged that the proposed changes in their entirety be made final. Because of the issues raised, FEMA believes this proposed change warrants further comment and review. Therefore, FEMA is publishing this interim final rule without the change to 44 CFR 61.5. Comments on whether changes to 44 CFR 61.5 should be added to the regulations are invited in response to this interim final rule. FEMA will consider making changes to 61.5 in the final rule after reviewing any further comments. FEMA is also specifically seeking comments on whether this provision has a significant economic impact on a substantial number of small entities. FEMA hopes to publish the final rule in 2004.

One of the insurance trade associations, in opposing the change to 44 CFR 61.5, also opposed the change to 44 CFR 62.22 without explanation. That change codifies the understanding of FEMA and numerous court rulings and specifically provides that Federal jurisdiction under 42 U.S.C. 4072 encompasses lawsuits against WYO Companies. The association said it supports jurisdiction in Federal Courts, but opposes Federal preemption of State law as it applies to lawsuits between WYO Companies and independent agents and agencies. It did not identify which portions of the proposed rule are related to this concern. We have looked at the concerns raised but do not understand how section 62.22 applies nor do we understand the concern about preemption. Therefore we did not make any changes to this interim final rule based on these comments. Rather we invite further comments, which we will consider prior to publishing a final rule.

The remaining amendments in the proposed rule related to Appendix A to Part 62—Federal Emergency Management Agency, Federal Insurance Administration, Financial Assistance/Subsidy Arrangement.

The insurance company trade association opposed only allowing, at the discretion of the Administrator, an appeal to the WYO Standards Committee of a decision by the Administrator not to reimburse for litigation. It also suggested that the Administrator be required to act within 30 days, with a 30-day extension at the Administrator's discretion. (See Article III.D.3.d.) The committee of WYO Company representatives also expressed concern about this change, but said it accepted it as part of the complete set of changes in the proposed rule. FEMA believes the Administrator should have the discretion to refer appeals to the WYO Standards Committee, so the interim final rule does not change this provision. The 30-day deadline for the Administrator to act has not been added. FEMA believes that a reasonable time to act is implied, so a deadline is not necessary. However, we have clarified that the Administrator must act within a reasonable time.

Also, the committee of WYO Company representatives expressed concern about the “pattern of errors” basis for not reimbursing for litigation, but said it accepted it as part of the complete set of changes in the proposed rule. One of the WYO Companies opposed the “pattern of errors” (Article III.D.3.b) provision as lacking “definition and statutory authority.” It also contended that “at a bare minimum to pass constitutional muster, the federal government, not the auditor, must provide advance written notice and an opportunity to challenge the alleged “pattern of errors”.” While FEMA does not agree with the comment and continues to believe that it has broad statutory authority to set the rules for the administration of the NFIP, and further believes that the right to appeal any denial of reimbursement for litigation in the Arrangement is sufficient safeguard for the WYO Companies, FEMA is withdrawing the “pattern of errors” portion of the proposed rule. Rather FEMA will continue to rely on the “significantly outside the scope of the Arrangement” standard for reimbursement decisions including those decisions related to a pattern of errors.

One of the WYO Companies suggested clarifying a provision in Article I that the WYO Companies and the Federal Government are the sole parties under the Arrangement. FEMA agrees and has made that change in the interim final rule.

This WYO Company suggested several other changes. One was to clarify that, under the proposed revision to the procedures for a WYO Company that is ceasing participation (Article V.C and V.E), transferring the flood insurance book of business to another WYO Company is an option for the company and will not be required by FIA. This was FEMA's intent. FEMA believes that the revision to Article V.C is clear that this is an option for the company but that it will not be required by FIA. In light of the WYO Company's comment, FEMA has changed Article V.E to clarify any ambiguity. Article V.D has a provision similar to the one in V.E and has been likewise clarified.

Another suggested change was to make the 2004 Arrangement run concurrently with Congressional reauthorization. In the past, the reauthorization dates have been October 1 and January 1. The NFIP was recently reauthorized by Congress through September 30, 2008 (Public Law 108-264). In light of this reauthorization, the concern that prompted this comment appears to have been addressed for a number of years.

Finally, the proposed rule did not contain any change in the reimbursement for unallocated loss adjustment expense (ULAE), which is in Article III.C.1. However, a WYO Company proposed to increase the reimbursement for ULAE from 3.3% to 6.0%. FEMA had been reviewing this issue prior to the proposed rule and had requested that the WYO Companies furnish data. However, the data received was not sufficient to make a decision, so the proposed rule did not contain any change regarding reimbursement for ULAE. Now, FEMA plans to make a detailed data call to the WYO Companies, and after reviewing the responses, will make a decision as to whether and to what extent it believes a change is justified. Any change will require another rulemaking action. FEMA does not believe that it will be practical to make any change effective for the Arrangement year beginning October 1, 2004, so any change would likely be effective October 1, 2005.

In addition to the changes discussed above, FEMA has made a few editorial changes.

During July 2004, FEMA will send a copy of the offer for the 2004-2005 Arrangement year, together with related materials and submission instructions, to all private insurance companies participating under the current 2002-2004 Arrangement. Any private insurance company not currently participating in the WYO Program but wishing to consider FEMA's offer for 2004-2005 may request a copy by writing: Federal Emergency Management Agency, Mitigation Division, Attn: WYO Program, Washington, DC 20472, (facsimile) 202-646-3445, or (e-mail) Edward.Connor@dhs.gov.

We have prepared and reviewed this interim final rule under the provisions of Executive Order 12866, Regulatory Planning and Review. Under Executive Order 12866, 58 FR 51735, Oct. 4, 1993, a significant regulatory action is subject to review by the Office of Management and Budget (“OMB”) and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

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

In determining whether we should move forward with this rule, we considered three alternatives. The First Alternative was to take no action and to allow the WYO Arrangement to expire as a result. 44 CFR 62.23 would become inoperative, the appendixes to Part 62 would expire, and effective October 1, 2004 the companies no longer would have a relationship with FEMA except for the runoff of existing policies and the sale and administration of the Standard Flood Insurance Policies by the participating private WYO Companies would cease. This alternative would have the following adverse impact on the number of NFIP policies-in-force, future Disaster Assistance, and on those individuals who as a result are not insured at the time of their next flood loss.

The number of policies-in-force can be expected to drop following the expiration of the WYO Arrangement because insurance agents would lose their vehicle for renewing the existing policies. These agents would be required to establish a relationship with our Direct-side contractor and then renew their existing policyholders through that contractor. Many agents would not make this transition. Even for those who would make this transition, there would be a delay in completing this change of relationship, which would result in a delayed renewal for many policies. Any losses suffered by those policyholders in the interim would be uninsured, causing significant economic loss to them.

The net effect once all agents who intend to continue writing flood insurance have established the proper Direct-side relationship will be a greatly reduced NFIP policyholder base. Any quantification of that drop is speculative at this point, but FEMA's informed judgment is up to a 5 percent decrease in the number of policyholders (which is about 250,000 policies). Such a decline in flood insurance policies would create more uninsured flood victims with (1) a corresponding increase in Disaster Assistance, (2) more individuals facing large monthly payments as they repay their Disaster Loans, and (3) victims without available Federal Assistance when no Presidential Disaster Declaration is declared. Since average annual NFIP losses currently exceed $800 million, this would mean an expected reduction of NFIP losses of between $10 million to $40 million—an amount that would be either directly borne by the property owner, or partially shouldered by the taxpayers through Disaster Assistance or loans.

If the Arrangement were to be implemented again in the future, it would be unrealistic to expect that the drop in NFIP policies-in-force would be restored quickly, and there likely would be an overall long-term negative influence on policies in force. There also would be a moderate to serious long-term impact on the favorable working relationship FEMA has developed with the WYO Companies.

A Second Alternative would be to extend the current WYO Arrangement and to delay further or eliminate the changes to the WYO Arrangement included in this rule. Although the consequences would not be as significant as the First Alternative, delaying the rule leaves the Program subject to the following possible adverse developments:

The rule will clarify our current understanding and would ensure that future NFIP litigation will be properly brought in Federal courts. If the rule is delayed, the Program and insureds will incur increased costs related to cases improperly brought in State courts, and there is a risk of inconsistent application of laws and inappropriate application of State law to this Federal Program.

Certain provisions of the proposed rule are intended to reduce the litigation exposure throughout the Program. For example, the limitation on situations where premium refunds are allowed should restrict the number of future lawsuits on this issue. Therefore, a delay in this rule could result in unexpected litigation costs to the WYO Companies and FEMA.

The Third Alternative is to amend the Arrangement as outlined in this interim final rule. We believe that doing so would prevent the cost shifting to the Federal taxpayers outlined in the first two alternatives. In addition, by clarifying the rule to comport with our understanding of jurisdiction, we will ensure that cases are brought in the appropriate Federal courts, and the provision limiting litigation exposure to the Program and its participants would minimize unnecessary proceedings (including those in State courts), protect the Federal Treasury, and further the purposes of the Program. We further believe that the clarity that this interim final rule brings to the NFIP would make it easier for companies and agents to sell NFIP policies thereby further transferring the costs of floods from the taxpayers to this premium funded Program.

OMB has reviewed this rule under the principles of Executive Order 12866. This rule is a significant rule as defined under Executive Order 12866.

This interim final rule falls within the exclusion category of 44 CFR Part 10.8(d)(2)(ii), which addresses the preparation, revision, and adoption of regulations, directives, manuals, and other guidance documents related to actions that qualify for categorical exclusions. Because no other extraordinary circumstances have been identified, this interim final rule will not require the preparation of either an environmental assessment or an environmental impact statement as defined by the National Environmental Policy Act.

This interim final rule does not contain a collection of information and is therefore not subject to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Under the Regulatory Flexibility Act, agencies must consider the impact of their rulemakings on “small entities” (small businesses, small organizations and local governments). When 5 U.S.C. 553 requires an agency to publish a notice of proposed rulemaking, the Act requires a regulatory flexibility analysis for both the proposed rule and the final rule if the rulemaking could “have a significant economic impact on a substantial number of small entities.” The Act also provides that if a regulatory flexibility analysis is not required, the agency must certify in the rulemaking document that the rulemaking will not “have a significant economic impact on a substantial number of small entities.”

We believe that this rule does not have a significant economic impact on a substantial number of small entities, and as a result at the time of the proposed rule we issued a certification that the rule did not.

We received a comment that indicated that the proposed change to 44 CFR 61.5 would have a significant impact on a substantial number of small entities. In light of that comment, we have decided not to include that provision in this interim final rule. Rather, we are requesting additional comments on the proposed change to 44 CFR 61.5, as outlined in the proposed rule, and in particular on whether it would have a significant impact on a substantial number of small entities. We request that comments on this issue be as specific as possible when commenting on the type and scope of the impact and to provide as much quantitative information as possible to assist us in understanding the issue. If, after our own further evaluation and review of any additional comments that we receive, we believe the change to 44 CFR 61.5 is still warranted and think that it may have an impact, we will prepare an Initial Regulatory Flexibly Analysis (IFRA). If we prepare an IFRA we will publish it and seek public comment prior to publication of a final rule on 44 CFR 61.5.

Executive Order 13132, Federalism, dated August 4, 1999, sets forth principles and criteria to which agencies must adhere in formulating and implementing policies that have federalism implications; that is, regulations that have substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and must consult with State and local officials before implementing any such action to the extent practicable.

FEMA has reviewed this interim final rule under Executive Order 13132 and concludes that the interim final rule has no federalism implications as defined by the Executive Order. FEMA has determined that the rule does not significantly affect the rights, roles, and responsibilities of States, involves no additional preemption of State law, and does not limit State policymaking discretion.

This is a synopsis of the Commission's Report and Order, MB Docket No. 04-24, adopted July 14, 2004, and released July 20, 2004. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202 863-2893, facsimile 202 863-2898. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2004 TAC of arrowtooth flounder in the BSAI was established as 10,200 metric tons by the final 2004 harvest specifications for groundfish in the BSAI (69 FR 9242, February 27, 2004).

In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS, has determined that the arrowtooth flounder TAC in the BSAI has been reached. Therefore, NMFS is requiring that further catches of arrowtooth flounder in the BSAI be treated as a prohibited species in accordance with § 679.21(b).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the prohibition of retention of arrowtooth flounder in the BSAI.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.